How Did Facebook Beat a Federal Wiretap Demand?

This is interesting:

Facebook Inc. in 2018 beat back federal prosecutors seeking to wiretap its encrypted Messenger app. Now the American Civil Liberties Union is seeking to find out how.

The entire proceeding was confidential, with only the result leaking to the press. Lawyers for the ACLU and the Washington Post on Tuesday asked a San Francisco-based federal court of appeals to unseal the judge’s decision, arguing the public has a right to know how the law is being applied, particularly in the area of privacy.


The Facebook case stems from a federal investigation of members of the violent MS-13 criminal gang. Prosecutors tried to hold Facebook in contempt after the company refused to help investigators wiretap its Messenger app, but the judge ruled against them. If the decision is unsealed, other tech companies will likely try to use its reasoning to ward off similar government requests in the future.

Here’s the 2018 story. Slashdot thread.

Posted on April 29, 2020 at 12:29 PM13 Comments


Reporter April 29, 2020 1:18 PM

The three judges in this case didn’t tip their hand at the hearing conducted by video conference and said they would rule at a later date. Also an <a href=”>Delhi magazine stated that in the past the company also have defeated class-action lawsuits accusing the companies of civil wiretapping allegations connected to advertising practices.

Untitled April 29, 2020 1:37 PM

Presumably the feds also can’t wiretap Whatsapp video calls, since those are also (supposed to be) encrypted – and, by the way, Whatsapp is owned by Facebook. Calls on Apple’s Facetime are (supposed to be) encrypted too, so the same principle ought to apply there.

Wilhelm Tell April 29, 2020 1:58 PM

For me the case is simple: Facebook gave all the information asked but made a deal of reverse court decision. This was brought about by a bunch of money to participants.

This way Face kept its “face” of holding consumer’s rights and the same time allows any data flow to the authorities. — Btw. Has there been any such court cases after that: No. They are not needed because the pipe is open!

Clive Robinson April 29, 2020 3:09 PM

I’m reminded of the FBI/DoJ against Apple. They tried to use an ancient piece of legislation badly, only it ended up in open court because the FBI/DoJ psychos wanted to humiliate the biggest mobile phone company in America publicaly for two obvious reasons,

1, To get a favourable piece of case law they could use again.

2, To frighten every other Silicon valley company into compliance.

But the psychos misjudged what the Apple CEO was going to do and just how much anti FBI/DoJ ground swell it created. They tried to double down and court public opinion but it failed because their “Think of the Children” type FUD was so obviously false it actually increased opposition against them.

Then the magistrate started to give distinct idicators that the FBI/DoJ were not going to get the judgment they wanted. So the FBI/DoJ bailed out to plan D or what ever to avoide getting an adverse piece of case law, and give them an opportunity to try it again at a more favourable time.

The FBI/DoJ psychos are still after a “big win” to put Silicon Valley “in it’s propper place” in their view and to “make a statment” but they are apparently still misjudging things badly.

I just wish some one would wake up and fire a few people in the FBI/DoJ for this sort of behaviour so they get the message they can not go “tilting at windmills, on the US tax payer dollar”. Otherwise this sort of nonsense will just keep happening over and over running up huge expenses untill they get what they want but do not in any way deserve in a democratic system.

Mailman April 29, 2020 3:37 PM

Why wouldn’t Facebook just come forward and explain how they argued their case? Why does this require a request to the court?

Ángel April 29, 2020 8:58 PM

The important piece from the 2018 article is that the app itself didn’t encrypt end to end, so it wouldn’t require an app upgrade (that was convenient since “FBI can now snoop on your calls” doesn’t look good on a Changelog entry ☺).

However, I guess the basic rationale was similar to the Cupertino case. If Facebook had a system implemented for listening into end-users calls, they could require to use that. But if there isn’t such system, that means that they would need FaceBook would need to backdoor their server just for FBI, which can be argued to require that those calls would need to be routed specially, rather than going through any of the thousands of servers, on 15 datacenters¹

Also related to remember that were no warranty canaries involved, as Apples stopped issuing them in 2014²


Sheilagh Wong April 29, 2020 10:00 PM

What’s App is end-to-end encrypted using strong encryption algorithms. This means that, regardless of government violence, Facebook cannot decrypt user messages. Mark Zukerberg has got a such as honest face that we all believe him when he says What’s App is end-to-end encrypted. Presumably both sides would know this, so why would the Federal Government bother?

What’s App is not open source. No user can see the code, not that gangsters such as these are likely to read code. Add to the mix that phone apps, such as Facebook, are updated automatically whether the user wants it or not. What the feds likely pressured Facebook to do is send an trojan horse “update” to specific phones, so that messages can be read. These deciphered messages would not be used as evidence themselves, but instead tell the Feds where to look. The same way the British used Ultra during the Second World War. There was always an reconnaissance aircraft that accidently happened upon an Axis operation, clearly seen by the Axis commanders, before any action. A task force appearing out of the blue would arouse suspicion of broken codes. Transporting contraband in a vehicle that has expired registration, worn tires, etc.? That’s why you were caught. Of the thousands of vehicles out there with expired plates they just happened to stop the one carrying contraband. How lucky.

Q April 30, 2020 12:25 AM

I think Sheilagh Wong has the right idea.

We have no control over the apps we are expected to trust 100%. If an update comes we are expected to eagerly install it “for security”. Although for who’s security we are not told, and whether it enhances or degrades security we are not told either. Google and/or Apple approved the app on our behalf, we have no say in the matter.

