According to a recent court hearing, the UK’s Investigatory Powers Tribunal ruled that police can lawfully use bulk surveillance techniques to access messages from encrypted communication platforms like WhatsApp and Signal. This ruling, which stemmed from the EncroChat phone network operation, has raised concerns about mass surveillance of other encrypted messaging systems.
The tribunal’s decision in 2023 allowed the National Crime Agency (NCA) to intercept millions of supposedly encrypted messages from the EncroChat phone network. This operation led to over 3,100 arrests, convictions, and significant drug seizures. However, defense lawyers argued that the NCA unlawfully used a targeted equipment interference warrant to hack into EncroChat phones, blurring the lines between bulk and thematic warrants.
Furthermore, the court heard that the NCA’s decision to apply for a targeted equipment interference warrant instead of a targeted interception warrant was incorrect. The tribunal’s reliance on the NCA’s assessment that EncroChat phones were exclusively used by criminals raised further concerns about privacy rights under the European Convention of Human Rights.
The appeal raised by defense lawyers points to important and compelling issues regarding the interpretation of the Investigatory Powers Act. The court was urged to consider the potential consequences of an erroneous legal approach to surveillance laws and whether interception protections under the Act had been removed entirely.
Ultimately, the Court of Appeal reserved its decision on whether to allow the appeal, emphasizing the importance of clarifying the legal framework surrounding bulk surveillance and thematic equipment interference warrants.