If a report from this weekend’s New York Times is to be believed, the popular instant messaging platform WhatsApp may be the next technology company to find itself in the crosshairs of the Department of Justice and its war on crypto.
Government officials are reportedly torn on how to proceed with a wiretap that a federal judge recently granted them against the company in connection to a criminal investigation.
While the judge has given the DOJ the green light, officials there have apparently been hamstrung by the encryption present in WhatsApp, a feature the service’s parent company, Facebook, began deploying in the app nearly two years ago. Even with the judge’s OK, the DOJ are having an exceedingly difficult time trying to intercept messages.
Matt Apuzzo, in an article from Sunday’s Times, described the news in depth, citing government officials who, given much of the information revolves around a wiretap order, spoke on the condition of anonymity.
Unlike the FBI’s ongoing battle with Apple, which is rooted in 1789’s All Writs Act, one would have to assume the DOJ is basing its claims around WhatsApp on a similar set of laws, the Wiretap Act. Apuzzo writes that the government’s issues with WhatsApp will likely compel officials, perhaps sooner than later, to urge the court to revise the Act, which was enacted back in 1978 when the only wires being tapped were landlines.
It shouldn’t be a surprise; especially given Apple’s much-publicized tug of war with the FBI over the past month or so, that experts see a correlation between the two fights when it comes to encryption and the future of wiretapping.
“While the result of the All Writs Act litigation in San Bernardino wouldn’t directly control the outcome of any Wiretap Act case against WhatsApp, courts apply similar tests in the two contexts,” Nate Cardozo, the Electronic Frontier Foundation’s Staff Attorney wrote Sunday.
“In both All Writs and Wiretap Act cases, courts evaluate whether compliance with an order would constitute an ‘undue burden.’ Therefore all the rather convincing arguments Apple has made in San Bernardino would be available to WhatsApp as well,” Cardozo wrote.
Because so little information has been publicly said regarding the government’s actions around WhatsApp, details around the order are a bit hazy, Apuzzo claims. It’s unclear whether the government is looking to specifically access WhatsApp messages, or voice calls with the order, although its assumed the former. The location of the investigation, and additional details around the criminal case have not yet been divulged either.
If the battle does wind up following in the footsteps of FBI vs. Apple, there’s a chance the next step could involve the DOJ asking a judge for a follow-up order to force WhatsApp to decrypt sensitive information. The move, which could potentially demand Facebook and WhatsApp to build code to break its own crypto, is an outcome privacy advocates, including the EFF, are staunchly against.
“We applaud WhatsApp (and Facebook) for standing strong in the face of orders, whether Brazilian or American, to do the impossible or to compromise our security for the sake of enabling click-of-the-mouse surveillance,” Cardozo wrote Sunday.
In 2014 WhatsApp announced it would begin enabling end-to-end encryption between users, a feature that appears to be confounding government officials seeking real time access to the messages. The service boasts roughly one billion users and according to the New York Times, its nearly complete applying the feature.
Encryption in the messaging app has already rustled feathers abroad. Earlier this month officials in Brazil arrested a Facebook executive after the company allegedly failed to submit information from a WhatsApp account that a judge in the country requested pertaining to a drug trafficking investigation.
According to a statement issued by the federal government, the arrest was made because Facebook was “repeatedly failing to comply with judicial orders,” even though the company has stressed multiple times since it began implementing end-to-end encryption that it doesn’t store user messages on its servers.
Both Apple and DOJ are slated to meet next Tuesday before Judge Sheri Pym, the United States Magistrate who initially issued the order, nearly a month ago, for Apple to assist the FBI in unlocking the phone that belonged to San Bernarndino shooter Syed Farook. Even though that meeting is still a week away, it hasn’t stopped the two parties from going back and forth over the past several weeks. Most recently, in a Justice Department filing on Thursday, officials called Apple’s rhetoric “corrosive,” and “false,” adding that the company can remove “technological barriers” so the FBI can search the phone “without undue burden.”
