San Francisco—The Electronic Frontier Foundation, ACLU and Stanford cybersecurity scholar Riana Pfefferkorn asked a federal appeals court today to make public a ruling that reportedly forbade the Justice Department from forcing Facebook to break the encryption of a communications service for users.



Media widely reported last fall that a federal court in Fresno, California denied the government’s effort to compromise the security and privacy promised to users of Facebook’s Messenger application. But the court’s order and details about the legal dispute have been kept secret, preventing people from learning about how DOJ sought to break encryption, and why a federal judge rejected those efforts.



EFF, ACLU and Pfefferkorn told the appeals court in a filing today that the public has First Amendment and common law rights to access judicial opinions and court records about the laws that govern us. Unsealing documents in the Facebook Messenger case is especially important because the public deserves to know when law enforcement tries to compel a company that hosts massive amounts of private communications to circumvent its own security features and hand over users’ private data, EFF, ACLU and Pfefferkorn said in a filing to the U.S. Court of Appeals for the Ninth Circuit. ACLU and Pfefferkorn, Associate Director of Surveillance and Cybersecurity at Stanford University’s Center for Internet and Society, joined EFF’s request to unseal. A federal judge in Fresno denied a motion to unseal the documents, leading to this appeal.



Media reports last year revealed DOJ’s attempt to get Facebook to turn over customer data and unencrypted Messenger voice calls based on a wiretap order in an investigation of suspected M-13 gang activity. Facebook refused the government’s request, leading DOJ to try to hold the company in contempt. Because the judge’s ruling denying the government’s request is entirely under seal, the public has no way of knowing how the government tried to justify its request or why the judge turned it down—both of which could impact users’ ability to protect their communications from prying eyes.



“The ruling likely interprets the scope of the Wiretap Act, which impacts the privacy and security of Americans’ communications, and it involves an application used by hundreds of millions of people around the world,” said EFF Senior Staff Attorney Andrew Crocker. “Unsealing the court records could help us understand how this case fits into the government’s larger campaign to make sure it can access any encrypted communication.’’



In 2016 the FBI attempted to force Apple to disable security features of its mobile operating system to allow access to a locked iPhone belonging to one of the shooters alleged to have killed 14 people in San Bernardino, California. Apple fought the order, and EFF supported the company’s efforts. Eventually the FBI announced that it had received a third-party tip with a method to unlock the phone without Apple's assistance. We believed that the FBI’s intention with the litigation was to obtain legal precedent that it could compel Apple to sabotage its own security mechanisms.



“The government should not be able to rely on a secret body of law for accessing encrypted communications and surveilling Americans,” said EFF Staff Attorney Aaron Mackey. “We are asking the court to rule that every American has a right to know about rules governing who can access their private conversations.



For the motion:

https://www.eff.org/files/2019/06/12/e.c.f._9th_cir._19-15472_dckt_000_filed_2019-06-12.pdf





