After infiltrating an encrypted phone network widely used by criminals (EncroChat), law enforcement authorities in Europe made headlines with high-profile arrests and seizures. Across Europe, defendants are now challenging evidence and convictions, claiming flawed investigations, violations of cross-border evidence-sharing rules and insufficient disclosure of evidence.
They argue that authorities violated their rights to a fair trial, effective remedy and privacy. This paper provides background on the EncroChat operations and an overview of the trends in French, German and UK jurisprudence, and calls attention to recent challenges before Europe's highest courts
EncroChat devices are modified mobile phones (e.g. with the camera, GPS and USB port removed) running two operating systems side-by-side, of which one enables secret and encrypted messaging and voice calls and another runs the inconspicuous native (usually Android) operating system. They were sold on a popular online trading platform for approximately €1 600, which included a six-month subscription with worldwide coverage. Back in 2017, the French Gendarmerie and judicial authorities began investigating such phones after repeatedly finding them connected to organised crime groups.
In December 2018 and October 2019, a French judge allowed authorities to copy data linked to the EncroChat domain from a server located in the French city of Roubaix. A partial decryption of obtained 'notes' showed that they were 'beyond doubt, linked to illegal activities, especially drug trafficking' (unofficial translation). On 30 January 2020 (and again on 12 February) a judge authorised the remote installation of an interception tool on end-user devices linked to the server.
The prosecution said that this was necessary to identify and arrest users implicated in illegal activities. After obtaining several other authorisations, authorities installed the interception tool, which is classified a national defence secret, on 1 April 2020. After France first shared data with the Netherlands, Eurojust facilitated the creation of a joint investigation team between the two countries and with the participation of Europol.
The operation was portrayed as 'an example of good practice' by the two supporting EU agencies and yielded key information for the identification, investigation and prosecution of criminal networks (infographic on procedure). A preliminary report from September 2021 is said to quote 6 700 arrests and 3 800 judicial proceedings. This number will likely need to be revised upwards in light of the many operations reported in Germany and the UK, and also in Spain, Italy, the Netherlands, Sweden and Belgium.
EncroChat operations and EU spyware cases both involve government(-backed) mobile phone infiltration. However, EU spyware allegations revolve around the instrumentalisation of commercial spyware against political rivals, while the issues at stake relate to criminal investigations.
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