This is a quick comment on the Court of Appeal's judgment in the case of A and Ors, R v, relating to EncroChat. EncroChat cases have been a talking point in criminal law since the famously secure network was compromised on a large scale in June 2020 by French and Section 102. They also questioned the validity of the Targeted Equipment Interference (TEI) warrant used by the UK, arguing that the UK had made a request for assistance from the French in connection with the interception of communications when there was no mutual assistance warrant authorising the making of that request. Admissibility of EncroChat evidence in criminal proceedings This is very much a side issue, but it is a bit of a head-scratcher. The Berlin Regional Court ruled that data obtained in a joint operation by the French and the Dutch to harvest millions of text messages from EncroChat users was in breach of German law. I make no comment on those. No, the European Commission is not compelling online service providers to monitor communications. Read Alexandra's first article here on The hacking of Encrochat and the admissibility of evidence in legal proceedings. That is an obvious error of language and analysis.. They are rightly required to operate within the law. French police began preliminary investigations into EncroChat in 2016 and 2017 after recovering a number of EncroChat phones in the possession of drug traffickers. Therefore, the only billing available to UK law enforcement was mobile data. Having decided the question which it needed to answer, the court proceeded to lay out its reasoning. I wonder if a UK authority would have been afforded the same treatment, or whether a court would subject them to greater scrutiny. If you have been accused of acriminal offence, contact us now at Ashmans Solicitors. endstream endobj 284 0 obj <>/Filter/FlateDecode/Index[25 226]/Length 30/Size 251/Type/XRef/W[1 1 1]>>stream A three year operation by the French and Dutch police and courts, codenamed Operation Emma, resulted in the French imaging an EncroChat server in Roubaix and finding a way to man-in-the-middle traffic passing across the EncroChat network by deploying malware to it, as reported this summer. In the UK there are strict rules about the admissibility of intercepted communication. the packets are in the element's memory)? Encrochat: Secret network messages can Had the judicial review succeeded the whole of the EncroChat evidence could have been ruled inadmissible in criminal trials across England and Wales, ruining prosecutors hopes of relying on it and potentially tightening the law on speculative dragnet surveillance by police agencies to boot. DX 23352 Dewsbury, SRA N: 620496 London Branch, In the meantime, if you have any further queries, get in touch at 03330096275 or email us on enquiries@ashmanssolicitors.com. Immediately after the data breach, questions were raised over how the evidence was obtained. The Stage 2 collections occurred after what was called "the infection", which was the point at which the implant first arrived on the device and executed Stage 1. The case reached the House of Lords (HoL). Specialists at C3N collected the messages and passed them on to Europol, which packaged them up according to country of origin and shared them with police forces in Germany, the UK and other countries. German law does not allow for surveillance of telecommunications to establish the suspicion of a crime. Given the facts as applied by the Court, and the Court's ruling on the point of law, this is an expected outcome. Data in a type of communication such as a mobile call typically spends 99.9% of its transmission time at rest in some format, in hundreds of memory storage locations, in dozens of en-route devices, he said. For more info and to customize your settings, hit The Berlin public prosecutor said in an announcement on Twitter This contrasts with most other countries, including France and the Netherlands, which routinely permit the use of intercept material in court. However, it does represent asignificant hurdle and will require your defence team toconsider the best strategy going forward. Do Not Sell or Share My Personal Information, Datacentre backup power and power distribution, Secure Coding and Application Programming, Data Breach Incident Management and Recovery, Compliance Regulation and Standard Requirements, Telecoms networks and broadband communications, some people have and will continue to play the system, will have consequences that go beyond transatlantic data transfers, novel risks to data privacy, protection and governance, Government is playing psychic war in battle over end-to-end encryption, AWS suffers year-on-year drop in profit and revenue growth as enterprises curb cloud spend, More Post Office software-related convictions overturned takes total to 86, Auto-tech series - Alibaba Cloud: How cloud automation builds better connections. Ultimately Dove J ruled that the EncroChat evidence WAS admissible and parties went off to the Court of Appeal. It stated, at paragraph 63, that: the communications were extracted directly from the handset of the user and not while they were travelling to, through or from any other part of the system. The defendants in this case had conversations with X that were recorded. EncroChats ultimate USP was that it guaranteed anonymity for its customers. EncroChat, according to the National Crime Agency (NCA), was used exclusively by criminals. A TEI warrant does not authorise in relation to a communication other than a stored communication conduct which would (unless done with lawful authority) constitute the offence of unlawful interception (s99(6)). The purpose of this provision, the Court said, was to "extend the types of storage which amount to being in "the course of transmission" so as to catch communications which are "stored" for the purposes of [the s3 offence]". However, the Investigatory Powers Act 2016 known as the Snoopers Charter also allows communications obtained from mobile phones and computer equipment to be used in evidence, if they are obtained by equipment interference equivalent to hacking a computer. The gist of the issue before the Court of Appeal here was whether, in acquiring communications from the compromised Encrochat devices by way of the implant inserted by the French agency, the UK's National Crime Agency accessed communications which were "being transmitted", or which were "stored in or by the telecommunication system". The defendants argued their appeals on the