FBI's encryption fight with Facebook could have broad impact on smartphone users' privacy

The FBI is asking a federal judge in CA to force Facebook to break the encryption on its Messenger app so investigators can listen in on an alleged MS-13 gang member's voice conversations. The case, which remains under seal, raises some of the same privacy concerns as the FBI’s unsuccessful effort to force Apple to engineer a way into the encrypted iPhone of one of the San Bernardino (CA) mass shooters. But the FBI’s request in the Facebook case could have a broader impact, since the bureau reportedly wants to intercept communications in real time. Rather than seeking access to a smartphone they’ve already seized, investigators reportedly want Facebook to help them wiretap a suspect just like a phone company would. 

“It essentially applies to any smartphone user,” said John D. Villasenor, a professor of technology and public policy at the University of California at Los Angeles. “Most of us would be able to say our phones haven’t been in the custody of law enforcement, but we all use messaging platforms of one kind or another.”  “The Apple case, as important as it was, involved a physical device that the government already had possession of,” he said, “whereas the Facebook matter involves communications between users and the question of what obligations companies like Facebook have with respect to communication services they offer.” Experts agree that prosecutors are likely basing their case on a law called the Wiretap Act. Passed in 1968, it requires telephone companies to provide technical assistance to law enforcement in tapping a phone if they present a court order. A ruling in the government’s favor probably wouldn’t stop with Facebook Messenger, Villasenor said. The government might seek to compel other messaging services such as WhatsApp to help the government listen in on voice conversations.