Sen. Feinstein Looking To Revive Anti-Encryption Bill In The Wake Of Texas Church Shooting

Shortly after the horrific shooting of 26 people in a Texas church, the FBI began dropping hints about its inability to access the contents of the shooter's phone. Things didn't go the FBI's way the last time it tried to access a phone's contents following a mass shooting. It was unable to force Apple to break its own encryption and failed to obtain a judicial precedent it could wield against other manufacturers. In the end, the FBI ended up out a large sum of cash in exchange for access to phone contents that ultimately proved worthless.

These rumblings follow the DOJ's push for "responsible encryption" -- a mythical beast composed of "strong" encryption that can be broken at the drop of warrant. This is the FBI hinting it's interested in taking a second swing at obtaining a pro-encryption breaking courtroom decision. What the FBI won't do is offer any details on the shooter's phone itself.

"We are unable to get into that phone," FBI Special Agent Christopher Combs said in a press conference yesterday (see video).

Combs declined to say what kind of phone was used by gunman Devin Kelley, who killed himself after the mass shooting. "I'm not going to describe what phone it is because I don't want to tell every bad guy out there what phone to buy, to harass our efforts on trying to find justice here," Combs said.

Most agents aren't adept at handing out off-the-cuff statements, as Agent Combs's "harass our efforts on trying to find justice" word salad can attest. Withholding this information made little difference, however. The phone the FBI is trying to break into is an iPhone -- something Apple may have inadvertently outed while preemptively defending itself against FBI/DOJ criticism.

Apple today tried to get ahead of another encryption showdown with the Federal Bureau of Investigation related to the Texas gunman’s attack this past Sunday, saying it reached out to the bureau to offer assistance in getting into the gunman’s iPhone and expedite its response to any legal process. The attack, which left 26 dead and many more injured, was committed by now-deceased Devin P. Kelley, who is confirmed to have been carrying an iPhone that may have crucial information about his activities in the lead up to the shooting.

Maybe the FBI should have taken Apple up on its offer. As Reuters reports, the FBI did not ask Apple for help during the 48 hours following its receipt of the phone -- a time period during which Apple's assistance may have been invaluable. (This echoes the FBI's apparent mishandling of the San Bernardino shooter's phone, which resulted in a locked phone and a courtroom showdown.) Apple likely would have known whether or not the phone was secured by the shooter's fingerprint, which certainly could have been applied postmortem.

Instead, the FBI chose to complain about its lack of access. This may be part of the DOJ's long game. Immediate assistance only helps in individual cases and only if done as soon as possible after taking possession of a device. But a favorable court decision? That lasts forever and can be applied at the FBI's leisure.

Unfortunately, it's not just the FBI and DOJ looking for permanently broken encryption. Sen. Dianne Feinstein is looking to revive her anti-encryption bill, last seen collecting dust following Congressional and presidential disinterest during the final year of the Obama administration.

As the FBI struggles to unlock the iPhone used by the gunman in the recent Texas massacre, Sen. Dianne Feinstein believes it’s time to bring back long-dormant encryption-piercing legislation. It’s been about 18 months since she and Senate Intelligence Committee Chairman Richard Burr floated legislation that would have required tech firms to hand over customers’ secure messages when served with a warrant. The measure, released after a bitter feud between the FBI and Apple over a locked iPhone, was never formally introduced but the latest case is exactly why it should be revived, she told Martin. “I think we ought to move that bill,” she said.

If everything alleged by the Reuters report is true, the FBI's "struggles" are of its own making. It could have sought immediate assistance from Apple but chose not to. It also, apparently, turned down Apple's offer to help. If so, the FBI doesn't actually want cooperation from tech companies. It wants to be able to tell companies what features they can and can't have. It wants to dictate all the terms of these engagements, which is very much in line with the DOJ's views on tech company "partnerships."

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