The Justice Department is debating what to do about messages it would like to obtain from the encrypted messaging application WhatsApp, according to a report published Saturday.
The application, which was purchased by Facebook in 2014, is most commonly used to exchange messages overseas. It also provides end-to-end encryption for those messages. According to sources quoted by the New York Times on Saturday, that level of security has prevented law enforcement officials from accessing content relevant to an investigation despite a wiretap order approved by a federal judge.
The nature of the investigation was not disclosed, but the sources said it was not related to terrorism. Both the Justice Department and executives at Facebook refused to comment.
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If officials ask a court to force the company to provide some sort of technical solution to the issue, it would represent a new frontier in the quest to weaken unbreakable communication. Law enforcement officials have yet to establish any legal precedent hindering encryption. They have not really even sought one.
Though the federal government has been engaged in a high-profile battle with Apple over whether that company should be forced to help unlock one of its devices used by a perpetrator in a mass shooting in California in December, the department has argued it has nothing to do with encryption, and gone to great lengths to explain why that was the case.
“We’re not asking for a backdoor, nor are we asking to turn anything on to spy on anyone,” Attorney General Loretta Lynch said last week. “What we’re asking them to do is do what their customer wants. The owner of the phone is the county, the employer of one of the terrorists who is now dead.”
The department has said in legal briefs that it wants the company to disable a self-destruct mechanism on the phone that enables after an incorrect password has been entered more than ten times. Because the phone was actually owned by the county of San Bernardino, Syed Rizwan Farook’s employer, attorneys argue that the case has nothing to do with breaking encryption.
A case against WhatsApp would represent a new issue. It would have implications for a variety of messaging services that offer end-to-end encryption. Those would include Apple’s iMessage and Cyber Dust, the latter of which is a messaging platform owned by tech billionaire Mark Cuban. It would also include foreign applications, like the Berlin-based Telegram, over which American courts have little control.
President Obama touched on the issue of encryption on Friday in remarks delivered at the South by Southwest conference in Texas, expressing a sense that it needed to be somehow weakened.
“If technologically it is possible to make an impenetrable device or system where the encryption is so strong that there is no key, there’s no door at all, then how do we apprehend the child pornographer, how do we solve or disrupt a terrorist plot?” Obama asked.
He speculated on how encrypted applications could affect tax collection, adding, “What mechanisms do we have available to even do simple things like tax enforcement because if in fact you can’t crack that at all? [If] government can’t get in, then everybody is walking around with a Swiss bank account in their pocket.”
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“We’re going to have to make some decisions about how do we balance these respective risks,” he added. “My conclusion so far is you cannot take an absolutist view.”
