Top DOJ official warns about Texas shooter's encrypted phone

Rod Rosenstein said police need to access the shooter's encrypted phone.

ByABC News
November 9, 2017, 8:32 PM

— -- In the wake of the attack at a church in Sutherland Springs, Texas, last weekend that left 26 people dead and investigators unable to access the shooter’s encrypted phone to search for possible leads, Deputy Attorney General Rod Rosenstein made clear in a speech today that he is prepared to do battle with technology giants to get whatever might be stored on that device.

“Nobody has a legitimate privacy interest in that phone. The suspect is deceased,” Rosenstein said. “Even if he were alive, it would be legal for police and prosecutors to find out what is in the phone.”

Tuesday afternoon, Christopher Combs, the FBI’s special agent in charge in Texas, said the shooter’s phone was flown to the agency’s lab in Quantico, Virginia. Combs refused to name the phone model, but sources familiar with the matter tell ABC’s Jack Date that the phone is an Apple product.

“When you shoot dozens of innocent American citizens, we want law enforcement to investigate your communications and stored data,” Rosenstein said. “We expect police and prosecutors to investigate such horrendous crimes. There are things that we need to know.”

Apple, for its part, said in a statement that it “immediately reached out to the FBI after learning from their press conference on Tuesday that investigators were trying to access a mobile phone. We offered assistance and said we would expedite our response to any legal process they send us.”

Rosenstein appeared to scoff at such an offer today, noting, “...The company that built it claims that it purposely designed the operating system so that the company cannot open the phone even with an order from a federal judge.”

A few weeks ago, FBI Director Christopher Wray attempted to quantify the problem, saying, “In the first 11 months of this fiscal year alone, we were unable to access the content of more than 6,900 -- that’s six-thousand, nine-hundred -- mobile devices using appropriate and available technical tools, even though we had the legal authority to do so.”

It’s a vexing debate that erupted onto the national stage after the 2016 massacre in San Bernardino, California, and led to a court battle between DOJ and Apple as investigators urgently sought access to the dead shooter’s I-phone to find possible accomplices, outside support, or other targets. The Obama Administration’s Justice Department presented a similar argument to Rosenstein, but Apple refused to open the phone citing concerns that creating a so-called digital “backdoor” could potentially expose all of its customers to security breaches.

Pro-encryption New America’s Open Technology Institute argues that “giving government investigators special access to encrypted data is technically impossible to do without seriously undermining our cybersecurity against other threats, while also undermining the U.S. tech economy, and threatening human rights across the globe.”

But the high profile fight -- pitting civil liberties and privacy advocates against national security concerns -- was never resolved. In the middle of the court battle, an outside party came forward to the FBI with a way to get into the iPhone.

Rosenstein’s position was echoed today by one influential senator, Dianne Feinstein, the top Democrat on the Judiciary Committee and senior member of the Select Committee on Intelligence, who says it may be time for a legislative solution.

“This is a real problem ... These are American companies, and they control this whole empire. And they have to be concerned about attacks on our country and the ability to open devices with sound justification.”

The California Democrat even sought to tie the current controversy to the fallout over Russia exploiting popular American social media platforms to meddle in the 2016 election, which caught the industry flat footed.

“I think things are changing as a result of the Russia investigation,” Feinstein said, adding that tech companies have a responsibility "to see that people not misuse the system for criminal purposes and, most importantly, to strike at what is the crown jewel of a democracy which is a free and fair election.”

“Either they’re going to be able to make some changes, or we are going to have to,” Feinstein warned.

The senator said she is going to take a fresh look at legislation she drafted last year with Senate Intelligence Committee Chairman Richard Burr to try to force companies to “comply with court orders to protect Americans from criminals and terrorists.”

But there is far from a consensus in Congress on this issue. Many members described being on the fence, if not outright opposed.

Sen. Mark Warner, D-VA, Vice Chairman of the Intelligence Committee and himself a former tech entrepreneur, said, “I’m open to ongoing conversations with the tech companies, but the notion of a back door still bothers me.”

Sen. Lindsey Graham, R-SC, said he could “see both sides” and sees “no ready solution.”

Still others said the encryption issue is beside the point, given that the Texas shooter, Devin Kelley, should never have been allowed to buy guns in the first place if it weren’t for the Air Force failing to report the veteran’s domestic violence conviction.

“The phone is kind of after the fact here,” Sen. Martin Heinrich, D-NM, told ABC News, but saying on encryption, “It’s a double-edged sword, right? It cuts both ways. It’s hard to do that in a way ... that still protects people’s privacy and doesn’t actually make all of these devices even weaker when it comes to our foreign adversaries.”

But Rosenstein argued today in dire terms that could signal a tough battle ahead, saying, “Maybe we eventually will find a way to access the data. But it costs a great deal of time and money. In some cases, it surely costs lives. That is a very high price to pay. We need to find a solution."

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