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The #Ecrochat legal scandal: lack of information on the quality of the investigative procedure



In relation to the “quality of the law” requirements of the ECtHR, it could be considered that the French authorities allegedly ensured several safeguards.


The seriousness of organized crime offences and the fact that the Encrochat network was end-to-end encrypted could justify the interception as a last resort measure.


Official court documentation states that the French authorities obtained a judicial order to copy the server, judicial approvals for the use of a computer data interception device both on the server and on the terminal devices connected to this server and further judicial approval for redirection of all the data streams (DNS redirection) of the server in Roubaix. (OLG Hamburg, 2021, para 75)


The reported time limit for the data collection was two months (Eurojust-Europol, 2020).


However, the lack of information on the quality of the investigative procedure does not exclude possible irregularities and violation of Art.8 (2) ECHR. In particular, it remains unclear whether the French judicial interception on such a broad scale is in accordance with the law in the meaning of Art. 8 (2). The ECtHR in the Khan case stated that the principle of legal certainty requires matters of intrusive surveillance measures to be regulated by law, which idicates clearly the scope of the discretion of the competent authorities and the manner of its exercise, especially when the technology available for use is continually becoming more sophisticated.


This means that military guidelines and procedures are not appropriate basis for an operation like Encrochat. It is unknown what was the legal basis and time limit of the judicial warrants authorising the operation.


Since the investigation was conducted by military proceedings and protected under the national security exemption, it can be assumed that the judge had limited opportunity to scrutinize the operation. If the French judges were not informed, for example, about the risks of the hacking operation, why a specific method was preferred over others, or what its accuracy was, the obtained warrants may serve a purely administrative compliance.


At some point, the French NCA reported that 90% of the Encrochat users were using the service for criminal activity(Cox, 2020), and the NCA did not find any evidence of innocent suspects using it (Wright, 2020). Nevertheless, the Hamburgcourt reports that “32,477 users in 121 countries were affected by the data interception measure. Of these, 380 users were wholly or partially on French territory, of whom, according to the French authorities, at least 242 people - more than 60% - used the encrypted communication system for criminal purposes.” (OLG Hamburg, 2021) This means that up to 40% of the people affected may have used the service for legal purposes, such as to protect their privacy. It is not stated how much of the Encrochat-data obtained in other jurisdictions was related to innocent individuals.


There are no reports of whether and how the JIT authorities filtered out innocent people's messages after the initial data seizure. Such information is essential to evaluate how the investigative measure scope was limited, if it was in compliance with the presumption of innocence, and if effective remedies were taken to limit the impact of the PI and privacy infringements considering the broad scope of the interception.


Moreover, given the Encrochat software architecture it was technically impossible to craft the interception implant to be deployed only to specific phones for which reasonable suspicion existed and for which the LEA had information that they were involved in criminal activity, and not in bulk.


 

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