The US Government is attempting to force Facebook to break the encryption of their Messenger app in a court case currently proceeding in California.
The case is being heard under seal, which means that there are no public filings relating to details, but the news agency Reuters has spoken to three different people, all of whom have been briefed on the case, who confirmed the same details.
Department of Justice want access to voice messages
The case relates to an attempt by the US Department of Justice to access voice messages left on Facebook by the suspect in a criminal case.
One source told Reuters that the case related to the MS-13 gang, a controversial street gang operating in California, which is often been cited by President Donald Trump when discussing weak immigration laws.
To date, Facebook has refused Ministry of Justice demands to access the suspect’s voice messages and, sources say that last week the Judge in the case heard representations from both sides over whether this left Facebook in contempt of court.
The case is continuing but currently finds Facebook in the curious position of being on the right side of a privacy battle. Given the year they have been having, this is unusual ground indeed.
Facebook Messenger does not offer end-to-end encryption by default. Users have to enable it by switching on a special feature known as ‘Secret Conversation’. But once they have done that, the only people who can access the content of their messages are the sender and the recipient.
Even Facebook cannot see what is contained in that message, and this is likely to be the crux of Facebook’s argument in this case. They do not have access to the information that the Ministry of Justice is asked for. And to get it, they would have to break Facebook Messenger’s entire encryption system.
Echoes of San Bernardino
It is a case which has echoes of the infamous battle between Apple and the FBI over the encrypted iPhone of the San Bernardino terrorist. In that case, Apple repeatedly refused to break into the device for the FBI, insisting they did not have the technical ability to do so.
Eventually, US Courts ruled in Apple’s favour, stating that the FBI had not done enough to try and access the device themselves before starting court proceedings against Apple. This ruling seems to be borne out by the fact that ultimately the FBI did manage to access the device, after paying an Israeli firm $1 million to hack it.
Facebook is generally not the sort of company to oppose government requests for user data either. In keeping with their growing reputation for being free and easy with the private data of their users, Facebook has handed over information in almost 75% of instances when Governments have requested it.
But the demand to destroy their own encryption system and compromise the security of every Facebook Messenger user seems to be too much even for them.
A possible precedent with huge privacy implications
The court case is continuing behind closed doors and away from public scrutiny. But its outcome is absolutely in the public interest. Should Facebook lose the case and be forced to break Messenger’s encryption, the case would set an alarming precedent.
If the Government is permitted to force Facebook to break Messenger’s encryption, they would then be in a powerful position to require other tech companies to unlock their encryption too.
This could mean the likes of Apple, WhatsApp, and Telegram having to compromise the security and privacy protections in turn too. These features are a large part of what makes them so attractive to users.
But such a move would also have huge long-term implications for online privacy too. If encrypted communications become impossible, then many ordinary people will lose their right to online privacy.
At the same time, those who do use encryption to hide illegal activities will simply be forced further and further underground.
Encryption cannot be uninvented and advocates argue that it is better to allow those companies who cooperate with law enforcement up to a point to operate it, than force criminals onto platforms which do not cooperate at all.
However, this argument hasn’t won many supporters in the US Government which leaves many internet users there deeply worried about their online privacy. Many have turned to a VPN to ensure their data stays private online.
A VPN will encrypt all of their online data, but end-to-end encryption keeps data safe even if the recipient isn’t using a VPN. It is a vital online security tool and many people will be watching the outcome of this latest legal test case with keen interest.