November 28, 2018

NEW YORK — The American Civil Liberties Union today filed a motion to unseal a secret judicial ruling that reportedly prevented the Department of Justice from securing a court order to force Facebook to wiretap encrypted voice conversations on Facebook Messenger as part of an FBI investigation into the MS-13 gang.

Facebook Messenger’s voice calls appear to use standard end-to-end encryption, which makes communications inaccessible to anyone but the individuals who participate in the conversation. The encryption method ensures the communications service provider does not have access to the keys necessary to decrypt the conversations, making it impossible to access the contents of the conversation without dismantling the encryption system itself.

According to the reports, Facebook refused a request from the Justice Department to gain access to communications, arguing that complying with the request would require the company to rewrite the Messenger app’s code and dismantle the encryption system for all users. The Justice Department reportedly moved to hold Facebook in contempt of court and lost.

“The outcome of this legal dispute between Facebook and the Justice Department has the potential to affect the private communications of millions of Americans who use communication services such as Messenger, WhatsApp, Skype, and Microsoft Outlook,” said Jennifer Granick, surveillance and cybersecurity counsel with the ACLU. “The public deserves to know why the government thought it could dismantle measures that protect their right to privacy online, and how they can defend that right should the government try to force another service to undermine its security features.”

The ACLU’s motion seeks to make public the legal reasoning that decided the case, what authority the Justice Department thought it had to force Facebook to undermine its security infrastructure, and why the court determined the government was wrong.

“When Apple and the FBI got into a similar situation in 2016, the legal dispute became a national flashpoint with public court proceedings, the FBI director penning an op-ed, Apple’s CEO writing an open letter to customers, Congress holding hearings, and the president delivering a speech to Americans. This latest legal dispute between Facebook and the government shouldn’t be treated any differently,” said ACLU staff attorney Brett Max Kaufman.

The ACLU emphasized in its motion that the organization would not object to appropriate redactions made to protect any details that would hamper legitimate law enforcement investigations.

The ACLU of Northern California, Electronic Frontier Foundation, and Riana Pfefferkorn joined the ACLU in the motion, which was filed in federal court in California.

A blog post by two law students who played a substantial role in the research and writing of the motion as part of the Technology Law & Policy Clinic at NYU School of Law, where Kaufman co-teaches, can be found here: https://www.aclu.org/blog/privacy-technology/internet-privacy/aclu-seeks-secret-ruling-stopped-feds-hacking-facebook.

The motion to unseal can be found here: https://www.aclu.org/legal-document/motion-unseal-court-records-concerni....

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