Encrochat Crypto Cell Phones: Were They Allowed? | tagesschau.de

Numerous criminals have used Encrochat crypto phones to conduct their business. Then French authorities managed to crack the system. But was the involvement of the Federal Criminal Police Office legal?

By Florian Flade, WDR, and Reiko Pinkert, NDR

It was a huge blow to organized crime. In spring 2020, French authorities succeeded in cracking the Encrochat encrypted communication system. Numerous criminals exchanged cell phones specially modified for this purpose. The main focus was on drug and arms trafficking. The French shared the huge data set with European investigators – including the German Federal Criminal Police Office (BKA).

Since then, the local prosecutors’ offices have been piling up files in the Encrochat complex. In many places, prosecutors are working overtime, and some judicial authorities have even had to hire new staff. There have been raids, arrests and, in the meantime, convictions of users of crypto mobile phones nationwide.

But there are doubts about the legality of the evidence gathering. An association of European lawyers has now written an open letter. The biggest point of contention is the question of when the German investigators knew about the hack of the encrypted cell phones – and whether they agreed in advance to mass surveillance of users in Germany by French authorities. The lawyers are demanding that the investigators disclose exactly how the Encrochat system was cracked, how the data collection was carried out and which authorities were involved.

A court order is essential in Germany

In Germany, a court order must be in place to be able to tap phones. However, according to the criticism of the lawyers, no such thing happened in any Encrochat case. The two German lawyers Christian Lödden and Maximilian Rakow allege to the BKA that the investigators were involved in illegal data collection and that they subsequently concealed the circumstances.

According to the BKA’s previous representation, the data from France on German users of crypto phones was transmitted without prior knowledge. Apparently, however, the BKA and the lead public prosecutor’s office in Frankfurt am Main had been informed in advance. At least that suggests an official statement from the public prosecutor responsible at the time NDR and WDR present.

Secret video conference

According to this, the lawyer took part in a secret video conference held by Eurojust, the EU platform for judicial cooperation in criminal matters, together with two representatives of the BKA on March 9, 2020 – i.e. before the Encrochat hack. At the virtual meeting of several European public prosecutors and police authorities, the French announced that they would soon crack a crypto system and then transmit the data to the partner authorities.

According to a BKA note, however, the name Encrochat was not explicitly mentioned, only the name of the French operation: “Emma”. A BKA investigator, who appeared as a witness in the district court in Bonn this week, said when asked that it was quite clear to those involved at the time which provider was involved. In a judgment by a Norwegian court in an Encrochat case, it is also pointed out that Encrochat was already mentioned when the invitation to the virtual meeting was issued.

At the video conference in early March 2020, the French investigators explained to the European partners that for security reasons they would not disclose how the encrypted communication system was cracked.

French authorities asked for a legal review

The French authorities also asked the parties involved to give their consent to the operation and to check whether the data can also be used under the respective national legislation. This emerges from a Eurojust letter sent at the end of March 2020, a few weeks after the video conference in question.

The BKA is said to have given its approval. Shortly thereafter, the German investigators received the first data sets from France. The courts will have to clarify whether the evidence can now be used. Then other points of criticism from the lawyers have to be clarified – such as the accusation that the accused had no opportunity to check the authenticity of the evidence. There would also be no complete inspection of files.

Affected many innocents

The lawyers also criticize the fact that numerous innocent people were probably affected by the surveillance action. According to a decision by the Berlin Regional Court, only 67 percent of users were suspected criminals.

On request, the BKA confirmed that members of the authority took part in a Eurojust meeting. The BKA did not provide any information on the content of the talks, citing the confidentiality of the meeting. The BKA also announced that “the Encrochat data transmitted to the German authorities was requested at a later date by European Investigation Order (EEA) for judicial use. This was approved in mid-June 2020.”