basis that although the intercept evidence was properly obtained in accordance with the Convention and law of country A, its use in an English trial would be contrary to the police of English law[7]and to the Convention. And if the scope of a TEI warrant is as broad as this suggests, then it opens the door to interception by a broader range of organisations: TI warrantry is limited to intercepting authorities, but TEI warrants are available more broadly (see ss102-106 Investigatory Powers Act 2016). This was called the Stage 1 process. If it appears that an operation led by an overseas authority receives a lesser standard of judicial scrutiny and I do stress the if here perhaps there will be more multi-national operations, where the "hard part" is done by the overseas authority. [3]A system in the UK that facilitates the transmission of communications by any means involving the use of electrical or electromagnetic energy. Last year, its users received amessage tosay that their data was no longer secure. It was deemed significant that Holland subscribes to the European Convention on Human Rights and it was presumed that Dutch law meets the requirements of both Article 8 and 13 of that convention. However, EncroChat cases remain complex and fact-specific, and the impact of the judgment in Murray & Others is likely to be felt differently by different defendants. Not all acts of interception amount to the offence of "unlawful interception". While there is plenty to unsettle civil liberties activists in the EncroChat saga to date, there have also been guilty pleas by serious criminals faced with EncroChat-derived evidence of their crimes something that tends to show the NCA was bang on the money when it sidelined legal process in favour of getting wronguns banged up for many years. Photographs Laura Pannack and Laurie Lewis. Artificial intelligence (AI), data and criminal justice, to question the legality of evidence obtained from the EncroChat, previously denounced the lack of transparency and oversight, prosecutors must disclose how messages were obtained from the Sky ECC infiltration. The outcome is that, if conduct is "interception", a person does it with lawful authority, and does not commit an offence of unlawful interception, if they have a TI warrant or, if the communication is a "stored communication", they have a TEI warrant. That is so however quickly after transmission the obtaining of the copy takes place, or even if the copy is extracted while the original encrypted communication is being transmitted. Some devices are even set to automatically wipe if not used in a 24-hour period. The implant, supplied by French intelligence agency DGSE, initially harvested historic data from the phones memory, including stored chat messages, address books, notes and each phones unique IMEI number. (b) the effect of the relevant act is to make any content of the communication available, at a relevant time, to a person who is not the sender or intended recipient of the communication. I've thought a lot about the interaction of TI and TEI, starting in the days of the draft Investigatory Powers bill. The hacking of EncroChat and the admissibility of evidence in legal proceedings ALEXANDRA WILSON The hacking of Encrochat, one of the worlds most The Court's decision in terms of "storage" is interesting, and deserving of more thought. In exchange for around 1,000 users were provided with a specially modified Android handset. It all comes down tothe facts of your case. Applications for adjournments on the basis that something may turn up will not prosper.. What remains on the device is not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a "draft". Well, sorry, it's the law. Section 106. The German federal government is actively encouraging the use of cryptography, through its digital agenda, and has been reluctant to oblige telecoms and internet companies to implement back doors. The court was at pains to point out that the limitations on storage under RIPA 2000, and which formed the basis of the Coulson decision, do not apply to the concept of "storage" under the IPA. In January 2020, a court in Lille authorised the installation of a software implant that targeted BQ Aquaris X2 Android phones used by more than 32,000 EncroChat users in 122 countries. (If the two could not co-exist, it strikes me that an answer of "yes" to the first limb must entail a "no" to the second limb, which the Court here refuted.). 0000040306 00000 n The court found that the French had not provided information on how they had intercepted data from the EncroChat handsets, and that French authorities were unwilling to provide further information. 0000011454 00000 n Encrypted phones cases quantity of drugs Encrochat (i) is carried out in accordance with a targeted equipment interference warrant under Part 5 (I have removed the bits about "other forms of lawful interception", and the bits about bulk powers or court orders or other statutory powers, since they are not relevant here.). If so, that would appear to limit the requirement for an interception warrant to interception where there is no stored copy available for example, interception on a bearer itself (such as the interception of a radio transmission). This includes providing all the necessary information, including a description of the interception operation to assess whether the interception would be authorised under German law, and whether the material can be used in legal proceedings. Your Consent Options link on the site's footer. [5]Interception-related conduct is defined as: conduct bya person* that is, or in the absence of any lawful authority would be, an offence of unlawful interception, a breach of the restriction on requesting interception by overseas authorities, a breach of the restriction on requesting assistance under mutual assistance agreements, the making of an application by any person for a warrant, or the issue of a warrant under Chapter 1, the imposition of any requirement on any person to provide assistance in giving effect to a targeted interception warrant or mutual assistance warrant, any person who is an intercepting authority, any person holding office under the Crown, any person deemed to be the proper officer of Revenue and Customs, any person employed by, or for the purposes of, a police force, any postal operator or telecommunications operator, any person employed or engaged for the purposes of the business of a postal operator or telecommunications operator. That malware consisted