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Going Dark? Analysing the Impact of End-To-End Encryption on The Going dark? Analysing the impact of end-to-end encryption on the outcome of Dutch criminal court cases Pieter Hartel1 Rolf van Wegberg1 1{pieter.hartel,r.s.vanwegberg}@tudelft.nl April 15, 2021 Abstract Former US attorney general William Barr and law enforcement colleagues from other countries have published a statement on end-to-end encryption from which we quote: “while encryption is vital and privacy and cybersecurity must be protected, that should not come at the expense of wholly precluding law enforcement”. The main argument put forward by law enforcement is that end-to-end encryption (E2EE) hampers authorities prosecuting criminals who rely on encrypted communication - ranging from drug syndicates to child sexual abuse material (CSAM) platforms. This statement, however, is not supported by empirical evidence, and therefore not suitable as the sole basis of policymaking. That is why, in our work, we analyse public court data from the Netherlands to show to what extent law enforcement agencies and the public prosecution service are impacted by the use of E2EE in bringing cases to court and their outcome. Our results show that Dutch law enforcement appears to be as successful in prosecuting offenders who rely on encrypted communication as those who do not. In contrast to what the US attorney general wants us to believe, at least the prosecution of cases does not seem hampered by E2EE. 1 Introduction Article 19 of the Universal Declaration of Human Rights gives everyone the right to freedom of opinion and expression. Since 2011, this also covers the journalistic protection of sources [3]. UNESCO recently published two studies describing the influence of the Internet on Article 19. Both studies make recommendations for the use of End-to-End Encryption (E2EE) to protect the right to freedom of opinion and expression. The most important recommendation is that member states must ensure that concerns about national security and crime do not affect the source protection of journalists [11] and human rights [13]. Pretty-Good-Privacy (PGP) is one of arXiv:2104.06444v1 [cs.CR] 13 Apr 2021 the technologies that allows tipsters to pass confidential information to journalists. Most quality newspapers such as the NY Times, LA Times, Washington Post, Wall street journal, Guardian, and Financial Times use PGP to receive confidential tips. Only two out of the eight quality newspapers worldwide do not have a PGP key: The Times and the Chicago Tribune. However, every technology has a bright and a dark side [8]. For example, GPS was designed to guide missiles to their targets [5]. Civil use was a secondary objective, but now we would be lost without GPS-based navigation. Mobile phones meet one of the most basic human needs: the ability to communicate. But drug dealers and their customers also love their phones be- cause they no longer have to meet in a dark alley to avoid the police. PGP was the first widely used implementation of E2EE [15], and WhatsApp has been offering E2EE since April 2016 to over a billion users. PGP has helped human rights organizations and journalists to communi- cate in hostile environments. PGP has probably saved hundreds of lives in the Kosovo theatre Letters from human rights groups. But offenders use so-called PGP phones [10] to defeat lawful interception. A PGP phone is a relatively expensive product on which not only PGP is installed, 1 but from which also all non-essential hard and software have been removed [6]. So, all these technologies have two sides, but to what extent does the dark side have the upper hand? We probably agree that navigation with GPS and communication with a mobile phone has so many advantages that we accept the disadvantages. But do the advantages of E2EE also outweigh the disadvantages? Here, it is important to note that E2EE only works properly if it is correctly implemented in a trustworthy execution environment and if the private keys remain secret. However, this is more easily said than done. In recent law enforcement operations against providers of PGP phones such as Phantom Secure, IronChat, Ennetcom, Encrochat, and Sky ECC, the police have managed to obtain messages, whereas the companies claimed that this should be impossible. The police were legally allowed to take action against all of these service providers since there was a well-founded suspicion that these companies provided services to criminals. For example, Phantom Secure was a Canadian company that was infiltrated by FBI employees in 2018. Recorded conversations with Phantom Secure’s CEO led to a valid allegation that the company’s modified Blackberry phones were used for drug trafficking [6]. Offenders not only use PGP, but they also use WhatsApp, as exemplified by the following quotes from Dutch court judgments: • “The offender, together with another person, threatened [victim 1] and [victim 2] with death using WhatsApp