Although the phone has been taken as evidence, there is still no way to find out what information it holds due to the encryption key that only the owner can unlock.
The FBI still cannot unlock the encrypted cellphone of one of the San Bernardino shooters more than two months after the California terrorist attack.
FBI Director James Comey told the Senate Intelligence Committee on Tuesday that his agency’s inability to access the information in the retrieved phone is an example of the effect on law enforcement of the growing use of encryption technology.
Comey said the problem of “going dark” is overwhelmingly affecting law enforcement at all levels.
“It affects cops and prosecutors and sheriffs and detectives trying to make murder cases, car accident cases, kidnapping cases, drug cases,” Comey said.
He said the biggest concern was phones that automatically locked and secured all information inside.
“It is a big problem for law enforcement armed with a search warrant, when you find a device that can’t be opened even when a judge said there’s probable cause to open it,” Comey said.
Sen. Dianne Feinstein of California, the ranking Democrat on the committee, and the committee’s chairman, Sen. Richard Burr, R-N.C., have said they are considering legislation that would compel manufacturers to provide law enforcement access to encrypted data when there’s a court order. Industry associations have opposed such proposals.
While encryption issues are more common in local criminal cases, counterterrorism investigations are also affected, Comey said. He cited the December attack in San Bernardino, in which Syed Rizwan Farook and Tashfeen Malik killed 14 people at a holiday party.
“In San Bernardino, a very important investigation to us, we still have one of those killers’ phones that we have not been able to open. It’s been over two months now; we’re still working on it,” Comey said.
Comey previously told Congress that investigators could not read more than 100 text messages that one of the shooters who attacked a cartoon contest in Garland, Texas, last year exchanged with an “overseas terrorist.” The contest was to draw caricatures of the Prophet Muhammad.
Privacy advocates who oppose limits on encryption argue that giving such backdoor access to data opens devices to thieves and hackers. A recent report from Harvard University’s Berkman Center for Internet and Society concluded that law enforcement fears of encryption are exaggerated, in part because increasingly sophisticated technology is opening up other ways for police to conduct surveillance.
National Intelligence Director James Clapper told the senators that he thinks the government and tech companies should be able to work out a solution without resorting to legislation.
“I’m not sure we’ve exhausted all the possibilities here technologically,” Clapper said.
Adm. Michael Rogers, director of the National Security Agency, said “encryption is foundational to the future.” The challenge, he said, is finding the balance between privacy and security.