We are not permitted to write our own app under our own control. We would get blocked for “hacking”, or breaking the terms of service, or something.

So thanks MZ for your app. We trust you 100% of course, and believe everything you say without question.

Clive Robinson April 30, 2020 10:00 AM

@ Ángel, Sheilagh Wong, Q,

If Facebook had a system implemented for listening into end-users calls, they [the FBI] could require to use that. But if there isn’t such system, that means that they would need FaceBook to backdoor their server just for FBI

A point worth noting is that the FBI are a “Law Enforcment Organization” (LEO) and the NSA and CIA are “Intelligence Community” (IC).

The likes of LEOs need “message content” for their activities whilst the IC more often than not can learn as much if not more and faster from the fact messages are being sent, who the parties are and how frequently etc. This only requires to see the traffic packets not their contents using “Traffic Analysis”.

So the IC are probably not that fussed about “message plaintext” they are “proactive rather than reactive” so can after all attack the end point computer where the plain text is encrypted/decrypted and get the session key or master secret if required.

The LEO’s on the other hand are more often than not “reactive rather than proactive” and they are a lot less likely to attack an end point computer prefering to use the likes of CALEA access to traffic at the “exchange” or equivalent so as not to “tip a suspect off” during the evidence gathering phase.

Thus Facebook using “end do end” encryption does not overly worry about the encryption, ublike the LEO’s who are desperate for plain text that Facebook can not provide…

AnonCoward April 30, 2020 1:05 PM

At the risk of starting a conspiracy theory, is it possible that Facebook and the Feds cut a deal, with part of the agreement being to seal the case and report Facebook won? (Perhaps Facebook even won a small part of the case.)

I’m not a lawyer and don’t even play one on TV.

A dubious person April 30, 2020 7:44 PM

OGH has phrased the question in a very provocative way!

I suspect that one does not “beat” a federal wiretap demand. I’m particularly suspicious when the demand was issued against an entity with such an opportunistic and exploitative nature as FB.

To me, the most likely answer to this question is that FB happily coughed up the requested info, and probably even more, but demanded utter secrecy as a quid pro quo. I can’t think of anything done by either party in the last coons-age that suggests they’d be above such behavior. Of course this is just a guess on my part, and I’m interested to hear the end result of this inquiry.

@ Sheilagh Wong, and others who keep repeating the mantra “end-to-end”:

I don’t think that word means what you think it means. I’d like to pose you a pair of serious questions.

  1. What/where are the two “ends” Facebook is referring to when they describe WhatsApp as having “end-to-end encryption”?


  1. Who controls these “ends” (i.e., who gets to see what information goes in one and/or comes out the other)?

FB love to remind us that they “cannot” decrypt an encrypted text. But both the “ends” of a WhatsApp transmission live entirely inside the WhatsApp app (answer #1). It’s all FB code that takes the plaintext from the sender and hands it off to the (also FB) encryption code; and it’s again FB code that takes the recovered plaintext from the corresponding (again, also FB) decryption code, and renders it on the recipient’s screen (answer #2).

TL;DR: FB do not need to be able to crack the encryption: you already gave them all the plaintext.

Since everybody likes a physical-world analogy, I’ll take a stab at one that describes this situation a little better that the ones that FB etc. prefer us to use:

FB is touting WhatsApp as, essentially, a secure postal system, with the property that FB can’t “open” and read a letter in transit.

The way this system actually works is that the sender (a WhatsApp user) hands an unenclosed plaintext letter to a FB agent (the sender’s Whatsapp app). This agent takes the letter into a mysterious back room (the guts of the app), where the agent does (some things) to it, including putting it into a tamper-proof envelope, for secure transport to a second FB agent (the receiving WhatsApp user’s app). This second agent opens the tamper-proof envelope (again, this all happens in a mysterious back room), does yet more (some things) to the extracted letter, ultimately handing it to the recipient (the second WhatsApp user).

Note that both “ends” of the secure channel are entirely under the control of FB; they have access via their “agents” to the communication plaintext, both before and after the encryption. This gives FB at least two opportunities to cc: the plaintext (not just the metadata!) off to Bluffdale or wherever, with the two users being none the wiser. The encryption used in the middle can be as tough as you like, because it’s mostly just a diversion from the real threat (although it does probably guard the message against MitM exposure).

FB don’t need to push a trojan update to WhatsApp to get access. They already have access if they want it. And because all this communication data is a “Money On The Table” kind of thing, I have no confidence that FB has not always been doing this.

I think Clive R. does a much better job than I of describing the problem here, since he generally takes the extra step of including the computing platform itself in the threat domain (e.g., on an Android phone you need also be wary of Android itself, and any other bloatware/shovelware/trojan which has the ability to screen-scrape, keylog, or otherwise surveil you). In this case I don’t think it’s necessary to go that far; the fact that WhatsApp necessarily has the plaintext in the first place is sufficient for me. Clive’s wider viewpoint becomes critical when you need to think beyond the FB threat, or if you’re looking at an app like Signal that’s (presumably) controlled by a trustworthy party, but which makes the same narrow-minded claims of impenetrability.

veritas May 3, 2020 11:30 PM

oh come on guys

that some company claims to have end-to-end encrypted an app does not mean that it actually is end-to-end encrypted. I mean has anyone actually seen the source code and managed to verify that it works as claimed?

Also it was in some news in late 2019 (i.e. after the 2018 article shared by Bruce) that Facebook had to share messages with U.K. intelligence.

Like the article linked to below. If they are sharing with UK intelligence they are then also sharing with USA (because of that US-UK Anglo-American Worldpower thingy).

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