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Oct 17, 2014 6:50 PM

Do cases FBI cites support encryption worries?

The Associated Press

WASHINGTON (AP) The text messages captured a cover-up of unimaginable abuse: Parents had struck their toddler so often that they ultimately killed her. The child shook badly because we beat her, the father wrote, and the mother complained that their 2-year-old was the devil.

FBI Director James Comey says encrypting data stored on smartphones and computers could hurt criminal investigations, and evidence reviewed by The Associated Press shows that the child abuse case in Los Angeles from summer 2011 is a powerful, compelling argument. Prosecutors said the texts recovered by investigators prompted the parents to practically beg for a plea deal.

But at least three other examples the FBI director has cited are not so cut and dry. They are cases in which the authorities were tipped off or even solved the crime through means other than examining data they took from victims or suspects. While digital evidence may have aided those investigations, authorities nonetheless relied upon evidence beyond what was stored on a cell phone to nab a criminal or secure a conviction.

The struggle to justify the FBI's complaints about new phone encryption underscores the uphill fight facing the Obama administration in the wake of disclosures by former National Security Agency analyst Edward Snowden. Those revelations showed the government was collecting phone records and digital communications of millions not suspected of a crime.

It's not clear how the FBI hopes to untangle the encryption technology already rolled out to consumers, such as seeking new legislation on Capitol Hill restricting its use. Congress is expected to return to Washington in November to consider the USA Freedom Act, legislation aimed at reining in the NSA's surveillance capabilities and providing more transparency to secret proceedings in the Foreign Intelligence Surveillance Court.

The FBI chief on Thursday cited cases involving a sex-offending cab driver in Louisiana, an abusive mother in Los Angeles, a Kansas drug ring and a reckless driver in California, saying each showed the value of law enforcement's ability to read files on cell phones.

"Encryption isn't just a technical feature. It's a marketing pitch. But it will have very serious consequences for law enforcement and national security agencies at every level," Comey said, echoing earlier comments after Apple Inc. and Google Inc. said they would encrypt their phones by default.

The government's concerns may be directed in part toward Apple's iMessage platform, which offers end-to-end encrypted text messages, unlike traditional SMS messages. That encryption likely means the only way for police to read those messages is by obtaining a user's iPhone. Apple has sold hundreds of millions of devices that use iMessage.

Most examples the FBI director cited showed that evidence extracted from phones was, at best, supplementary.

Comey pointed to a hit-and-run driver in Sacramento, California, who was convicted of second-degree murder in a 2012 collision that killed a man and four dogs, saying, "GPS data placed the driver at the scene of the accident and revealed that he had fled California shortly thereafter."

Defense lawyer Michael Long, however, recalled that a side mirror found at the scene of the crash taken as evidence to a car dealership was an initial clue that led investigators to identify the type of vehicle involved. More breaks came with tips from eyewitness accounts and anonymous tips that placed Paul William Walden at the collision scene.

Walden was arrested coming out of his driveway and admitted being present at the collision, a damning admission presented to the jury. With access to his phone, Long said, investigators subpoenaed records from the cell service provider and used cell tower location data to place him near the scene records that police can routinely obtain even if they don't physically possess a person's phone.

"They wouldn't have had his cell phone until they had Paul," Long said. "The cell phone technology was very helpful for them once they had Paul and they had his phone and his records to be able to piece together his trail across the country.

"It helped them convict Paul," he added, "but it didn't help them capture Paul." Walden is serving a sentence of 25 years to life.

Another case involved a heroin trafficking organization in Kansas City, Kansas, whose drug-dealing resulted in multiple drug overdoses.

Court filings show that while the suspects arranged orders using phones they discarded every few weeks, investigators constructed their prosecutions around months of undercover drug purchases involving confidential informants a decades-old, more conventional law enforcement strategy.

Branden Bell, a lawyer for Verdale Handy, of Kansas City, who was convicted of attempted murder of a witness and multiple drug-dealing crimes, said he didn't recall electronic evidence factoring in the prosecution of his client.

"The government's evidence was a number of people who allegedly purchased narcotics from Mr. Handy and an eyewitness account of someone Mr. Handy attempted to murder," Bell said.

"I believe they followed a traditional investigative model, identifying lower-level distributors (and getting) their cooperation to identify and supply evidence against the suppliers above that," he said.

A fourth case involved a 12-year-old Louisiana boy killed by a sex-offender taxi driver who posed online as a young girl and sent the boy text messages.

Comey said the phones of the suspect and the victim were "instrumental in showing that the suspect enticed this child into his taxi," but according to authorities, they first zeroed in on the suspect after finding his cab parked suspiciously on a highway shoulder and determining through a license check that he was a registered sex offender. Physical evidence also connected the two after the driver was arrested, though authorities have said the electronic evidence did wind up being important for conviction.

In response to concerns Comey expressed earlier about phone encryption, The Associated Press asked the Justice Department more than two weeks ago about specific cases in which encryption might have hindered law enforcement. The FBI ultimately said Comey's speech this week was intended to provide those examples.

Police say there is sometimes great evidentiary value in text messages, particularly involving gang-related homicides where eyewitnesses are nearly nonexistent and assailants brag about their misdeeds. In the Los Angeles case, for instance, texts showed a pattern of abuse and cover-up among the girl's parents even as their daughter was on life support.

"They knew those text messages couldn't have been put in front of a jury," said Los Angeles sheriff's Sgt. Richard Biddle, who investigated the case. "It showed how callous they were. They didn't care about the kid. They only cared about themselves."


Follow Jack Gillum on Twitter at https://twitter.com/jackgillum and Eric Tucker at https://twitter.com/etuckerap.


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