Facebook’s encryption fight will be harder than San Bernardino

Facebook is caught in a secret legal fight with the FBI. The fight, which centers on an alleged MS-13 gang member in Fresno (CA), has been kept out of public court records, but Reuters broke the story on Aug 17. Apparently, prosecutors are looking to listen in on all Messenger voice calls from the target, similar to a conventional phone wiretap. Facebook says it’s impossible to comply because of the service’s end-to-end encryption, and the company is risking contempt charges to prove it.

There are crucial differences in this new case [and the Apple/San Bernadino case], and most of them are unfavorable to Facebook. While San Bernardino used a novel legal argument against a hardened device, Facebook’s case uses a well-tested legal procedure against a protocol that wasn’t built with this attack in mind. Not all encryption is the same, and every indication is that Facebook’s Messenger encryption simply wasn’t designed to maintain privacy in the face of a court-compelled wiretap. As a result, Facebook is facing a much tougher legal fight with a much less predictable result. Also, Apple had a number of important advantages that Facebook won’t have. Most importantly, Apple simply didn’t have the information the FBI was looking for.