Exclusive: In test case, U.S. fails to force Facebook to wiretap Messenger calls - sources
Exclusive: In test case, U.S. fails to force Facebook to
wiretap Messenger calls - sources
By Joseph Menn, Dan Levine SSEPTEMBER 28, 2018 / 12:05 PM
SAN FRANCISCO (Reuters) - 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.
Members of a joint federal and state task force probing
the international criminal gang MS-13 had tried in August to hold Facebook in
contempt of court for failing to carry out a wiretap order, Reuters reported
last month.
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 details of his reasoning were not available.
The government’s request had alarmed technology
executives and privacy advocates. Officials in the United States and other
Western countries are stepping up attempts to ban or limit strong encryption
and expand their wiretapping capabilities.
An affidavit by an FBI agent filed publicly in the Fresno
criminal proceedings said that at the time of the arrests, law enforcement
could not monitor any Messenger calls.
Telecommunications companies are required to give police
access to calls under federal law, but many apps that rely solely on internet
infrastructure are exempt. Facebook contended Messenger was covered by that
exemption.
The public court filings showed the government was
intercepting all ordinary phone calls and Messenger texts between the accused
gang members.
The FBI affidavit cited three Messenger calls that
investigators were unable to hear. The participants in those calls are now in
jail pending trial.
Neither prosecutors nor Facebook would answer questions
about the Fresno U.S. Attorney’s office attempt to hold Facebook in contempt or
about the underlying wiretap request, including why the matter was dismissed.
The judge heard oral arguments on the contempt motion on
Aug. 14. Facebook and a Department of Justice spokeswoman declined to comment.
FBI agent Ryan Yetter, in the affidavit dated Aug. 30,
wrote “currently, there is no practical method available by which law
enforcement can monitor” calls on Messenger. The affidavit was filed in support
of a criminal complaint against members of MS-13, which is active in the United
States and Central America.
MS-13 also known as Mara Salvatrucha is an international
criminal gang that originated in Los Angeles in the 1980s. The gang’s
activities later spread to many parts of the United States, Canada, Mexico, and
Central America.
U.S. President Donald Trump frequently uses the gang to
symbolize what he faults as lax U.S. immigration policy.
Most of the 16 gang suspects were arrested by Aug. 30,
and the indictment was issued on Sep. 13. Including charges by California
state, more than two dozen people were accused of murder and other crimes.
More information about the government’s court tussle with
Facebook may come to light through lawyers for the 16 defendants. Mark
Broughton, an attorney for one of the defendants, Denis Barrera-Palma, said he
would soon start receiving the government’s evidence.
If the prosecutors’ application to wiretap Facebook
Messenger voice calls is not included, Broughton said he would ask for it.
“I would be interested in seeing, or trying to get an
order unsealing that information to properly represent my client,” Broughton
said.
Barrera-Palma faces federal counts of assault with a
deadly weapon and drug conspiracy, and California charges of murder conspiracy.
He has pleaded not guilty to the federal counts and has not yet entered a plea
in state court.
The still-private filings in the skirmish with Facebook
might explain why federal officials picked Messenger’s voice calls as a target.
One matter judges weigh in wiretap matters is how much of
a burden it would be for the company to help. In contrast to Facebook’s
WhatsApp messaging app and a separate part of Messenger called secret
conversations, Facebook plays a small technical role facilitating Messenger
voice calls, making interception possible with some effort.
Nevertheless, Facebook maintained it could not be ordered
to alter its software or hack its user in order to help the FBI. Apple made a
similar argument in refusing to break into a terrorist’s iPhone in 2016.
Reporting by Joseph Menn and Dan Levine in San Francisco;
editing by Greg Mitchell and Grant McCool
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