WhatsApp encryption said to thwart wiretap order: report

The Justice Department is discussing how to proceed with a criminal investigation in which investigators have been stymied by the encryption of the popular instant messaging service WhatsApp, The New York Times reports.

{mosads}The case is unfolding against the backdrop of the Justice Department’s public feud with Apple over the locked iPhone of one of the San Bernardino shooters.

Details of the WhatsApp case are unclear, but officials told the Times that it was not a terrorism case. They said that a federal judge approved a wiretap, but that investigators have been unable to move forward. No decisions have been made about how to proceed.

WhatsApp, which is owned by Facebook, allows users to send messages and make phone calls over the Internet. The company has been adding encryption to its product over the last year, making it impossible for the Justice Department to eavesdrop on communications — even with a valid court order.

The case differs slightly from the ongoing dispute over San Bernardino shooter Syed Rizwan Farook’s iPhone, in which the Justice Department is trying to force Apple to help it unlock the physical device to access the data contained therein. In the WhatsApp case, officials want to be able to read users’ communications that they intercept.

Some investigators believe that the WhatsApp case could set an even more impactful precedent than the Apple case, according to the Times, because it could determine the future of wiretapping — a centuries’ old tool of law enforcement.

While some argue that a judge should order WhatsApp to help investigators obtain the information they need in a readable format, others are hesitant to escalate the dispute given that some lawmakers are expected to introduce legislation to give law enforcement access to encrypted data as early as this week.

Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.) have been preparing a bill — in the works since last fall’s terror attacks in Paris and San Bernardino, Calif. — expected to force companies to comply with court orders seeking locked communications.

While lawmakers, such as Senate Armed Services Committee Chairman John McCain (R-Ariz.) and Sen. Tom Cotton (R-Ark.), have vocally backed the Burr-Feinstein efforts, a bipartisan contingent of lawmakers believe regulating encryption standards would not only weaken security, but also damage America’s economic competitiveness.

Tech companies and privacy advocates believe that stiff end-to-end encryption — in which only the sender and the recipient can read the information — is critical to keeping everyday users of the Internet safe from identity thieves and other cyber criminals.

“WhatsApp cannot provide information we do not have,” the company said this month when Brazilian authorities arrested a Facebook executive, after the company failed to turn over a WhatsApp messaging account requested by a judge in a drug trafficking investigation.

Technologists say WhatsApp’s push to add encryption to all one billion of its customer accounts is almost complete.