The FBI says its investigation into the San Bernardino shooting has been stymied by encryption.

In addition to not finding a computer hard drive allegedly used by the suspects, the FBI cannot break the encryption code protecting two cell phones, according to David Bowdich, Assistant Director in Charge of the FBI Los Angeles Field Office.

“As to those devices, obviously we’ve said from day one, the digital footprint is incredibly important for us to hopefully learn any contacts, any context, and ultimately any intent on their part,” Bowdich told Fox News. “I think that’s very, very important.”

FBI Frontal Assault on Privacy

Following the San Bernardino shooting the FBI launched a frontal assault on the idea that people have a right to protect their personal data with encryption.

On December 9 FBI Director James Comey went before the Senate Judiciary Committee and argued tech companies offering end-to-end encryption are hindering law enforcement. He told lawmakers the companies must change their business model in order to fight terrorism and criminals.

Prior to the attack in San Bernardino Comey took Apple and Google to task for introducing encryption.

“There will come a day when it will matter a great deal to the lives of people ... that we will be able to gain access” to encrypted devices, Comey told reporters during a briefing in September. “I want to have that conversation [with companies responsible] before that day comes.”

Comey said he did not understand why the companies would “market something expressly to allow people to place themselves beyond the law.”

He added that that in a “post-Snowden world this is an indication (some corporations) go too far.”

Apple argues it introduced a new encryption standard to prevent thieves and hackers from stealing data from its smart phones. Its new iOS 8 mobile-operating system will by default encrypt data if users set a passcode.

In response to Apple’s announcement, a former FBI counsel said the tech company was in effect encouraging criminal behavior.

Apple is “announcing to criminals, ‘use this,’ ” said Andrew Weissmann. “You could have people who are defrauded, threatened, or even at the extreme, terrorists using it.”

In July Deputy Attorney General Sally Quillian Yates said legislation “may ultimately be necessary” to force the private sector to either rollback encryption or provide a key for intelligence and law enforcement.

Following Comey’s appearance before the Senate House Homeland Security Chair Rep. Michael McCaul added to the debate by stating the Islamic State now has its very own encryption app and uses it to communicate terror plans.

“ISIS now has developed their own encrypted app,” McCaul told CNN’s Wolf Blitzer. “This is a serious issue for the FBI and Homeland Security, for law enforcement. You can’t see what see what the terrorists are communicating, you can’t stop that threat.”

Modern Day Writs of Assistance

The FBI and the Justice Department are arguing against protections afforded by the Fourth Amendment. They are essentially calling for a return of writs of assistance used prior to the American Revolution.

Writs of assistance were court orders authorizing customs officers to conduct general and non-specific searches of premises for contraband. The exact nature and location of the contraband did not need to be specified.

The writs were introduced by the British under rules for commerce in Massachusetts in 1751 to enforce its Acts of Trade. The colonists argued writs represented a violation of natural rights. Opposition to them played an important role in the rebellion against British rule and ultimately the Revolutionary War.


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