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The EncroChat police hacking sets a dangerous precedent

Automatically labelling people who use an encrypted chat ‘criminals’ threatens our fundamental right to privacy.

On July 2, the United Kingdom’s National Crime Agency (NCA) announced that after a cross-nation investigation, more than 800 people were arrested in several European countries for illicitly trading in drugs and guns. The operation was launched after the French police managed to intercept messages on EncroChat, an encrypted messaging platform operated on modified Android devices.

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There are many legitimate concerns that lawyers have already raised. First, there is a lack of transparency about how the French authorities gained access to the messages, and whether the correct legal procedures were followed to ensure the integrity of the evidence.

Because of the sensationalist press briefings, any jury in a future trial will almost certainly 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”.

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There is also the danger of “collateral intrusion”. There are lawyers who have used EncroChat 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. Information obtained in this way probably would not stand

These arrests have been celebrated by police forces internationally, and have been breathlessly reported by media outlets, which have been quick to label those arrested “criminals” and “iconic untouchables”. The due process and presumption of innocence that we expect in developed democracies appear to have been dispensed with in a quest for headlines, fuelled by savvy police PR departments.

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But while this operation provided for clickbait articles and boosted the public perception of “justice being done”, there are serious questions about both its effectiveness and ethics.

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