FBI: San Bernardino Terrorists Used Private Messages.
CAMEROTA: Investigators discovering that some of the terrorists behind last month's attack in Paris used encrypted cell phone apps, this as FBI Director James Comey talked about the challenges in investigating them and the San Bernardino terrorists. Let's bring in Samuel Rascoff. He's the faculty director at the Center of Law and Security at NYU Law, and former director of intelligence analysis for NYPD. Samuel, great to see you again. Let's talk about these two things. There's encryption that's stymieing investigators and then there's the use of direct messaging. I understand the latter better. So, let's start there with direct messaging. Part of the reason that they missed the clues of the female San Bernardino terrorist is because she was direct messaging people on social media. Why can't investigators see that?</s>SAMUEL RASCOFF, FACULTY DIR., CENTER OF LAW AND SECURITY, NYU LAW SCHOOL: Well, investigators could see that if they had a valid predicate for taking a look. In the absence of that kind of predication a reason to seek that information, they don't know what they don't know.</s>CAMEROTA: Right. So, this is privacy versus national security argument. Some would say that given what happened in San Bernardino, it's time to begin looking. I mean, even without some sort of predicate. It's time to begin looking at people's direct messaging to figure out if they are saying things like jihadists, you know, impulses and wanting to plan an attack.</s>RASCOFF: Well, that's probably one bridge too far, especially with respect to U.S. citizens, to the extent, though, that we're talking about visa applicants, I would say, yes, there may be more ability there to go consider information, even information that's not public facing considering that we're talking about individuals who aren't Americans.</s>CAMEROTA: OK. So for visa applicants we do in other words -- our security officials do have the technology to take a look they're just choosing not to?</s>RASCOFF: Thus far they made a policy choice in some cases not to consider certain posting and certain communication exactly.</s>CAMEROTA: Let's talk about what Evan Perez just reported. What was long suspected in Paris attackers that they were using encryption of some kind. What he's just reported, is that, yes, in fact, it has been confirmed that they used encrypted apps. Explain how that works.</s>RASCOFF: Well, that works the same way iPhone 6 works nowadays which is to say default setting for a lot of technology that we use in day-to-day lives today as opposed to two or three years ago is encrypted. That means that even when a judge issues a warrant to law enforcement to go ahead and consider information, technology companies are simply unable to deliver on that warrant.</s>CAMEROTA: Why?</s>RASCOFF: Why? Because in a post-Snowden world, a lot of these companies, Apple being a prime example, have sought to distance themselves from the law enforcement and intelligence apparatus to the state. And they are literally marketing iPhone 6 as anti- surveillance.</s>CAMEROTA: That's a problem in the new world of national security concerns. Can they change their tenor on that?</s>RASCOFF: They can change their tenor but they really won't do anything until Congress demands they change their tune and whereas guys like Jim Comey really want Congress to step in and demand a back door, the tech firms aren't going to be able to do it otherwise.</s>CAMEROTA: Let me play for you. James Comey plea that he needs help and here's why, there's what he said yesterday.</s>JAMES COMEY, FBI DIRECTOR: The threat came from ISIL through social media which revolutionized the way all of us connect to each other and they made it revolutionized terrorism, because they sent their twin-prong message of come or kill out to the chaotic spider web, especially of Twitter.</s>CAMEROTA: "The chaotic spider web especially of Twitter", what does that mean?</s>RASCOFF: What that means is that ISIL, unlike al Qaeda in its original incarnation, which was on organization with bosses and subordinates, ISIL nowadays is more akin, especially globally, to a brand, where a message gets put out there and individuals who subscribe to that sort of message are volunteering for the cause.