Lawyers are heading to the French supreme court to challenge the legality of a police operation which intercepted millions of messages from the EncroChat encrypted phone network.
The lawyers applied for an immediate hearing in the Cour de Cassation in Paris after the court of appeal in Nancy declared, without giving immediate reasons, that the EncroChat operation was legal under French law.
The case, which is expected to go the European Court of Human Rights, could affect prosecutions in the UK, the Netherlands and Sweden if France’s highest court finds that the operation was unlawful.
Paris-based lawyers Robin Binsard and Guillame Martine, founders of law-firm Binsard Martine, claim that the interception operation against the phone network, which has caused widespread disruption to organised crime groups in Europe, breaches French law and the French Constitution.
The French Gendarmerie harvested more than 120 million messages from EncroChat phone users in multiple countries, in a novel interception operation that provided a rich source of intelligence and evidence on the activities of criminal groups.
Julie André, assistant to the national member for France at Eurojust, disclosed in May that the French desk at the European Union Agency for Criminal Justice Cooperation had received 250 European Investigation Orders (EIOs) requesting the use of the EncroChat data in judicial proceedings. She said the number was growing daily.
Binsard told Computer Weekly that the court of appeal in Nancy had yet to give any reasons for an oral finding that the EncroChat operation complied with French law, but that the case raised major questions for the supreme court.
“It is a very important case for French judges because the EncroChat hacking is the origin of hundreds of criminal proceedings,” he said. “It is a sensitive case that involves important legal arguments around defence secrecy, global hacking, and the difference between data capture and interception.”
Binsard and Martine are challenging the French Gendarmerie’s refusal to provide defendants with information on the hacking operation on the grounds of “defence secrecy”.
They argue that, for defendants to have a fair trial, the Gendarmarie should provide an explanation of how it obtained the intercept evidence from EncroChat phones, and provide a certificate to authenticate the intercepted data and messages.
The lawyers also argue that investigators at the French National Gendarmerie’s centre for the fight against digital crime went beyond the legal authority granted to them by judges in a court in Lille.
They argue that a number of orders issued by the Lille court breach article 706-1-2-3 of the French Code of Criminal Procedure and should therefore be declared null and void.
The disputed orders include one requiring the French cloud computing service provider OVH to modify its network to enable the interception to take place.
Gendarmes based at the C3N digital crime unit in Pointoise, along with Dutch investigators, traced the servers used by the EncroChat phone network to OVH’s flagship datacentre in Roubaix after recovering EncroChat phones during drug raids in late 2017 and 2018.
They were able to covertly take copies of the servers and upload a software implant that was able to bypass encryption of the supposedly secure phones in April 2020.
Forensic experts in the UK have argued that the French Gendarmerie’s refusal to release information on the hacking has led to an “evidential black hole” that has broken long-established principles that evidence should properly acquired and secured before being used in legal cases.
Binsard said he was not surprised that the court of appeal in Nancy had not found against EncroChat.
“It’s a very sensitive and maybe political case because the French Gendarmarie have spent a lot of time and a lot of money to do this hacking. So a judge has to be really courageous to cancel this hacking and to cancel hundreds of criminal procedures”
Robin Binsard, Binsard Martine
“It’s a very sensitive and maybe political case because the French Gendarmarie have spent a lot of time and a lot of money to do this hacking. So a judge has to be really courageous to cancel this hacking and to cancel hundreds of criminal procedures,” he said.
Binsard has applied for an expedited hearing in the supreme court, which, if accepted, would take place within six months. If not, it may take a year to hear the case.
Read more about EncroChat
- In a setback for police hacking operations, Berlin’s regional court has decided that intercepted data from the EncroChat phone network should not be used in criminal prosecutions.
- Swedish court overturns a ruling to convict a 23-year-old man accused of illegal firearm possession based on evidence obtained from the EncroChat hack, raising questions about its reliability in Swedish courts.
- Defence lawyers claim that investigators had access to a “master encryption key” that allowed them to decrypt millions of messages from the EncroChat encrypted phone network.
- French lawyers claim that investigators are unlawfully withholding details of a cryptophone hacking operation in a case that could impact UK prosecutions.
- Lord David Anderson QC warned prosecutors that there were formidable arguments against the lawfulness of a police operation to infiltrate the encrypted phone network, EncroChat.
- French lawyers are challenging the legality of a French police operation to harvest tens of thousands of messages from the EncroChat encrypted phone network in a move that could overturn criminal prosecutions in the UK.
- The Dutch Public Prosecution Service claims Britain has damaged confidence by disclosing details of an international investigation into the EncroChat encrypted phone network to the courts.
- Lawyers claim that public interest immunity certificates may have been used to withhold information on UK intelligence agencies’ ability to decrypt encrypted communications.
- Court hearings precipitated by police cracking the EncroChat secure mobile phone network have been delayed after defence lawyers request further disclosures on police decryption capabilities.
- Appeal court finds ‘digital phone tapping’ admissible in criminal trials: On 6 February 2021, judges decided that, despite UK law prohibiting law enforcement agencies from using evidence obtained from interception in criminal trials, communications collected by French and Dutch police from EncroChat using software “implants” were admissible evidence in British courts.
- Belgian police raid 200 premises after another encrypted phone network with parallels to EncroChat, Sky ECC, was compromised, in what prosecutors described as one of the biggest police operations conducted in the country.
- Following international police operation to penetrate the Sky ECC network and harvest “hundreds of millions” of messages, a federal grand jury in the US indicts Sky Global’s Canadian CEO, Jean-François Eap, along with former phone distributor Thomas Herman, for racketeering and knowingly facilitating the import and distribution of illegal drugs through the sale of encrypted communications devices.
- Judges refuse defendants leave to challenge the admissibility in UK courts of message communications collected by French cyber police from the encrypted phone network EncroChat.
- Computer forensic experts involved in the review of police use of data hacked from the ultra-secure EncroChat phone network assess the impact of the Appeals Court ruling on future legal use of intercept evidence.
- Forensic experts say French investigators have refused to disclose how they downloaded millions of messages from the supposedly secure EncroChat cryptophone network used by organised criminals – leaving UK courts to grapple with a forensic ‘black hole’ of evidence.
- In July 2020, after French and Dutch authorities had gained access to the encrypted EncroChat network, the NCA and its counterparts worked to disrupt the serious and organised criminal networks using the platform.
Read more on IT legislation and regulation
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Berlin court reverses ban on use of EncroChat evidence in criminal trials
Dutch prosecutor ordered to give evidence on EncroChat hack
Berlin court finds EncroChat intercept evidence cannot be used in criminal trials