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

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  1. icon
    Matthew Cline (profile), 25 Feb 2019 @ 7:32am

    Re: Re:

    Other than the actual encryption algorithm, just how many ways are there to implement encrypted messaging, and how could any of them be actual secrets?

    The details of a protocol for passing and verifying messages with end-to-end encryption can be done in lots of different ways, though at a broad level there aren't that many ways to do it properly. It might be possible for someone to come up with some clever new twist to it, but if it really was a new twist that no one else had thought of then it'd be a prime candidate for a patent, rather than using a trade secret. Possibilities for claiming a trade secret:

    1. The executive in charge of the situation just reflexively claims trade secrets for everything.
    2. The executive in charge believes in security through obscurity, despite everything the engineers say.
    3. They've realized that there's some weakness in the security of the protocol, a weakness which shows up in the court filings. If they change the protocol to fix it this would somehow reveal the weakness of the original protocol, and rather than get the certain hit to their reputation for revealing that they'd rather do nothing and hope that no security researcher ever notices.
    4. Something in the court filings reveals that they've implemented their protocol in a way that lets them harvest more metadata than people might expect, and they don't want to reveal this.

    And about the encryption algorithm used: they'd use an existing algorithm which has been vetted by security experts, as you'd have to be a complete noob in security to roll your own encryption algorithm. (Of course, maybe they were a complete noob and that's what they want to hide)

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