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.