messages” ECLI:NL:RBMNE:2018:4435. • “The fact that the offender sold these drugs came to light after four young adults became un- well from drugs they had bought after WhatsApp contact with a dealer” ECLI:NL:RBNNE:2018:5197. • “Suspect then sends 11 images to [person] via WhatsApp. These are all child pornographic images of [victim 2]” ECLI:NL:RBNHO:2018:10646. However, offenders use PGP and WhatsApp for different reasons. Most users probably know that WhatsApp offers E2EE, but they do not seem to care about it [1]. WhatsApp is a success because almost all the people you want to communicate with are already using it - i.e., the network effect. WhatsApp is easy to use, WhatsApp is free and even ad-free. PGP phones are an expensive niche product. The users buy such a device because the confidentiality of the messages they exchange with it is of vital importance to them. Specialised companies sell PGP phones and service subscriptions at premium prices. Offenders might use WhatsApp to communicate with clients or victims, but they would prefer a PGP-phone to communicate with co-offenders. In the Netherlands, several Ennetcom cases have now been concluded, and some of the court judgments have been made public as open data. To gain insight into the impact of E2EE on the outcome of Dutch criminal court cases, we will analyse these and other relevant court judgments. Our contribution is that we provide the evidence that is needed to help us understand if law enforcement is going dark due to E2EE [7]. 2 Background and research questions In the Netherlands, law enforcement has a wide range of special powers at their disposal, as described in Article 126 of the Code of Criminal Procedure. The application of these powers is subject to strict rules. In particular, special powers may only be used for serious offences, and permission from the examining magistrate is required. It should also be possible to check afterward whether the powers have been used correctly. These checks and balances are in place to ensure a fair trial. The technical special powers that are often used in cases where the offender tries to evade detection through technology are (1) reading out and analysing confiscated smartphones, (2) placing telephone or Internet taps, (3) obtaining cell tower data from a telecommunications operator to trace the location of a mobile phone, and (4) hacking the computer or another device of the offender. There are other special powers, such as a subpoena for financial data, systematic observation, and systematic gathering of information, but we will not consider these here because they are not technical in nature. We will describe in more detail the two often used special powers that suffer most from E2EE. 2 Reading out and analysing confiscated smartphones Most modern laptops and smart- phones have device encryption turned on by default. This means that data on devices seized by law enforcement can only be read out if the device owner supplies the passcode. Law enforcement has several options to unlock a seized smartphone with a passcode: • The owner may surrender the code to the police. This should not be done under duress be- cause, in most countries, the offender should not be obliged to cooperate with his conviction (Nemo tenetur) [10]. • In some countries, the police may force one to give up a fingerprint to unlock a smartphone [6]. • In some cases, special tools can bypass the passcode. For example, to crack the San Bernardino terrorist’s iPhone 5C, the FBI had to pay more than $ 1M to a specialist com- pany [4]. • With the permission of the examining magistrate, the police may install keylogger malware on a smartphone. The keylogger reports the passcode without the suspect knowing [2]. • Law enforcement does not deal with the smartphone directly, but with the company that manages the network that the smartphone uses to communicate. To the best of our knowledge, there are no statistics on cracking locked smartphones, except for some anecdotal evidence from the US [4]. Placing telephone or Internet taps Lawful interception allows authorised law enforcement agencies to obtain communication network data from individual subscribers. The signalling and network management information will be cleartext, for example, IP addresses. The contents of the data can be encrypted, for example, when HTTPS or E2EE is used. In almost all implementations of E2EE, devices communicate with each other through a server, which is also the Achilles heel of these systems. There are several options to eavesdrop on encrypted messages, such as: • If the implementation contains a bug, an exploit can be deployed to eavesdrop on the con- versation. This has happened to WhatsApp. • If the administrators of the server make mistakes, the server can be hacked. That has happened to Encrochat. • If the administrators of the server are issued a subpoena by the court to hand over data from specific customers, they will have to comply.
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