Deputy Attorney General Rod Rosenstein lamented the inability for federal investigators to get into the cellphones of crime suspects and the failure of technology companies to assist in the effort.
Speaking at a business breakfast in Maryland early Thursday, Rosenstein used the example of the phone of Devin Patrick Kelley, the suspect who opened fire on a congregation in Sutherland Springs, Texas, on Sunday, killing 26 people. The FBI currently has Kelley’s iPhone — he was killed following the shooting — but the phone is locked and investigators are unable to get around the phone’s encryption.
“Nobody has a legitimate privacy interest in that phone. The suspect is deceased. Even if he were alive, it would be legal for police and prosecutors to find out what is in the phone,” Rosenstein, who has been outspoken about encryption in prior speeches, said.
The issue first came to light in 2015 when FBI and Apple engaged over a public battle over the San Bernardino, Calif., shooter’s iPhone. During that battle, President Trump urged a boycott of Apple, who refused to create a "back door" for the FBI to break the phone’s encryption. The FBI eventually hired a third-party company for $1.3 million to hack the phone, and the issue of encryption has since been relatively dormant.
But Kelley's phone thwarting the FBI now could reignite the issue.
“When you shoot dozens of innocent American citizens, we want law enforcement to investigate your communications and stored data,” Rosenstein said Thursday, adding, “‘There are things that we need to know.”
“As a matter of fact, no reasonable person questions our right to access the phone. But 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,” Rosenstein said, lamenting only maybe “eventually” will federal investigators be able to access Kelley's phone.
In addition to costing “a great deal of time and money,” Rosenstein said a delay “surely costs lives.”
“That is a very high price to pay. We need to find a solution,” the Department of Justice’s No. 2 concluded.
On Tuesday, Christopher Combs, the special agent in charge of the FBI’s San Antonio bureau, said at a news briefing on Tuesday investigators are working “very hard” to get into the phone, but had no timetable for when that might be.
“It could be tomorrow, it could be a week, it could be a month,” Combs said.
According to Reuters, the FBI did not ask Apple for its help with the iPhone during a key 48-hour window in which Kelley’s fingerprint could have been used to unlock an iPhone with Touch ID.
Buzzfeed then reported Apple contacted the FBI immediately after the Tuesday news briefing to offer assistance, saying it “would expedite our response to any legal process they send us.”