In Saturday's edition of the New York Times, Matt Apuzzo reports that the Department of Justice is locked in a prolonged standoff with WhatsApp. The government is frustrated by its lack of real-time access to messages protected by the company's
end-to-end encryption . The story may represent a disturbing preview of the next front in the FBI's war against encryption.
It appears that the Department of Justice is considering pursuing another, similarly dangerous legal attack on encryption. The fact that the government is even considering such an action proves that our worst fears were right.
This time they're targeting WhatsApp, the Facebook-owned messaging app which started adding strong end-to-end encryption in 2014 . According to the New York Times, the government has obtained a wiretap order, authorizing real time acquisition of the
WhatsApp messages (probably text chats rather than voice calls, but that's unclear at this stage) in an ongoing criminal investigation. WhatsApp is, of course, unable to provide decrypted text in response to the wiretap order, just as it was unable to
comply with a similar order by a Brazilian court earlier this month. The whole point of end-to-end encryption is that no one but the intended recipient of a message is able to decipher it.
From the New York Times' reporting, it looks like the government has so far only obtained an initial wiretap order--demanding WhatsApp to turn over message content it can't access. The Department of Justice has not yet decided whether to ask the court
for a follow-on order that would compel WhatsApp to decrypt the messages. Presumably, that second order would look similar to the San Bernardino order and direct WhatsApp to write code that would break its own encryption and allow it to provide plain
text in response to the wiretap order.
If the government decides to seek that second order against WhatsApp, it would almost certainly be grounded, not in the All Writs Act but in the technical assistance provision of the Wiretap Act . So 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. 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.
As of now, we're unable to find any additional publicly available information regarding the order against WhatsApp. The New York Times reports that, unlike in the San Bernardino case, the WhatsApp litigation is being kept under seal. We'll keep an eye
out for any additional documents, and will continue to blog as more becomes public. For now however, 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.