Do hacks of enchrochats violate the rule of law?

The decryption of the messenger service “Enchrochat” was a breakthrough for investigative authorities in Europe. But does the use of the chat logs result in an unfair advantage on the part of law enforcement? This is now increasingly the opinion of criminal defense lawyers. They are thus backing up their view that the hacking of enchrochats violates the rule of law.

Criminal defense lawyers have “massive rule of law concerns”

The criticism comes from a coalition of criminal defense lawyers from across Europe. At the heart of their open letter, published last Friday, is the discrepancy between Enchrochat hacks and the rule of law. In this, they get backing from the Fair Trial organization. However, their fear is not only about preserving the rule of law, but goes even further. Namely, they assume “serious risks for fundamental rights and the rule of law.”

Success speaks for itself

From the investigators’ point of view, the decryption of Enchrochat is a real breakthrough. The statistics already make this clear. For example, law enforcement officers across Europe have been able to arrest hundreds of suspects based on the collected data in recent months alone. Of course, this also applies to Germany. The Federal Criminal Police Office (BKA) has stated that they currently have just under 2700 active investigations underway. These all focus on users of so-called “Enchrochat cell phones”. Cell phones with the encrypted communication service are used primarily by criminals in the field of drug and weapons crime.

Initiative mainly from the side of French investigative authorities

Interest in the use of Enchrochat data had especially the police authorities of France. Our neighbor’s law enforcement agencies were able to download plenty of valuable information from the messenger service’s databases. The authorities then passed this on directly to Europe’s most renowned police authority – Europol. After an extensive evaluation, the law enforcement agency responsible for the whole of Europe passed the data on to the EU states concerned. The French procedure is still unknown to this day. The main reason given for the secrecy is the protection of internal security. This is understandable, since the French authorities would otherwise let themselves be peeked at.

National security as a pretext?

As mentioned at the beginning, defense lawyers criticize the fairness granted by the rule of law during trials. They say that the investigating authorities have pulled out national security as an ace up their sleeve to cover up the sometimes serious violations of the rule of law. What is extremely problematic here is that the investigators do not allow themselves to look into their “toolbox.” How the chat data was collected is kept secret for reasons of national security. According to defense attorneys, this ensures that it is not possible to

“to verify the accuracy, authenticity, reliability and even the legality of the evidence used against them.”

Violation of Jurisdictions?

Especially in the field of gun and drug crime, the masterminds are increasingly well connected. They have long cooperated with each other beyond the borders of their respective countries. It is precisely here that the association of criminal defense lawyers sees another problem. After all, the actions of the French police in many cases violate the sovereignty of some EU members.

“It must be assumed that the French gendarmerie exercised extraterritorial jurisdiction with the hack, which violated the sovereignty of the individual member states.”

Several court rulings questionable

A big question mark is still to what extent the BKA was involved in the analysis of the collected data from the Enchrochat. In this regard, there would be regular disputes between defense attorneys and officials of the Federal Criminal Police Office in court. Only recently, an official of the BKA stated before the Bonn Regional Court that they had known about the decryption of the French in March 2020, but had not been kept up to date about the progress of the proceedings. When they received the collected data the following month, it is said to have been unclear how the French authorities got hold of it.

This seems very confusing in light of the fact that, on the part of the Netherlands, consent was obtained from all law enforcement authorities of the respective EU members as recently as March 2020. The official questioned at the LG Bonn confirmed this on inquiry of the defense lawyers. It is just such contradictory statements that cause displeasure on the part of the defense attorneys. This is further evidence that many court decisions in recent months have been made on the basis of data collected through questionable circumstances. We are curious to see how the issue of enchrochats will develop further and whether the association of defense lawyers will achieve anything with its open letter.