According to a report in The New York Times this week, the U.S. Justice Department is engaged in a standoff with OTT messaging-and-calling service provider WhatsApp (owned by Facebook) over encryption. The dispute is said to be over a terrorism case in which the government wants access to messages sent over WhatsApp but cannot gain it because of WhatsApp’s end-to-end encryption. With end-to-end encryption, no one except the sender and the recipient of a message—not even WhatsApp itself—can read it. Details of the case have not been revealed, but sources connected to the matter said that a wiretap order was being stymied by the encryption and that the Justice Department was considering how to proceed—whether or not to open a court fight with the OTT player. Encryption is a new feature for WhatsApp, having been added only during the past year.
Recently we wrote about the very public confrontation between Apple and the U.S. Federal Bureau of Investigation over the encryption on an iPhone formerly owned by a suspect in the San Bernardino terrorist attack that occurred in December 2015. The reported impasse with WhatsApp threatens to take the question into new terrain. With Apple, the debate is over the status of a single mobile device; with WhatsApp, the status of a worldwide network of communications, independent of any device, is up for grabs. If WhatsApp were to agree to change its encryption so that messages could be accessible to the company if subpoenaed in a criminal investigation, WhatsApp’s standing with its users—who number approximately a billion—could be damaged. In the Apple case, we noted, the technology giant has to weigh the maintenance of its brand as a provider of secure devices against the harm that could come to it if it fails to comply with government demands in the U.S. and potentially elsewhere, the consequences of which could include restriction of its ability to sell devices.
As for WhatsApp, on the other hand, all it is selling is a service, and the security of that service has come to be a key selling point because it allows people all over the world to communicate with each other despite the efforts of repressive regimes that seek to impede freedom of speech. Now, it is true that a government could take the step of shutting down WhatsApp, as Brazil briefly did late last year when WhatsApp refused to comply with wiretapping requests. But WhatsApp has become big enough, with so many people depending on it, that we venture to say that it has more leverage than Apple with which to prevail in the encryption wars, and more motivation, as well.