Privacy groups are still trying to get documents unsealed in Facebook encryption case

The ACLU and EFF say a failure to clarify the legal requirements for giving authorities access to encrypted communications would set a dangerous precedent.
( Flickr user <a href="">Christoph Scholz</a>

Civil liberties groups on Tuesday asked an appeals court to unseal a federal judge’s ruling that rejected a U.S. government effort to force Facebook to decrypt voice calls.

The American Civil Liberties Union and the Electronic Frontier Foundation argue that the public has a right to know about how U.S. prosecutors tried to force Facebook to decrypt the calls in a 2018 investigation of the MS-13 gang, and why a judge rejected the prosecutors’ effort. The Department of Justice is urging the court to keep the ruling sealed, arguing that making it public could compromise ongoing criminal investigations.

It is the latest front in a broader standoff between privacy advocates and law enforcement over access to encrypted communications. Law enforcement officials have for years lamented that strong encryption has hampered investigations into terrorists and criminals. But many technologists say any software especially designed for law enforcement access risks weakening security for many other internet users.

In this case, civil liberties groups say a failure to clarify the legal requirements for giving authorities access to encrypted communications would set a dangerous precedent.


“[U]sers of electronic communications services, and the providers of those services themselves, would not know whether federal law requires providers to weaken the security of their services at the behest of the police,” Riana Pfefferkorn, a scholar at Stanford Law School’s Center for Internet and Society and one of the plaintiffs, told CyberScoop in an email.

The DOJ pressure on Facebook stemmed from a 2018 criminal case against suspected members of the MS-13 gang in California. After the FBI said it couldn’t access calls made on Facebook Messenger by the suspects, prosecutors tried to get a judge to hold Facebook in contempt of court for failing to carry out a wiretap order to decrypt the calls. The judge rejected the prosecutors’ request, Reuters reported in September 2018.

A U.S. district judge denied the ACLU and EFF’s request to unseal the documents last year, but the groups have taken the case to the U.S. Court of Appeals for the Ninth Circuit.

“[T]he Department of Justice has told us that the current law is not strong enough and does not give it enough authority to conduct the surveillance it needs to in investigations,” Jennifer Granick, a lawyer for the ACLU, argued during the video-conferenced hearing Tuesday. “The public needs to know what that current law is.”

But Scott Meisler, a DOJ lawyer, argued that unsealing the ruling could disrupt other criminal investigations.


“If we have parallel proceedings where we have right-of-access litigation on one side versus criminal discovery … on the other side, I do think it interferes not just with ongoing investigations but with the way that ongoing prosecution is carried out,” Meisler told the court.

It is unclear when the appeals court will make a ruling on the documents.

The debate over ‘going dark’

The standoff over encryption has escalated in recent months, as Justice officials have held conferences to galvanize support for their position against allowing people to “go dark” in their communications.

They have sympathetic ears on Capitol Hill. In March, a bipartisan group of senators introduced legislation that would force tech companies to do more to fight child exploitation or risk losing liability protections. Critics say there would be no way for companies to comply with the bill without undermining strong encryption.


The Facebook Messenger case is reminiscent of when the FBI took Apple to court in 2016 to compel the tech company to unlock the iPhone of the perpetrator of the San Bernardino terrorist attack. The bureau dropped that demand after paying a contractor to crack the phone.

Sean Lyngaas

Written by Sean Lyngaas

Sean Lyngaas is CyberScoop’s Senior Reporter covering the Department of Homeland Security and Congress. He was previously a freelance journalist in West Africa, where he covered everything from a presidential election in Ghana to military mutinies in Ivory Coast for The New York Times. Lyngaas’ reporting also has appeared in The Washington Post, The Economist and the BBC, among other outlets. His investigation of cybersecurity issues in the nuclear sector, backed by a grant from the Pulitzer Center on Crisis Reporting, won plaudits from industrial security experts. He was previously a reporter with Federal Computer Week and, before that, with Smart Grid Today. Sean earned a B.A. in public policy from Duke University and an M.A. in International Relations from The Fletcher School of Law and Diplomacy at Tufts University.

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