Information Privacy Post
By: Paul J Mancuso
The Department of Justice recently dropped its case against Apple after the FBI managed to unlock the iPhone of one of the shooters in the San Bernardino terror attacks. The DOJ had previously obtained a court order that would have required Apple to write software to access the iPhone. However, the dispute between the technology industry and law enforcement over access to encrypted information is not over. While the DOJ waged its public fight with Apple over access to the locked iPhone, the government considered how to resolve its separate standoff with Facebook over access to its messaging application, WhatsApp.
The DOJ is currently pursuing a criminal investigation in which a federal judge has approved a wiretap, but investigators are frustrated by WhatsApp’s encryption. WhatsApp has “end-to-end encryption,” according to which only intended recipients are able to read the messages. In contrast to the iPhone dispute, as The New York Times reports, the wiretap order and all of the information associated with it are under seal. As Nate Cardozo comments for the Electronic Frontier Foundation, it appears that the DOJ has not yet asked the court for a follow-on order that would compel WhatsApp to decrypt the messages. If the DOJ were to do so, it would base its motion on the “technical assistance” provision of the WireTap Act.
As The New York Times reports, “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.” Although for the past fifty years the DOJ has relied on the wiretap as a fundamental tool to investigate and fight crimes, law enforcement officials are nowconcerned that encryption technology renders useless wiretaps in the future. As a result, it is expected that Senators Richard Burr and Dianne Feinstein of the Senate Intelligence Committee will soon introduce legislation that will expose technology companies to civil penalties for refusing to comply with court orders to help investigators access encrypted data. Although Reuters reports that the proposal is unlikely to gain traction in the House of Representatives, which supports digital privacy in the wake of the Snowden revelations, Robert Litt, the top U.S. intelligence community lawyer, thinks “momentum on the issue could turn in the event of a terrorist attack or a criminal event where strong encryption can be shown to have hindered law enforcement.”
https://www.eff.org/deeplinks/2016/03/next-front-new-crypto-wars-whatsapp
https//news.vice.com/article/fbi-unlocks-san-bernardino-iphone-and-drops-case-against-apple