Court Says DOJ's Attempt To Force Facebook To Break Encryption Can Remain Under Seal

from the thanks-for-sticking-up-for-the-millions-of-little-guys dept

Late last summer, the DOJ attempted to get a court to force Facebook to break encryption on its Messenger service so investigators could tap into phone calls being made by criminal suspects. Facebook responded that doing so would fundamentally alter the way Messenger works. The request was a non-starter according to Facebook. According to the DOJ, it was nothing more than asking a few smart people to do a few smart things, so the burden Facebook complaints about "burdensome requests" was overstated.

A couple of months later, the DOJ had again failed to obtain favorable anti-encryption precedent. The underlying documents remain under seal, but sources "close to the case" had indicated the court had sided with Facebook.

The secret litigation over software alterations that would affect millions of Facebook users continues. Messenger's encryption is no longer at stake -- at least not for the time being -- but the government still wants the public to stay out of its private discussions with our federal court system.

Petitions have been filed by a number of rights groups and journalists to have these documents unsealed. According to the latest Reuters report on this legal battle, the federal court in California is siding with the government on this issue.

Groups including the American Civil Liberties Union argued that the public’s right to know the state of the law on encryption outweighed any reason the U.S. Justice Department might have for protecting a criminal probe or law-enforcement method. The Washington Post newspaper also filed a legal brief to unseal the records. However, U.S. District Judge Lawrence O’Neill in Fresno ruled that the documents described sensitive law enforcement techniques and releasing a redacted version would be impossible.

The petitioners aren't just fighting the DOJ and its likely overstated fears about exposing internet wiretap orders and their innards. They're also fighting against the social media giant which feels unsealing the documents would allow its competitors to walk away with handfuls of trade secrets. From the order [PDF]:

Facebook’s assertion that its internal processes that were the subject of the Government’s motion constituted trademark and protected material and information, and that public disclosure would provide such protected information to competitors, thereby jeopardizing substantial business quality, productivity, and profit, was legitimate, true, and reasonable…

Facebook is receptive of releasing redacted documents, though. The government doesn't want anything released. And the court -- citing the apparently ongoing investigation -- agrees that even a redacted release would harm the government's interest in preserving its investigative trade secrets.

That may be the temporary answer but it can't be the final, permanent answer. The investigation can't last forever and attempts to break encryption on communication tools millions of Americans use shouldn't be kept secret by the nation's courts, who have some obligation to keep the public informed of government means and methods that affect their everyday life.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: backdoors, doj, encryption, facebook messenger, secrecy

Companies: facebook