UK Home Secretary, Priti Patel, has teamed up with her US and Australian counterparts to criticise Facebook’s end-to-end encryption policy. End-to-end encryption allows users to have private conversations which only the participants can read.
In an open letter to the company, these Governments accused Facebook – which owns Facebook Messenger, WhatsApp, and Instagram – of preventing the effective investigation of crime, providing a safe space for alleged criminals, and hindering the future success of a new UK-US data sharing agreement.
The Bilateral Data Access Agreement, signed on 3 October 2019, is designed to speed up criminal investigations and extend police surveillance across borders. It will allow law enforcement in the UK to request the private information of suspects in criminal investigations directly from companies like Facebook and Google without having to submit a request via the Government. Now, instead of waiting 6 months to 2 years to access private information, the police will only have to wait weeks or even days.
However, Facebook states it does not intend to abandon plans to expand end-to-end encryption across its platforms or include a “back door” for law enforcement to access encrypted conversations. Priti Patel and her counterparts maintain this decision, “puts our citizens and societies at risk”.
What is end-to-end encryption?
End-to-end encryption is a secure form of communication where only you and the recipient of your private messages can read the content. No one else, including your internet service provider or the messaging platform themselves can read the messages. The police also cannot obtain the content of your conversations (short of directly opening them via your mobile phone or laptop) even if they request this information from the company which owns the messaging platform.
Is Facebook end-to-end encrypted?
Of the Facebook owned messaging platforms, only WhatsApp is currently end-to-end encrypted by default. You cannot turn off the encryption so, no matter what you write, law enforcement will never be able to access the content of your conversations.
Facebook Messenger is not encrypted by default. However, you can enable encryption using the Secret Conversations function.
Instagram conversations are currently not end-to-end encrypted. However, in March 2019, Mark Zuckerberg, the founder and CEO of Facebook, announced plans to extend encryption across all its platforms.
Do the police have powers to access your private social media data?
If the police suspect someone of committing a criminal offence, they will do everything possible to obtain sufficient evidence to prosecute them. Private social media information can provide significant evidence in a wide range of offences, including drugs offences, fraud, child sex offences, and organised crime.
Facebook’s policy is to cooperate with law enforcement if possible. Data published by the company for the period July to December 2018 reveals that in 91% of cases, Facebook released some private information where requested.
Under Facebook’s policies (which are broadly the same across WhatsApp, Messenger and Instagram), it will release private information where:
- It has received a legal request – As Facebook is an American company, the UK authorities can currently only request information using a Mutual Legal Assistance Treaty (MLAT) submitted via the Government. This process can be slow, taking from around 6 months to 2 years
- It has received an emergency request – where Facebook believes in good faith that there is a risk of serious injury or death or imminent harm to a child, it will release private information without an MLAT
With the introduction of the UK-US Bilateral Data Sharing Agreement, law enforcement agencies expect to be able to access the private data of suspects much faster. The Agreement will allow the police and other authorities to submit requests directly to Facebook rather than having to submit an MLAT request via the Government.
However, with Facebook’s plans to extend end-to-end encryption across its platforms, law enforcement agencies will still be unable to access a suspect’s private conversation data, no matter how serious the crime allegedly committed.
What information can the police access from Facebook?
Although no encrypted conversation data will not be released, the police may still be able to access substantial information such as:
- Your name and mobile number
- Who you’re speaking to and their contact details
- The times and durations of your conversations
- Data from web pages accessed via the app
- IP addresses
If the police have had access to your phone or other devices to search for information in relation to a criminal offence, it’s important to consult a skilled solicitor as soon as possible to discuss your legal rights as any of this information could be used as evidence in a criminal prosecution.
Is there any way the police can access end-to-end encrypted conversations?
The police can access encrypted conversation content is if they are able to directly open the messaging platform using a suspect’s mobile phone or laptop.
This often occurs where people are unaware of their rights to refuse the police access to their devices. For example, where they are arrested and pressured to hand over their phone security PIN or social media passwords.
In this situation, you do not need to comply with the police’s request. Even if they say you will be charged with a criminal offence, you do not need to answer their questions until you have received legal advice.
Similarly, if the police stop you on the street and ask to look at your phone or other devices, you do not have to agree apart from in very limited circumstances.
Get advice about the police’s powers to access your phone and social media accounts
At Conspiracy Solicitor, we are specialist criminal defence solicitors with years of experience advising clients in relation to police powers to search your phone and private social media information during stop and search, after arrest, and during criminal investigation.
Our priority is to protect your rights, especially your right to privacy in these cases, and we’ll take all possible steps to halt any criminal investigation before charges are brought against you.
If you would like further information about whether the police can access your private conversations and other personal information, please visit our page on Police Powers to Search your Phone and Social Media Accounts. You can also directly contact our criminal defence lawyers by giving us a call, filling in our online enquiry form, or requesting a call back.
We have an out of hours line and emergency police station advice line so you can reach us 24 hours a day, 365 days a year.