Court Says DOJ's Attempt To Force Facebook To Break Encryption Can Remain Under Seal

from the thanks-for-sticking-up-for-the-millions-of-little-guys dept

Late last summer, the DOJ attempted to get a court to force Facebook to break encryption on its Messenger service so investigators could tap into phone calls being made by criminal suspects. Facebook responded that doing so would fundamentally alter the way Messenger works. The request was a non-starter according to Facebook. According to the DOJ, it was nothing more than asking a few smart people to do a few smart things, so the burden Facebook complaints about "burdensome requests" was overstated.

A couple of months later, the DOJ had again failed to obtain favorable anti-encryption precedent. The underlying documents remain under seal, but sources "close to the case" had indicated the court had sided with Facebook.

The secret litigation over software alterations that would affect millions of Facebook users continues. Messenger's encryption is no longer at stake -- at least not for the time being -- but the government still wants the public to stay out of its private discussions with our federal court system.

Petitions have been filed by a number of rights groups and journalists to have these documents unsealed. According to the latest Reuters report on this legal battle, the federal court in California is siding with the government on this issue.

Groups including the American Civil Liberties Union argued that the public’s right to know the state of the law on encryption outweighed any reason the U.S. Justice Department might have for protecting a criminal probe or law-enforcement method.

The Washington Post newspaper also filed a legal brief to unseal the records.

However, U.S. District Judge Lawrence O’Neill in Fresno ruled that the documents described sensitive law enforcement techniques and releasing a redacted version would be impossible.

The petitioners aren't just fighting the DOJ and its likely overstated fears about exposing internet wiretap orders and their innards. They're also fighting against the social media giant which feels unsealing the documents would allow its competitors to walk away with handfuls of trade secrets. From the order [PDF]:

Facebook’s assertion that its internal processes that were the subject of the Government’s motion constituted trademark and protected material and information, and that public disclosure would provide such protected information to competitors, thereby jeopardizing substantial business quality, productivity, and profit, was legitimate, true, and reasonable…

Facebook is receptive of releasing redacted documents, though. The government doesn't want anything released. And the court -- citing the apparently ongoing investigation -- agrees that even a redacted release would harm the government's interest in preserving its investigative trade secrets.

That may be the temporary answer but it can't be the final, permanent answer. The investigation can't last forever and attempts to break encryption on communication tools millions of Americans use shouldn't be kept secret by the nation's courts, who have some obligation to keep the public informed of government means and methods that affect their everyday life.

Filed Under: backdoors, doj, encryption, facebook messenger, secrecy
Companies: facebook

EFF, ACLU Petition Court To Unseal Documents From DOJ's Latest Anti-Encryption Efforts

from the talk-to-us,-DOJ dept

Back in August, the DOJ headed to court, hoping to obtain some of that sweet sweet anti-encryption precedent. Waving around papers declaring an MS-13 gang conspiracy, the DOJ demanded Facebook break encryption on private Messenger messages and phone calls so the government could eavesdrop. Facebook responded by saying it couldn't do that without altering -- i.e., breaking -- Messenger's underlying structure.

Not that breaking a communications platform would give the FBI any sleepless nights. Worthless encryption is better than good encryption when it comes to demanding the content of communications or, as in this case, operating as the unseen man-in-middle when suspected gang members chatted with each other.

Unfortunately (for the FBI), this ended in a demurral by the federal court. The details of the court's decision are, just as unfortunately, unknown. Reuters was able to obtain comments from "insiders familiar with the case," but the public at large is still in the dark as to how all of this turned out.

The EFF and ACLU are hoping to change that.

In our petition filed today in the United States District Court for the Eastern District of California, EFF, the ACLU, and Riana Pfefferkorn of Stanford Law School’s Center for Internet and Society seek to shed light on this important issue. We’re asking the court to release all court orders and related materials in the sealed Messenger case.

Given the importance of encryption in widely used consumer products, it is a matter of public interest any time law enforcement tries to compel a company to circumvent its own security features.

The petition [PDF] points out the First Amendment guarantees access to courtroom proceedings and the courts are supposed to adhere to this by operating with a presumption of openness. Only in rare, rare cases should they side with the government and allow the public to be cut out of the loop by sealing documents.

This is doubly true in cases of significant public interest. Any time the DOJ is in court agitating for broken encryption, it's safe the say the public will be affected by the case's outcome. At this point, we don't know anything more than the DOJ didn't get what it wanted. What we don't know is why, or what impact the ruling here will have on similar cases in the future. And we should know these details because, if nothing else, the FBI has proven it cannot be trusted to deal with device encryption honestly.

Filed Under: breaking encryption, compelled access, doj, encryption, facebook messenger, fbi, going dark, ms-13, public records, sealed court documents, transparency
Companies: facebook

DOJ Loses Another Attempt To Obtain Encryption-Breaking Precedent In Federal Court

from the senior-DOJ-counsel-sitting-in-darkened-office-with-'Behind-Blue-Eyes'-on dept

The DOJ is now 0-for-2 in encryption-breaking cases. The DOJ tried to get a judge to turn an All Writs Order into a blank check for broken encryption in the San Bernardino shooting case. Apple pushed back. Hard. So hard the FBI finally turned to an outside vendor to crack the shooter's iPhone -- a vendor the FBI likely knew all along could provide this assistance. But the DOJ wanted the precedent more than it wanted the evidence it thought it would find on the phone. It bet it all on the Writ and lost.