of an update to EncroChat handsets pushed by the compromised server, causing affected devices to upload an image of the devices entire contents back to the French police. The main focus of the early stages of its reasoning paragraphs 55 to 64 is to deal with the contention that the concept of "storage" is limited, and especially whether it is limited to storage "in a manner which enables the intended recipient to collect it or otherwise have access to it" (being the wording under RIPA 2000). This is essential to uphold the rule of law and ensure the right to a fair trial. (See CPD 5B.4 together with 5B.12 and 5B.13: PDF.). Encrochat claimed that their 251 0 obj <> endobj Did you find this post interesting? Europol There are worries that hacked communications may be used in criminal proceedings. The court today has given the green light for this new kind of hacked material to be used in evidence, concluding material obtained using such means wasnt intercepted. This information was shared with police authorities across Europe, including UK law enforcement agencies. The main argument of the conviction appeal was that the case should have been adjourned pending the outcome of the IPT proceedings, or to allow the expert findings from those proceedings to be heard one way or another. R v Murray & Others no more admissibility adjournments for EncroChat defendants? In doing so it resurrects an age-old public suspicion that used to be directed at GCHQ and the American NSA: both agencies were banned from spying on their own turf but, until the Snowden revelations, there was nothing to stop them agreeing to spy on each others citizens (turning a blind eye to foreign state espionage on home turf) and then sharing the results evading laws intended to keep them in check by outsourcing the banned conduct to a foreign agency outside the jurisdiction. Under UK law, intercepted communications can only be obtained if the authorities have aTargeted Equipment Interception warrant. Making that point clear, the judges continued: The Directive was devised to facilitate the sharing of material relating to criminal activity to enhance the efficiency of the enforcement of law and order on a cross-boundary basis between participating States. Devices that supported EncroChat had hardware and software modifications, for example, the camera, microphone, GPS and USB data ports were removed. Third, the Court looked at the difference in language between RIPA 2000 and the IPA: Section 2(7) of the 2000 Act makes it clear, among other things, that the storage which it describes can be occurring at the same time as the communication is "being transmitted". Copyright 2000 - 2023, TechTarget EncroChat, targeted equipment interference, and the Court of If so, then any evidence collated bylaw enforcement agencies would be inadmissible in court. If the Dutch authorities carried out the relevant act, the hacking, then the interception evidence isnotautomatically inadmissible under UK law. But these network environments have VPNs use different protocols and encryption to protect data and prevent unauthorized users from accessing company resources. ID 614570. There's an interesting, if obiter, comment as to whether a mobile handset forms part of the "public telecommunications system". If you have been caught up in the EncroChat hack, please contact us for expert legal advice. The relevant act essentially amounts to hacking a device. The definition of "relevant act" did not arise (see s4(2); it includes "monitoring transmissions"), but "relevant time" received significant discussion. Judge Reinhard said: According to the information that has become known so far, it is to be assumed that there was no such request by the French state and no review by the competent Germany authority in this case.. EncroChat - the Court of Appeal Judgment - LinkedIn Prosecutors claim that EncroChat was used solely as a means for organised crime gangs to message each other securely and have used the contents of the messages to charge people with crimes involving drugs and gun-running among other things. Data was passed between countries through Europol with no scrutiny of its reliability or legality. Encrochat 0000027253 00000 n Lord Burnett, issuing the Court of Appeals judgment, noted that the conviction applications largely sought in a variety of ways to challenge the admissibility of the EncroChat evidence. Do Not Sell or Share My Personal Information, Datacentre backup power and power distribution, Secure Coding and Application Programming, Data Breach Incident Management and Recovery, Compliance Regulation and Standard Requirements, Telecoms networks and broadband communications, joint operation by the French and the Dutch, communication from the European Commission, investigators had access to a master encryption key, formidable arguments against the lawfulness, could overturn criminal prosecutions in the UK, Cops take out encrypted comms to disrupt organised crime, Appeal court finds digital phone tapping admissible in criminal trials, Belgian police raid 200 premises in drug operation linked to breach of encrypted phone network, Arrest warrants issued for Canadians behind Sky ECC cryptophone network used by organised crime, Judges refuse EncroChat defendants appeal to Supreme Court, UK courts face evidence black hole over police EncroChat mass hacking, French investigators have refused to disclose, Government is playing psychic war in battle over end-to-end encryption, AWS suffers year-on-year drop in profit and revenue growth as enterprises curb cloud spend, More Post Office software-related convictions overturned takes total to 86, Auto-tech series - Alibaba Cloud: How cloud automation builds better connections. In the alternative, it was argued that the judge should have excluded the EncroChat evidence under s78 of PACE. The judges continued, in their published judgment: It is pointed out that there is nothing in either the [EU] Directive [establishing the EIO] or the Regulations requiring the evidence subject to the EIO to be in the possession of the executing State at the time when the EIO is issued and, therefore, the claimant's complaint, based on the fact that the material relevant to investigations was not in the possession of the French authorities at the time that the EIO was issued, is untenable.. I can see why it reached it, and also the potential for an appeal, and for a superior court to reach a different decision.).
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