Remember all that legal head-butting and posturing last year when the feds tried to force Apple to help it break into San Bernardino shooter Syed Farook’s iPhone? It ended with a whimper when the FBI found another way into the phone.
Now law enforcement appears ready for Round Two.
On Sunday November 5 Devin Kelley walked into a church in Sutherland Springs, Texas, and murdered 26 people. He was then shot dead by police. The FBI wants to get into Kelley’s iPhone to find out if he’s got links to militant groups or was just a lone wacko.
The day after the shooting, Chris Combs of the FBI (which is helping the Texas Rangers in the investigation) was on TV complaining that consumer smartphones are just too darn secure to break into. He wouldn’t say what kind of smartphone Kelley owned, only that the FBI sent Kelley’s phone out to its forensics lab in Virginia, which would try to obtain its contents.
Next, we hear that the Rangers have served Apple with a search warrant (dated November 9) demanding access to Kelley’s iPhone SE. Apparently the forensics lab scientists couldn’t break into it. The warrant requests the files on shooter Kelley’s iPhone SE and in his iCloud account (if one exists). According to reports, it also requests the files in a second phone used by Kelley–a cheap phone made by a completely different phone maker (LG)!
There’s plenty of irony to go around here.
First of all, law enforcement probably had the chance to unlock Kelley’s phone using the fingerprint off of Kelley’s cold, dead hand. They had 48 hours to do that before the phone would have required a passcode log-in. They might have known this had they bothered to call Apple for help.
Turns out it was Apple that contacted the FBI immediately after it learned the agency was unable to access the contents of the phone. But the FBI never responded to Apple’s call.
So, law enforcement is partially responsible for the situation it’s landed in—and it’s very likely that Apple will give the Rangers the same answer it gave the FBI in 2016 (in effect, hell no!).
The FBI and the Department of Justice, after the San Bernardino shooting in 2015, decided to go to court to compel Apple to help it break into the iPhone of Syed Farook. In the past, federal law enforcement worked behind the scenes and on a case-by-case basis with Apple and other tech companies to get help gaining access to evidence on devices.
The FBI and DOJ believed they’d found a highly sympathetic case with which to establish precedent for requiring tech companies to provide a “back door” to the encryption used to secure devices, which law enforcement could use to access data when they needed to. But to the feds’ surprise, much of the public sided with Apple.
Had law enforcement stuck to its usual methods and talked to Apple behind closed doors, the company might have already flown some of its engineers out to FBI headquarters to break into Kelley’s phone. In the wake of the San Bernardino stand-off, that’s probably impossible now.
That may be why, in the Texas case, the FBI and the Rangers didn’t even bother calling Apple, but rather went straight to court. Apple said during the San Bernardino dispute that if it were to create a hack to bypass the encryption of one iPhone, it would potentially endanger the security of all iPhones. Expect Apple to respond to the Ranger’s warrant with the same message this time around.