FBI has Devin Kelley’s iPhone. But it can’t unlock it, obscuring clues to Texas shooter

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Ramon Padilla, UT

SAN FRANCISCO – A simple iPhone passcode may be stopping the FBI from more fully understanding the shooter behind Sunday’s deadly church killing, possibly exacerbated by a gap between when murder suspect Devin Kelley last used the phone and when authorities started trying to unlock it.

The FBI has Kelley’s iPhone, retrieved after he shot a congregation in Sutherland Springs, Tex., killing 25 people before he was killed. A search warrant allowing investigators access has been executed. The phone was flown to FBI headquarters in Quantico, Va., for analysis but so far a forensics team has been unable to unlock the phone. 

Their efforts — if prolonged — could resurface a fight between law enforcement, tech companies and privacy advocates over whether the government should get a back-door key to unlocking widely used consumer devices. The FBI has argued it needs to be able to override the phones’ encryption to uncover criminals’ tracks. Tech companies, including iPhone-maker Apple, have countered doing so would make all individuals more vulnerable to hackers. 

Authorities may have had more than one way to get beyond the personal passcode. Versions starting with iPhone 5S and later, but not the new X, use Touch ID. This fingerprint sensor would have allowed the investigators to access the phone using his fingerprints, but only for a short period of time after his last use. 

“We are working very hard to get into the phone,” Christopher Combs, the special agent in charge of the FBI’s San Antonio bureau, said during a news briefing on Tuesday. “It could be tomorrow, it could be a week, it could be a month.”

A law enforcement official, who is not authorized to comment publicly, said Wednesday that authorities were still trying to access the contents of the iPhone.

Apple said Wednesday afternoon that no one at the FBI or any other law enforcement agency had reached out to Apple for technical assistance with the phone. 

The timing of any such requests is critical.Touch ID allows the owner to set a fingerprint to open the device. However, Touch ID stops working if the phone hasn’t been unlocked for more than 48 hours — at that point the user must type in the passcode, according to Apple’s website. Too many unsuccessful attempts to unlock a passcode can lock down a phone permanently. 

If the phone had been set up to accept a fingerprint, the FBI could have used Kelley’s finger to open the phone during that 48 hour window, if he had recently unlocked it. Apple’s Touch ID feature can be engaged with a dead person’s finger.

Texas Public Safety authorities say the Sutherland Springs church shooting appears to have stemmed from a “domestic situation.” It’s not the first domestic incident involving suspected gunman Devin Kelley.
UT

More: Texas church shooting: Who is Devin Kelley?

More: Neighbor ran to aid Texas shooting victims after shooter Devin Kelley fled

More: Devin Kelley’s troubled past included divorce, domestic battery, and time in the brig

Necessary for crime fighting

Law enforcement officials argue that access to suspects’ cell phones is often a crucial component of investigations — but one that’s frequently blocked by security technology.

The FBI has been able to retrieve data from fewer than half the mobile phones it has tried to access over the last 11 months, director Christopher Wray said last month at a speech at the International Association of Chiefs of Police conference in Philadelphia.

Manhattan District Attorney Cyrus Vance has warned that inaccessible devices have thwarted some of the office’s most serious investigations, including murder and sex crimes.

Vance is expected to disclose a new count of locked devices later this month. Last year, the district attorney reported that 423 Apple iPhones and iPads had been seized since October 2014 and have been inaccessible to investigators because of default encryption.

“Approximately 10% of our warrant-proof devices pertain to homicide or attempted murder cases, and 9% to sex crimes,” Vance said last year.

“With over 96% of all smartphones worldwide operated by Apple and Google, and with devices running older operating systems rapidly aging out, the trend is only poised to continue,” the district attorney said. “In other words, the risks associated with warrant-proof encryption remain, and are growing.”

Same issues came up in San Bernardino 

The issue came to a very public head last year when Apple and the Department of Justice spent 43 days locked in a legal battle over an order from a federal magistrate in California that the company must help the FBI try to get into an iPhone used by San Bernardino gunman Syed Rizwan Farook.

At issue was a feature on the iPhone 5C Farook had been issued by his employer that  would lock investigators out if they made 10 unsuccessful tries to determine the correct password.

The FBI demanded that Apple help it disable the locking program, which Apple refused to do on the grounds that creating software to do so would result in something that could potentially unlock any iPhone.

“The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control,” Apple CEO Tim Cook wrote in a public blog post on Feb. 16, 2016.

In the end, the FBI paid an estimated $1.3 million to an unnamed company to build a tool that allowed it to break into the phone, and withdrew its case against Apple.

Left unresolved was whether Apple could have been forced to create such a tool for the FBI.

UT, together with the Associated Press and the news site Vice, sued to discover the name of the outside party that helped crack the phone, but a judge said the agency could keep the identity secret. 

Privacy argument

Privacy advocates and civil liberties groups argue that giving police the ability to break into locked phones represents too great a threat to privacy.

Last year the United Nations’ human rights chief warned that the creation of cyber tools to do so risked unlocking a Pandora’s Box.

“This is not just about one case and one IT company in one country. It will have tremendous ramifications for the future of individuals’ security in a digital world which is increasingly inextricably meshed with the actual world we live in,” Zeid Ra’ad Al Hussein, the U.N. High Commissioner for Human Rights, said in a statement in March 2016.

In a show of unity rarely seen in the tech industry, more than 30 companies — Google, Facebook, Microsoft, AT&T, Yahoo, Amazon, Twitter, Intel, Cisco Systems and others — filed amicus briefs in support of Apple in its opposition to cracking an iPhone linked to the San Bernardino killings. It is a formidable front in an industry often fractured by internecine product wars.

 

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