Civil liberties groups are calling on a federal judge to reveal how the government tried — and why it failed — to force Facebook to wiretap the encrypted conversations of users during an investigation into the violent transnational gang MS-13.
In August, the Justice Department tried to make Facebook break the encryption on its Messenger platform to allow law enforcement to listen in on Facebook voice calls as part of an MS-13 investigation in Fresno, California, Reuters reported. Facebook wouldn’t, and then the social media giant successfully fought off federal investigators in court when investigators tried holding Facebook in contempt for not cooperating, the Washington Post reported.
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But even after Facebook’s legal win, court documents on the legal battle remain secret — and now the American Civil Liberties Union is pushing to unseal them.
“What is clear is that the public has a right to know the legal reasoning that decided this case — namely, what authority the Justice Department thought it had to force Facebook to undermine its security infrastructure and why the court determined that the government was wrong,” Kara Brandeisky and Kristin Mulvey, of the New York University Law School Technology Law & Policy Clinic, wrote in an ACLU blog post.
The ACLU filed a motion Wednesday in federal court asking for the secret records to become public, writing in the blog post that “a critical legal dispute potentially affecting the private communications of millions of Americans was litigated entirely in secret.”
Facebook protects users’ voice conversations using what’s called “end-to-end encryption,” according to the ACLU. That means only the users themselves — and not the platform making the communications possible — have keys to access the messages.
If law enforcement wanted to figure what Facebook users (for example, targets in an MS-13 investigation) were speaking about in voice calls over the platform, they would need the platform to dismantle its encryption setup, the ACLU said.
“That’s what the Justice Department reportedly asked Facebook to do: dismantle the privacy measures that protect user communications on Messenger,” according to the ACLU.
Text messages are encrypted differently: Written communications on Facebook and other platforms are decrypted (in part for use in targeted advertising) after they’re sent, “making them available for court-ordered interception,” according to Reuters.
The Electronic Frontier Foundation, a nonprofit that pushes for digital privacy protections, joined the ACLU’s legal push in the U.S. District Court for the Eastern District of California.
The ACLU’s Brandeisky and Mulvey put the stakes in perspective by pointing out how many people use Facebook Messenger and similar platforms.
“Some 1.3 billion people around the world use Facebook Messenger, but even more use other communication services such as WhatsApp, Skype, and Microsoft Outlook,” they wrote. “Facebook may have won this time, but if the government tries to force another service to undermine its security features and that service wants to fight back, it won’t be able to rely on the court’s reasoning so long as the opinion remains under wraps.”
According to the Electronic Frontier Foundation, the Wiretap Act requires traditional telephone companies to make it possible for investigators to monitor phone communications.
But demanding Facebook do the same is uncharted territory, EFF said.
“To our knowledge, this hasn’t been done before, and it raises novel questions about modern communication providers’ duties to assist with wiretaps involving encryption,” EFF’s Camille Fischer and Andrew Crocker wrote.
Fischer and Crocker said what investigators asked of the social media company may not even be possible.
“Facebook … likely cannot decrypt encrypted Messenger texts and voice calls,” they said.
Both the ACLU and EFF compared the situation to when federal investigators tried to make Apple create a new operating system so the government could get into a San Bernardino, California, mass shooting suspect’s iPhone. But the legal fight in the Apple encryption dispute (which the FBI eventually abandoned) was conducted in public, unlike the Facebook dispute, the ACLU noted.
According to court records, the Facebook encryption dispute started in August when an FBI agent said “there is no practical method available by which law enforcement can monitor these calls” over Facebook among MS-13 suspects, Ars Technica reports.
Even without wiretapping the Facebook calls, arrests were made: In August, 16 alleged MS-13 gang members appeared in a Fresno federal court on charges of conspiracy to distribute controlled substances and possession of controlled substances for distribution, the Fresno Bee reported.