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#Encrochat: The Admissibility of Material Obtained from the Encrypted Messaging Service EncroChat

The infiltration by police investigators of the EncroChat messaging service, dubbed the “Crime Chat Network” by major media outlets, has so far led to over 800 arrests and multiple prosecutions across Europe.

This has included members of Organised Crime Groups (OCGs) engaged in serious and significant criminal offending. Encrypted digital data platforms are legal and there can be genuine and legitimate motivations for their use however, the potential benefits of encrypted platforms for organised crime have not gone unnoticed by OCGs and criminal enforcement agencies.

One such platform was EncroChat. The EncroChat system utilised software on Android handsets allowing users to engage directly in encrypted communication with other EncroChat users through a unique identifier or “handle”.

According to Europol, by “early 2020, EncroChat was one of the largest providers of encrypted digital communication with a very high share of users presumably engaged in criminal activity.”

The present case arose from the infiltration of the EncroChat system, and the subsequent gathering of material on the platform by French and Dutch law enforcement agencies. At some point in 2019 French authorities developed the capability to infiltrate the EncroChat system under ‘Operation Emma’, described in the judgment as follows:

… the EncroChat servers were in France and the French Gendarmerie had discovered a way to send an implant to all EncroChat devices in the world under cover of an apparent update. That implant caused the device to transmit to the French police all the data held on it. This was called the Stage 1 process …. Thereafter, in the Stage 2 process, the implant collected messages which were created after Stage 1. The Stage 2 collections occurred after what was called “the infection”, which was the point at which the implant first arrived on the device and executed Stage 1. (at [12]).



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