WhatsApp Encryption Said to Stymie Wiretap Order
WhatsApp Encryption Said to Stymie Wiretap Order
By MATT APUZZO MARCH 12, 2016
WASHINGTON — While the Justice Department wages a public
fight with Apple over access to a locked iPhone, government officials are
privately debating how to resolve a prolonged standoff with another technology
company, WhatsApp, over access to its popular instant messaging application,
officials and others involved in the case said.
No decision has been made, but a court fight with
WhatsApp, the world’s largest mobile messaging service, would open a new front
in the Obama administration’s dispute with Silicon Valley over encryption,
security and privacy.
WhatsApp, which is owned by Facebook, allows customers to
send messages and make phone calls over the Internet. In the last year, the
company has been adding encryption to those conversations, making it impossible
for the Justice Department to read or eavesdrop, even with a judge’s wiretap
order.
As recently as this past week, officials said, the
Justice Department was discussing how to proceed in a continuing criminal
investigation in which a federal judge had approved a wiretap, but
investigators were stymied by WhatsApp’s encryption.
The Justice Department and WhatsApp declined to comment.
The government officials and others who discussed the dispute did so on
condition of anonymity because the wiretap order and all the information
associated with it were under seal. The nature of the case was not clear, except
that officials said it was not a terrorism investigation. The location of the
investigation was also unclear.
To understand the battle lines, consider this imperfect
analogy from the predigital world: If the Apple dispute is akin to whether the
F.B.I. can unlock your front door and search your house, the issue with
WhatsApp is whether it can listen to your phone calls. In the era of
encryption, neither question has a clear answer.
Some investigators view the WhatsApp issue as even more
significant than the one over locked phones because it goes to the heart of the
future of wiretapping. They say the Justice Department should ask a judge to
force WhatsApp to help the government get information that has been encrypted.
Others are reluctant to escalate the dispute, particularly with senators saying
they will soon introduce legislation to help the government get data in a
format it can read.
Whether the WhatsApp dispute ends in a court fight that
sets precedents, many law enforcement officials and security experts say that
such a case may be inevitable because the nation’s wiretapping laws were last
updated a generation ago, when people communicated by landline telephones that
were easy to tap.
“The F.B.I. and the Justice Department are just choosing
the exact circumstance to pick the fight that looks the best for them,” said
Peter Eckersley, the chief computer scientist at the Electronic Frontier
Foundation, a nonprofit group that focuses on digital rights. “They’re waiting
for the case that makes the demand look reasonable.”
A senior law enforcement official disputed the notion
that the government was angling for the perfect case, and said that litigation
was not inevitable.
This is not the first time that the government’s wiretaps
have been thwarted by encryption. And WhatsApp is not the only company to clash
with the government over the issue. But with a billion users and a particularly
strong international customer base, it is by far the largest.
Last year, a dispute with Apple over encrypted iMessages
in an investigation of guns and drugs, for instance, nearly led to a court
showdown in Maryland. In that case, as in others, the company helped the
government where it was able to, and the Justice Department backed down.
Jan Koum, WhatsApp’s founder, who was born in Ukraine,
has talked about his family members’ fears that the government was
eavesdropping on their phone calls. In the company’s early years, WhatsApp had
the ability to read messages as they passed through its servers. That meant it
could comply with government wiretap orders.
But in late 2014, the company said that it would begin
adding sophisticated encoding, known as end-to-end encryption, to its systems.
Only the intended recipients would be able to read the messages.
“WhatsApp cannot provide information we do not have,” the
company said this month when Brazilian police arrested a Facebook executive
after the company failed to turn over information about a customer who was the
subject of a drug trafficking investigation.
The iPhone case, which revolves around whether Apple can
be forced to help the F.B.I. unlock a phone used by one of the killers in last
year’s San Bernardino, Calif., massacre, has received worldwide attention for
the precedent it might set. But to many in law enforcement, disputes like the
one with WhatsApp are of far greater concern.
For more than a half-century, the Justice Department has
relied on wiretaps as a fundamental crime-fighting tool. To some in law
enforcement, if companies like WhatsApp, Signal and Telegram can design unbreakable
encryption, then the future of wiretapping is in doubt.
“You’re getting useless data,” said Joseph DeMarco, a
former federal prosecutor who now represents law enforcement agencies that
filed briefs supporting the Justice Department in its fight with Apple. “The
only way to make this not gibberish is if the company helps.”
“As we know from intercepted prisoner wiretaps,” he
added, “criminals think that advanced encryption is great.”
Businesses, customers and the United States government
also rely on strong encryption to help protect information from hackers,
identity thieves and foreign cyberattacks. That is why, in 2013, a White House
report said the government should “not in any way subvert, undermine, weaken,
or make vulnerable generally available commercial encryption.”
In a twist, the government helped develop the technology
behind WhatsApp’s encryption. To promote civil rights in countries with
repressive governments, the Open Technology Fund, which promotes open societies
by supporting technology that allows people to communicate without the fear of
surveillance, provided $2.2 million to help develop Open Whisper Systems, the
encryption backbone behind WhatsApp.
Because of such support for encryption, Obama
administration officials disagree over how far they should push companies to
accommodate the requests of law enforcement. Senior leaders at the Justice
Department and the F.B.I. have held out hope that Congress will settle the
matter by updating the wiretap laws to address new technology. But the White
House has declined to push for such legislation. Josh Earnest, the White House
spokesman, said on Friday that he was skeptical “of Congress’s ability to
handle such a complicated policy area.”
James B. Comey, the F.B.I. director, told Congress this
month that strong encryption was “vital” and acknowledged that “there are
undoubtedly international implications” for the United States to try to break
encryption, especially for wiretaps, as in the WhatsApp case. But he has called
for technology companies and the government to find a middle ground that allows
for strong encryption but accommodates law enforcement efforts. President Obama
echoed those remarks on Friday, saying technology executives who were
“absolutist” on the issue were wrong.
Those who support digital privacy fear that if the
Justice Department succeeds in forcing Apple to help break into the iPhone in
the San Bernardino case, the government’s next move will be to force companies
like WhatsApp to rewrite their software to remove encryption from the accounts
of certain customers. “That would be like going to nuclear war with Silicon
Valley,” said Chris Soghoian, a technology analyst with the American Civil
Liberties Union.
That view is one reason government officials have been
hesitant to rush to court in the WhatsApp case and others like it. The legal
and policy implications are great. While no immediate resolution is in sight,
more and more companies offer encryption. And technology analysts say that
WhatsApp’s yearlong effort to add encryption to all one billion of its customer
accounts is nearly complete.
Eric Lichtblau contributed reporting from Washington and
Katie Benner from San Francisco.
A version of this article appears in print on March 13,
2016, on page A1 of the New York edition with the headline: Messaging App Is
Latest Front in Tech Debate.
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