Other opportunities have arisen, though. A case involving wiretapping MS-13 gang members resulted in the government seeking more compelled decryption, this time from Facebook. The FBI could intercept text messages sent through Messenger but was unable to eavesdrop on calls made through the application. Facebook claimed it didn't matter what the government wanted. It could not wiretap these calls for the government without significantly redesigning the program. The government thought making Messenger less secure for everyone was an acceptable solution, as long as it gave investigators access to calls involving suspected gang members.

The case has proceeded under seal, for the most part, so it's been difficult to determine exactly what solution the government was demanding, but it appears removal of encryption was the preferred solution, which would provide it with future wiretap access if needed. If this request was granted, the government could take its paperwork to other encrypted messaging programs to force them to weaken or destroy protections they offered to users.

The ruling in this case is still under seal, but Joseph Menn and Dan Levine of Reuters were able to obtain comments from insiders familiar with the case to determine the outcome.

U.S. investigators failed in a recent courtroom effort to force Facebook to wiretap voice calls over its Messenger app in a closely watched test case, according to two people briefed on the sealed ruling.

[...]

Arguments were heard in a sealed proceeding in a U.S. District Court in Fresno, California weeks before 16 suspected gang members were indicted there, but the judge ruled in Facebook’s favor, the sources said.

The DOJ was hoping to have Facebook held in contempt for failing to comply with the decryption order. It appears this isn't going to happen. The government may need to seek outside assistance to intercept Messenger calls. But that's a much more difficult prospect than breaking into an iPhone physically in the possession of the government and it would possibly involve vulnerabilities that might be patched out of existence by developers.

The government is presumably hunting down its next test case for encryption-breaking precedent. With the Supreme Court finding for the Fourth Amendment in two recent cellphone-related cases, the chance of obtaining favorable precedent continues to dwindle.

Filed Under: backdoors, doj, encryption, facebook messenger, fbi
Companies: facebook

DOJ Asking Court To Force Facebook To Break Encryption On Messenger Voice Calls

from the with-an-eye-on-undermining-all-encrypted-messaging-services dept

The DOJ's war on encryption continues, this time in a secret court battle involving Facebook. The case is under seal so no documents are available, but Reuters has obtained details suggesting the government is trying to compel the production of encryption-breaking software.

The U.S. government is trying to force Facebook Inc to break the encryption in its popular Messenger app so law enforcement may listen to a suspect’s voice conversations in a criminal probe, three people briefed on the case said, resurrecting the issue of whether companies can be compelled to alter their products to enable surveillance.

The request seeks Facebook's assistance in tapping calls placed through its Messenger service. Facebook has refused, stating it simply cannot do this without stripping the protection it offers to all of its Messenger users. The government disagrees and has asked the court for contempt charges.

Underneath it all, this is a wiretap order -- one obtained in an MS-13 investigation. This might mean the government hasn't used an All Writs Acts request, but is rather seeking to have the court declare Messenger calls to be similar to VoIP calls. If so, it can try to compel the production of software under older laws and rulings governing assistance of law enforcement by telcos.

A federal appeals court in Washington D.C. ruled in 2006 that the law forcing telephone companies to enable police eavesdropping also applies to some large providers of Voice over Internet Protocol, including cable and other broadband carriers servicing homes. VoIP enables voice calls online rather than by traditional circuit transmission.

However, in cases of chat, gaming, or other internet services that are not tightly integrated with existing phone infrastructure, such as Google Hangouts, Signal and Facebook Messenger, federal regulators have not attempted to extend the eavesdropping law to cover them, said Al Gidari, a director of privacy at Stanford University Law School’s Center for Internet and Society.

Calls via Messenger are still in a gray area. Facebook claims calls are end-to-end encrypted so it cannot -- without completely altering the underlying software -- assist with an interception. Regular messages via Facebook's services can still be decrypted by the company but voice calls appear to be out of its reach.

Obviously, the government would very much like a favorable ruling from a federal judge. An order to alter this service to allow interception or collection could then be used against a number of other services offering end-to-end encryption.

It's unknown what legal options Facebook has pursued, but it does have a First Amendment argument to deploy, if nothing else. If code is speech -- an idea that does have legal precedent -- the burden falls on the government to explain why it so badly needs to violate a Constitutional right with its interception request.

This is a case worth watching. However, unlike the DOJ's very public battle with Apple in the San Bernardino case, there's nothing to see. I'm sure Facebook has filed motions to have court documents unsealed -- if only to draw more attention to this case -- but the Reuters article says there are currently no visible documents on the docket. (The docket may be sealed as well.) There is clearly public interest in this case, so the presumption of openness should apply. So far, that hasn't worked out too well for the public. And if the DOJ gets what it wants, that's not going to work out too well for the public either.

Filed Under: doj, encryption, facebook messenger, voip, wiretapping
Companies: facebook