</s>CAMEROTA: That's why James Comey said they are crowdsourcing terrorism. He used that term. Meaning that they just -- they don't even have to have trained somebody. They can just through social media now put out here's what we think you should do and then people take that suggestion and run with it as we saw in San Bernardino.</s>RASCOFF: Exactly, and the law enforcement challenge accordingly is disproportionately larger than it ever was, because it's not about monitoring a discreet a number of individuals in Waziristan. It's about monitoring who across the globe might subscribe to a message that's been put out globally.</s>CAMEROTA: I mean, you're on the front lines of this because you deal in this world every day. What's the solution?</s>RASCOFF: The solution is some kind of big compromise. We've already begun to see over the last summer that Congress has put into place legislation to roll back some of the vacuuming up of American metadata, the very broad sweeping surveillance. That's part of an overall package. But I think the second piece of that according to Comey and this is good public policy, what we need to see on the second half of that equation is some kind of government authority to get into encrypted technology. That has to be part of the bargain.</s>CAMEROTA: I mean, it sounds like otherwise, our law enforcement has their hands tied is what he's saying.</s>RASCOFF: Exactly right. Otherwise, even possessed of a good warrant, law enforcement can't get the job done.</s>CAMEROTA: Samuel Rascoff, thanks so much for your expertise and being on</s>NEW DAY. RASCOFF: Thank you.</s>CAMEROTA: We're following a lot of news this morning, so let's get right to it.</s>CRUZ: Senator Rubio chose to stand with Barack Obama.</s>RUBIO: Everyone on that stage talks tough.</s>DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Last night I had Jeb come at me. You know, low energy.</s>JIMMY KIMMEL, COMEDIAN: You think Jeb Bush is scared of you or just scared in general?</s>TRUMP: He's having a hard time running.</s>UNIDENTIFIED FEMALE: Hung jury in Baltimore.</s>CUOMO: Protesters demanding to know why a jury failed to reach a verdict against the first of six officers.</s>UNIDENTIFIED MALE: Ultimately, people from different perspectives have to come to the same conclusion.</s>UNIDENTIFIED MALE: I'm terrified. Will we have five more mistrials?</s>PEREIRA: President Obama getting a pre-Christmas briefing from his counterterrorism team today.</s>COMEY: The most dangerous people to us that we're tracking disappear. We call this going dark challenge.</s>ANNOUNCER: This is NEW DAY with Chris Cuomo, Alisyn Camerota, and Michaela Pereira.</s>CAMEROTA: Good morning, everyone. Welcome back to your NEW DAY. The candidates getting back on the stump following Tuesday's debate. Ted Cruz and Marco Rubio trying to build on momentum they picked up in Vegas, but they've got plenty of ground to catch the man still in front.</s>CUOMO: You speak of Donald Trump.</s>CAMEROTA: I do.</s>CUOMO: And he was on Jimmy Kimmel and he was firing back at Jeb Bush calling him weak, low energy, despite a performance many called strong. We also heard something else from Trump that it may be time that even he tones it down. Let's begin our coverage with CNN political reporter Sara Murray live in Washington. Yes, Sara, Donald Trump dialing it back.</s>SARA MURRAY, CNN POLITICAL REPORTER: Yes, can you even believe it? You know, maybe he's getting more comfortable in his front runner status. But last night, we saw a Donald Trump who's calling to unite the Republican Party. If you think that stopped him from taking swipes at his Republican rivals, you better think again.</s>MURRAY (voice-over): A change in tone for Donald Trump. On Jimmy Kimmel overnight, a bit of self-reflection.</s>TRUMP: I would like to see the Republican Party come together and I've been a little bit divisive in the sense that I've been hitting people pretty hard.</s>KIMMEL: A little bit, yeah.</s>MURRAY: The magnanimity stopped when it came to debate rival Jeb Bush.</s>KIMMEL: Do you think Jeb Bush is scared of you or just scared in general?</s>TRUMP: I think he's scared.</s>MURRAY: The front runner continuing to call Bush low energy and too nice to be tough.</s>KIMMEL: Do you think he wants to run for president?</s>TRUMP: No.</s>KIMMEL: No?</s>TRUMP: He was a happy warrior, but he's never been a happy warrior.