By Sara Kropf
Messaging apps abound. Our digital devices capture just about everything about our personal and professional lives. That’s not necessarily bad.
But then we hear about security breaches and hackers and tech companies using our personal data every which way. Oh, and about the government getting our data too.
It’s no wonder that encrypted messaging is popular.
This development makes DOJ very, very sad.
That’s because encrypted messaging makes DOJ’s job much harder. You see, in the last decade or so, DOJ has increasingly used search warrants to obtain electronic data about a target of an investigation: Gmail accounts, iCloud storage, Slack messages, and so forth. It’s not that difficult to get a search warrant and the evidence that DOJ gathers that way is compelling. It’s one thing to listen to a cooperating witness describe a conversation from years earlier; it’s another to watch your client’s damning messages read to the jury. The former suffers from memory lapses and personal biases, and the latter is, well . . . do not.
Now that encrypted messaging is easy to use–think WhatsApp and Signal—lots of people have adopted it. DOJ may not be able to get the messages themselves but tries to turn the table at trial to argue that a defendant’s use of encrypted messages is itself evidence of guilt.
A Real Life Example
A case in federal court in Maine is a good example. There, the four defendants are accused of a criminal antitrust conspiracy. The government alleges that they violated the Sherman Act by agreeing to fix hourly wages paid to employees of home health agencies and not to hire each other’s workers. (I’m not using their names because the case is still going.)
The defendants filed a motion to preclude the government from referring to their use of encrypted messaging on WhatsApp as evidence of guilt. They asked the court to prevent the government from arguing that “there was some nefarious purpose to the use of WhatsApp” unless the government “establishes an evidentiary foundation that Defendants communicated via WhatsApp for its encryption capabilities to avoid the government’s discovery of unlawful activities.”
Not surprisingly, the government responded in a typical fashion—denying that it would ever do such a thing (pearl-clutching and saying “I would NEVER”) and then explaining exactly why the court should allow it to do it.
First, DOJ says that it “does not anticipate arguing” at trial that the defendants used the app to evade law enforcement. In the next sentence, however, DOJ says that—actually—it does plan to offer the evidence once it “lay[s] the appropriate evidentiary foundation.” It helpfully explains to the court that this evidence would “most logically be used to support the proposition that Defendants were aware that their conduct was illegal.”
DOJ then goes on to point out when it may need to refer the use of encryption. “[I]f Defendants attempt to attack the thoroughness of the Government’s investigation,” then DOJ “may need to present evidence that its investigatory avenues were limited by Defendants’ use of encrypted messaging.” Or “if Defendants challenge the authenticity of any records of their encrypted messaging, the Government may need to present evidence that these records are authentic, which may in turn entail discussion of the technical features of Defendants’ chosen messaging app, including its use of encryption.”
The bottom line is that DOJ is just dying to tell the jury that the defendants used an encrypted app to communicate with each other.
Ultimately, the judge in the case said the government cannot refer to the encryption without first asking permission: “Before the Government mentions encryption or seeks to introduce evidence of encryption, it must first approach the bench, explain its relevance, and receive a trial ruling.” Depending on what happens at trial, the court will make a mid-trial ruling.
[Practice note: A lot of pretrial evidentiary motions are handled this way. The technical legal term is “kicking the can down the road.” Although it’s not an outright win, there is a huge benefit to the defense to get a ruling like this. The government cannot talk about the evidence in its opening statement, which is often viewed as the best shot to influence the outcome of the case.]
Does Encryption Matter?
If juries were filled with 30- and 40-year olds, then DOJ’s hoped-for argument that using encrypted messaging is evidence of guilt may not have very much sway. But juries—at least in multi-week, complex white collar criminal cases—are very often dominated by retired people who have a few weeks of time to spend there. Of course, people in their 60s or 70s may recognize that encryption serves an important purpose but DOJ no doubt hopes they won’t.
I would file the same motion that the defendants did. The fact is, using encrypted messaging still isn’t widespread enough to ensure that most of the jury won’t view it as suspicious. Having several jurors think, “why would they use encryption if they had nothing to hide?” could sway things.
One place things do get sticky is when a client uses work email for most communications but then turns to encrypted messaging only for communications related to the supposed wrongdoing. The difference in communication platforms may appear to be very intentional.
For example, let’s say a hedge fund manager and his college friend who works at a pharmaceutical company are charged with insider trading. The claim is that the Pharma Guy told Hedge Fund Guy that the FDA was about to approve a certain drug and Hedge Fund Guy traded on that information. They usually text each other about happy hours and basketball games, but on the day before the public announcement of the FDA approval and the day of the suspicious trades, they use only WhatsApp encrypted messages. DOJ may not be able to get the substance of those messages, but would no doubt want to offer evidence to the jury about this change in communication methods as evidence that Hedge Fund Guy and Pharma Guy wanted to hide these particular communications.
The fact is, we should shield our personal lives from tech companies and the government. That’s why they are called our personal lives and not our public lives. DOJ may be unhappy that it can’t obtain every message we’ve ever sent, but that’s not a reason to use reasonable privacy protections as a cudgel against defendants.
