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Pro-encryption fight hindered as US appeals court refuses to unseal papers

The sucessful argument that allowed Facebook to reject a wiretap remains unavailable to be used as prescedent.

In 2018, a judge of the US District Court in Fresno, California ruled that federal and state prosecutors could not force Facebook to wiretap conversations of users of its Messenger app.

By doing that, Facebook would have broken the end-to-end encryption feature that it promises users – but investigators, who were after an international crime gang at the time, asked a lower court to order Facebook to carry out the act, based on the Wiretap Act, that is used to compel phone companies to spy on customers in order to assist the police.

The judge said that Facebook was not in contempt of court when it refused. But the judge never explained why exactly that was the case – and this is a big question to be answered, especially amid ongoing controversy over what tech companies are obligated to do.

If others knew what motivated the ruling that said Facebook didn’t have to comply, they would have a landmark judgment that would inform their own actions, i.e., let them know how far federal authorities could go in forcing them to spy on users.

The American Civil Liberties Union then tried to persuade the Eastern District of California court to unseal the ruling in the interest of the public, at a minimum providing information about the legal reasoning behind the original decision that went in Facebook’s favor – but this was rejected.

Now a federal court of appeals has also rejected the same request from a number of digital rights groups to unseal the ruling, citing “the stronger right to protect investigations.”

We obtained the filing for you to read here.

The Electronic Frontier Foundation and the American Civil Liberties Union were among those who asked for the judgment to be unsealed, as the public had the right to learn about the reasoning that absolved Facebook of responsibility as it would help other companies also be able to argue their case against government spying.

Reuters said that the US Justice Department is behind the decision to keep the ruling secret, while the appeals court announced that the document was also “unpublished” – in other words, can’t be used as a precedent in similar future cases.

Facebook is not alone in trying to fend off authorities who want it to break or backdoor its encryption, as Apple was involved in a similar “skirmish” with the FBI in 2016 in the San Bernardino case.

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