On July 2, the British National Crime Agency (NCA) announced that after cross-country investigations, more than 800 people were arrested in several European countries for illicit trafficking in drugs and weapons. The operation was launched after French police successfully intercepted a message on EncroChat, an encrypted message platform operated on a modified Android device.
These arrests have been celebrated by international police forces, and have been panting reportedly by the media, who quickly label those arrested by “criminals” and “touched icons”. The due process and presumption of innocence that we expect in developed democracies appear to have been eliminated in the search for headlines, which were triggered by intelligent police PR departments.
But while this operation provides clickbait articles and enhances public perceptions about “fairness being done”, there are serious questions about effectiveness and ethics.
There are many legitimate concerns raised by lawyers. First, there is a lack of transparency about how French authorities gain access to messages, and whether proper legal procedures are followed to ensure the integrity of evidence.
Because of the sensational press briefings, every jury in future trials will almost certainly be burdened by media coverage, not only of those who were arrested recently but anyone in the future found using encrypted devices.
The danger here is, for defendants who face trials where evidence is weak and methods are questionable, they may still be convicted because the jury hears “encrypted chatter” and thinks “criminal”.
There is also the danger of “collateral intrusion”. There are lawyers who use EncroChat to communicate with their clients. This means that the authorities have almost certainly seen privileged and confidential communication between suspects and their lawyers – maybe even lawyers who will represent them after this arrest. Information obtained in this way may not be received in court, but can still be detrimental to the investigation.
There are a number of real difficulties with this case, including in establishing that there is no misuse of the process when information is obtained and determining without a doubt that messages from certain telephones are indeed sent by certain individuals. In this case, it can be imagined that the authorities might get no more than headlines in most cases. Perhaps the headlines – as well as the seizure of that asset the benefits their own department – all they want.
Even more worrying is the implications for all of our civil liberties. Privacy is a human right – perhaps one of the most fundamental rights, and one that clearly distinguishes between advanced democracy on one side and authoritarian dictatorship on the other.
The fact that privacy will sometimes be abused by criminals is not a justification for being denied to most law-abiding ones. Reported to exist 60,000 EncroChat users are global, but only 800 of them were captured during the recent operation. Some users may be criminals, but many are business people, politicians, lawyers or just individuals who only want to use secure encrypted communication for various personal reasons.
That’s why, we have to find out especially about the statements made by Nikki Holland, director of investigations at NCA, warning that “If you have one of these devices, worry that we might come to you.”
Most people won’t worry, because they probably only heard about EncroChat yesterday. But what is the difference, in legal or ethical terms, between one encrypted chat application and another?
Many of us regularly use Signal, Telegram and WhatsApp, which is also an encrypted chat. Given the repeated telephone hacking scandal, our interest in privacy, especially if we share personal or commercially sensitive information, can certainly be understood. So how long does it take to use an encrypted messenger application to become a crime on its own?
We seem to be on a slippery slope to a place where anyone who enjoys his privacy is guilty until proven innocent, and where authorities in Europe will treat with suspicion anyone who chooses to communicate on a platform other than officially approved (and possibly the government -cause).
We might hope such behavior from China or Russia, but not England or France. To protect the public, European police forces must rely on thorough investigations and reliable evidence, not shadow hacking techniques and sensational headlines that erode justice and jeopardize our freedom.
The views expressed in this article are those of the author and do not necessarily reflect Al Jazeera’s editorial attitude.