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The fact that that privacy will sometimes be abused by criminals is not a justification for it to be refused to the vast majority who are law abiding
Abbas Nawrozzadeh is a criminal defence and investigations solicitor.
Last week, authorities announced that over 800 people were arrested across Europe and the world after the French and Dutch authorities intercepted messages on EncroChat, an encrypted messaging platform.
British police said they had smashed thousands of conspiracies ranging from drugs smuggling to murder plots after infiltrating encrypted messages in the wide-ranging operation.
These arrests have been celebrated by police forces internationally, and have been reported by media outlets describing EncroChat as a “criminal network”. The due process and presumption of innocence that we expect in developed democracies appears to have been dispensed with in a quest for headlines.
But this approach raises serious problems for both the effectiveness and ethics of these actions.
Their effectiveness will only be tested if and when these cases come to trial, but there are many legitimate concerns that lawyers have already raised.
There is a lack of transparency about how the French authorities gained access to the messages, and whether the correct procedures were followed to ensure the integrity of the evidence. Because of the sensationalist press briefings, there is a legitimate concern that a jury in a future trial could be prejudiced by the media coverage, not only against those arrested recently but anyone in the future found to be using encrypted devices.
The danger here is that, for a defendant facing a trial where the evidence is weak and methods questionable, they may still be convicted because a jury hears ‘encrypted chat’ and thinks ‘criminal’.
There is also the danger of ‘collateral intrusion’. There will be lawyers who have used Encrophones to communicate with their clients. This means that the authorities have almost certainly seen legally privileged and confidential communications between suspects and their lawyers - perhaps even the very lawyers who will be representing them after these arrests.
Given some of the evidential difficulties, it is conceivable that the authorities will get nothing more than headlines out of this in the majority of cases.
Even more worrying are the implications for all of our civil liberties. Privacy is a human right - perhaps one of the most fundamental rights, and the one that clearly distinguishes between developed democracies on the one hand and authoritarian dictatorships on the other.
The fact that that privacy will sometimes be abused by criminals is not a justification for it to be refused to the vast majority who are law abiding.
There are reported to be 60,000 Encrochat users across Europe, but only 800 or so arrests during the recent operations. Many users will be businesspeople, high net worth individuals, politicians or lawyers. It is likely some are criminals. This makes it very concerning that the Director of the UK’s National Crime Agency is warning that “If you have one of these devices, be very worried because we are probably coming for you”.
Most of the public will not be worried, since they may have only heard of these particular devices yesterday. But what is the difference, in legal or ethical terms, between one encrypted chat app and another? Almost all of us regularly use Whatsapp or Facebook Messenger, which are also encrypted chats.
In light of the phone hacking scandal, our attraction to privacy, especially if we are sharing personally or commercially sensitive information, is surely understandable. As well as legitimate users, those platforms, like Encrochat, are certainly sometimes used by criminals. How long until their use becomes almost a crime in its own right?
We appear to be on a slippery slope towards a place where anyone enjoying his or her privacy is guilty until proven innocent, and where authorities in Europe will treat with suspicion anyone who chooses to communicate on a platform other than the officially approved (and perhaps government issued) ones.
This is behaviour we might expect from China or Russia, but not Britain or France. To protect the public, Europe’s police forces should rely on thorough investigations and reliable evidence, not shadowy hacking techniques and sensationalist headlines which erode justice and endanger our freedoms.
Abbas Nawrozzadeh is a criminal defence and investigations solicitor based in the United Kingdom.
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