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.

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

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  1. icon
    got_runs? (profile), 2 Oct 2018 @ 10:10am

    The government already has it.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 2 Oct 2018 @ 10:32am


    So in your world this is all a ruse to make us think they don't already have everything decrypted?

    Or are you confusing the possession of encryption algorithms with being able to crack the algorithm?

    reply to this | link to this | view in thread ]

  3. icon
    UniKyrn (profile), 2 Oct 2018 @ 10:38am

    Re: Re:

    If they already had everything decrypted, do you think they'd be fighting so hard in public. I rather suspect they'd just use what they found and be fighting a battle for evidence to be allowed where the gathering method was a "National Security Secret".

    I'm more inclined to believe that they are outnumbered by the number of people developing encryption versus how many people they have trying to break it, so that's why they keep fighting in public for their "only us good guys" backdoor.

    reply to this | link to this | view in thread ]

  4. icon
    Uriel-238 (profile), 2 Oct 2018 @ 10:41am

    Given the last time...

    In the San Bernadino case, the FBI claimed to have exhausted all other options when they actually had refrained from doing so for political expediency.

    So it's fair to assume they're doing the same this time, and have not exhausted all other options before turning to the company providing private communications. It's fair to presume they're doing it not out of necessity, but political expediency.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 2 Oct 2018 @ 10:55am

    Re: Given the last time...

    Both yours and UniKyrn's response are both very plausible and likely a sporadic mix of both!

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 2 Oct 2018 @ 11:08am

    Re: Re: Re:

    Not the case. The FBI is purposely misleading courts fishing for that magical precedent that would legally bar encryption under Federal jurisdiction (assuming it survived the inevitable SCOTUS scrutiny). This is a topic they've been pursuing for many years now under multiple administrations.

    What they fail to realize is that even if they got a favorable ruling they'd still have to change the law to make use of encryption a criminal act otherwise such rulings would have no teeth. People would recognize those channels were no longer safe (not that they really were to begin with) and either use offshore services or free software with end to end encryption, or both. That effectively nullifies any such favorable precedent. MS-13 is already breaking the law in this context, using non-backdoored software is going to be as much of a no-brainer as having a cache of automatic weapons.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 2 Oct 2018 @ 12:13pm

    citation needed

    The inset quote is not from the story linked in the paragraph that precedes it, nor is that story by the authors referenced.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 2 Oct 2018 @ 12:28pm

    Re: Re: Re:

    Ok, disclaimer, I don't think they have any of that info decrypted.

    That said,


    To be fair, it's theoretically possible they do have it decrypted. The proven interception and modification of hardware, along with the Equation Group, it is theoretically plausible they were able to hack the system, if not the encryption, or something else which got them the access they needed.

    The problem is, to use that evidence in court would require them disclosing how they got it, any means of which is currently illegal, unless Facebook voluntarily complied and handed it over to them. So it would expose their operations and level of access, which would spark a major backlash and ruin all chances of cooperation in the future, not to mention all developers quickly finding and patching said holes.

    They could be going for parallel construction, if they have the decrypted evidence (illegally obtained) and are trying to compel Facebook to provide the same evidence while at the same time getting a precedent to use in the future against other companies.


    I don't think they have it. That's giving them a little bit too much credit, despite them having a siphon on ATT's internet backbone. Not to mention that level of intrusion into an American company's systems would be unparalleled. Google was pissed when all they did was tap their wires.

    reply to this | link to this | view in thread ]

  9. icon
    ShadowNinja (profile), 2 Oct 2018 @ 12:30pm

    Given the government's history, I wouldn't ever trust them claiming there's no other way then some radical solution they demand from the courts.

    They knew all along how to break into the San Bernadino phone, and possibly even locked themselves out of it on purpose just to get the precedent.

    But you can look back farther then that for examples of the government blatantly lying to the courts and public. In **Korematsu v. United States** The government argued that it was vital for national security to throw all Japanese Americans into internment camps, and there was no other way to secure our nation. Except... there was solid proof in then hidden government documents that the government knew full well that it was miserable failure that wasn't making us anymore secure and wasn't helping us beat Japan in WW2, all while violating countless Japanese American's rights.

    And the government horrifyingly won the Korematsu v. United States case. The only reason the ruling was overturned was because the government lied to the SCOTUS by hiding those documents, yet there's still damage today caused by that ruling and those constitutional rights violations 3/4's of a century ago.

    reply to this | link to this | view in thread ]

  10. icon
    Bergman (profile), 2 Oct 2018 @ 6:24pm


    The same logic used against Korematsu could have seen the internment of anyone of German or Italian descent too. Isn't it funny though, how the people pushing for internment of 'enemies' didn't want to have to intern themselves?

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 2 Oct 2018 @ 10:23pm

    Case number?

    Does anyone have the caption or case number for this matter? I've only seen it referred to as "a case in EDCA" but I can't look it up without an identifier of some sort.

    reply to this | link to this | view in thread ]

  12. icon
    Tanner Andrews (profile), 5 Oct 2018 @ 1:24am


    The only reason the ruling [Korematsu v. U.S., 323 U.S.214] was overturned

    It gets worse. The ruling was not overturned, and is still good law to this day. The conviction was vacated four decades later, at the trial level, when the government misconduct (concealment of evidence, untruthful representations to the court) came out, but the precedent stands.

    There obiter dicta suggesting that the Supreme Court might not follow Korematsu, but this is unconvincing in that the holding follows it.

    reply to this | link to this | view in thread ]

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