In August 2018 Patently Apple posted a report titled "The Government Filed a Motion to Hold Facebook in Contempt of Court for Refusing to carry out a Surveillance Request." The U.S. government tried to force Facebook to secretly recode its Messenger app to allow the feds to listen into an encrypted, real-time voice call on suspected members associated with the notorious MS-13 gang. Facebook declined, and the feds pushed the court to hold the company in contempt. While the case collapsed, details of the case remain under seal and out of the public eye.

Fast forwarding to the present, Reuters reported yesterday that "a U.S. Judge on Monday rejected a bid by two civil rights groups that had sought to force the release of documents describing a secret U.S. government effort to compel Facebook Inc. to decrypt voice conversations between users on its Messenger app.

U.S. District Judge Lawrence O’Neill in Fresno ruled that the documents described sensitive law enforcement techniques and releasing a redacted version would be impossible.

"The materials at issue in this case concern techniques that, if disclosed publicly, would compromise law enforcement efforts in many, if not all, future wiretap investigations," O’Neill wrote, adding that the underlying criminal case was still ongoing.

U.S. telecommunications companies are required to give police access to calls under federal law, but many apps that rely solely on internet infrastructure are exempt. Facebook contended Messenger was covered by that exemption, sources told Reuters.

Public court filings in the Fresno case showed the government was intercepting all ordinary phone calls and Messenger texts between the accused gang members.

An FBI affidavit cited three Messenger calls that investigators were unable to hear. The participants in those calls were arrested anyway. You could read more about this report here.

Of course the war between law and enforcement and Silicon Valley is bound to continue to take away "exemptions" for online apps.

Yesterday Bloomberg posted a report titled "India Seeks Access to Private Messages in WhatsApp Crackdown.

The argument that telecom companies must comply with wiretaps shouldn't be exempt for online apps in the U.S. is now being echoed in India.

Gopalakrishnan S., a senior official in the Ministry of Electronics and Information Technology known as MEITY told Bloomberg in a phone interview that they don't care about petty privacy matters but rather "traceability to prevent or detect crimes." “If telecom companies like Airtel, Jio and BSNL are mandated to maintain call records, why should WhatsApp get a different rule?"

Gopalakrishnan has been asking Facebook for six months or more to bring more accountability to their platform. He noted that "pedophiles can go about on WhatsApp fully secure that they won’t get caught. It is absolutely evil."

While Facebook tried to sound all concerned about the matter, they claimed that 250,000 accounts are banned each month for sharing child sex abuse and vile content. On the other side of this, Facebook is planning to double down and adding default encryption to users' chats on Messenger so that not even Facebook could see what is being said or exchanged, killing their own concern over pedophile activity.

India is the next great emerging market for technology companies. Its online population, just 71 million people a decade ago, is already 480 million and is projected to grow to 737 million by 2022, according to Forrester Research Inc. That has led to heavy investment by American technology leaders, from Amazon to Facebook, Twitter and Microsoft. Yet the latest episode shows that India’s government is charting its own, at times unpredictable, path in regulating the market.

His ministry is meanwhile drafting what are called the 'Intermediary Guidelines,' which would make online platforms like WhatsApp responsible for the content their users share. Such regulations would also affect Facebook, Twitter and popular Chinese apps such as Bytedance Ltd.’s TikTok. A draft published on the MEITY website suggests holding such services responsible for a broad range of content, including information found to be “blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.”

If the draft rules come into force, WhatsApp and others will have to make messages traceable, remove objectionable content within 24 hours, and cooperate with government agencies investigating offenses.

WhatsApp hasn’t agreed to break its encryption in any market, but it’s under increasing pressure from governments to censor content and provide details of private communications. In Australia, for instance, legislation would allow the government to ask technology companies to access encrypted communication including photographs and messages in the interest of national security, law enforcement or even road safety. For more on this, read the full Bloomberg report here.

In late December Australia was the first Government to pass an anti-encryption law which may or may not start a wave of actions from governments around the world to force Silicon Valley and other foreign app developers to fall into line with laws already on the books that force telecom companies to comply with wiretap requests with a court order. There should be no exemptions for online apps.

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