SAN FRANCISCO, CA - FEBRUARY 19:  The Facebook and WhatsApp app icons are displayed on an iPhone on February 19, 2014 in San Francisco City. Facebook Inc. announced that it will purchase smartphone-messaging app company WhatsApp Inc. for $19 billion in cash and stock.  (Photo illustration by Justin Sullivan/Getty Images)

WhatsApp Encryption Case Signals the Future of Wiretapping: Report

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US Justice Department officials are privately debating whether to pursue court action against WhatsApp to gain access to content protected by end-to-end encryption, the New York Times reports. A judge has issued a wiretap order in a sealed investigation, according to the Times’ anonymous sources, but investigators are unable to collect any useable information, setting up a possible follow-on order forcing the company to break its encryption, and setting a precedent that investigators told the Times “goes to the heart of the future of wiretapping.”

Sources told the Times’ Matt Apuzzo that the sealed investigation is not terror-related, but both the Justice Department and WhatsApp declined to comment. In a similar case in Brazil Facebook vice president Diego Dzodan was recently arrested for the failure of WhatsApp to provide messages from a user account as requested by a judge.

The Electronic Frontier Foundation responded with a blog post outlining the legal issues and criteria involved, and saying “The fact that the government is even considering such an action proves that our worst fears were right.” The EFF says the WhatsApp order may be the next front in what it calls “the FBI’s war against encryption.”

Read more: What Obama Thinks of Privacy vs. Security in the Age of Apple vs. FBI

The first front in that war is the infamous iPhone in the San Bernadino shooting case, according to the EFF. Lavabit founder Ladar Levison told ZDNet Monday that he sees parallels between the government’s approach to gaining access to the iPhone and its approach in gaining access to Edward Snowden’s email account. That culminated in Levison shutting Lavabit down rather than provide the FBI with its encryption keys.

“The F.B.I. and the Justice Department are just choosing the exact circumstance to pick the fight that looks the best for them,” Peter Eckersley, the chief computer scientist at the EFF, told the Times. “They’re waiting for the case that makes the demand look reasonable.”

WhatsApp began rolling out end-to-end encryption based on Open Whisper Systems, which was developed with the help of $2.2 million in government funding through the Open Technology Fund.

Draft legislation to improve law enforcement’s tools to compel companies to provide unencrypted data by US Senators Richard Burr and Diane Feinstein, the top Republican and Democrat on the Senate Intelligence Committee, is expected to circulate this week, Reuters reports. A legislative update of wiretapping laws is long overdue, but any changes will likely go through the courts, whether before, after, or in the absence of successfully enacted laws.

Burr and Feinstein also co-sponsored the Cybersecurity Information Sharing Act, which easily passed through the Senate despite industry opposition and was signed into law by President Obama in December. Obama’s National Cybersecurity Action Plan includes a partnership with Facebook and other “leading technology firms” under the National Cyber Security Alliance, and Obama expressed the view that privacy and security could be balanced by co-operation between the government and the private sector last week.

Strong end-to-end encryption is significant to the messaging service’s pitch to business users, which was announced in January. If a compromise which maintains the integrity WhatsApp’s encryption is not found, encrypted messaging would remain available to end-users regardless of any precedent set in US law, according to a Harvard researcher.

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