June 13, 2016 – Politico

by Martin Matishack

This weekend’s massacre in Orlando could reignite the debate over whether technology companies must help law enforcement unlock terrorist suspects’ encrypted phones — just months after the issue fueled an angry court battle between Apple and the FBI.

Federal investigators have not yet said what kind of phone they recovered from Orlando gunman Omar Mateen — and whether, like the killers in last year’s deadly mass shooting in San Bernardino, Calif., he used encryption to prevent outsiders from reading his communications. But tracing Mateen’s digital trail will be crucial to the investigation of Sunday’s bloodshed, especially in determining whether he had received help or encouragement from terrorist groups before he killed at least 49 people and wounded 53 more in the Central Florida nightclub.

“We are going through the killer’s life, as I said, especially his electronics, to understand as much as we can about his path and whether there was anyone else involved, either in directing him or in assisting him,” FBI Director James Comey said Monday. He declined to say whether investigators have encountered any evidence of Mateen using encryption.

Photos posted on social media showed Mateen holding what appeared to be a Samsung phone, which may have lacked the iron-clad security of the Apple iPhone that frustrated the FBI’s investigation into the San Bernardino shootings. But it’s still possible he might have used one of a growing array of encrypted apps — such as the Facebook-owned WhatsApp — designed to keep people’s communications safe from prying by governments and criminals.

Comey and other law enforcement leaders have expressed growing alarm about the increasing availability of encryption, warning that it’s allowing terrorists and other wrongdoers to “go dark” and plot their deeds in secret. And the Orlando shootings have the potential to make the FBI’s argument even stronger, especially given the urgency of getting to the bottom of the deadliest terror attack on U.S. soil since Sept. 11, 2001.

The second-deadliest attack was the San Bernardino shooting, in which Syed Farook and his wife, Tashfeen Malik, slaughtered 14 people at a holiday party in December.

“Comey and his people will take every opportunity to push their agenda,” said forensic scientist Jonathan Zdziarski, who compared the law enforcement push to the efforts of gun control advocates to seize on such an attack. “The root of the problem never gets addressed because everyone’s busy fighting.”

The San Bernardino fight escalated sharply in February after a federal magistrate ordered Apple to make it easier for authorities unlock Farook’s work-issued iPhone — only to have the case end inconclusively after the FBI got into the phone with help from an unidentified third party. Apple CEO Tim Cook lambasted the government’s request as “dangerous,” while the Justice Department accused the company of impeding an investigation into “the terrorist mass murder of 14 Americans.”

Regardless of whether a similar fight erupts in the Orlando investigation, the broader tug of war is only going to escalate, said Bob Cattanach, a former Justice Department lawyer and a partner at the law firm Dorsey & Whitney.