In October 2020, Christian Lödden’s potential clients sought to discuss just one thing, which carried on for a week. Every individual whom the German criminal defense lawyer has contacted had apparently been utilizing the encrypted phone network EncroChat. This information raised concerns about their devices being hacked, potentially exposing the crimes they may have been a part of. “I had 20 meetings like this. Then I realized—oh my gosh—the flood is coming.” Lödden says.
Authorities in Europe, led by French and Dutch forces disclosed how the EncroChar network had been compromised several months earlier. More than 100 million messages were siphoned out by malware the police covertly inserted into the encrypted system, exposing the inner workings of the criminal underworld. People openly discussed drug deals, coordinated kidnappings, premeditated killings, and worse.
The hack, considered one of the largest ever being conducted by the police, was an intelligence gold mine. It led to hundreds of arrests, home raids, and thousands of kilograms of drugs being seized. Following this, thousands of EncroChat members are now imprisoned in Europe, including the UK, Germany, France, and the Netherlands, after two years have passed.
Hacking EncroChat
The EncroChat phone network, which was established in 2016, had about 60,000 users when it was uncovered by law enforcement. According to EncroChat's company website, subscribers paid hundreds of dollars to use a customized Android phone that could "guarantee anonymity." The phone's security features included the ability to "panic wipe" everything on the device, live customer assistance, and encrypted conversations, notes, and phone calls using a version of the Signal protocol. Its GPS chip, microphone, and camera may all be taken out.
Instead of decrypting the phone network, it appears that the police who hacked it compromised the EncroChat servers in Roubaix, France, and then distributed malware to devices.
According to court filings, 32,477 of EncroChat's 66,134 users in 122 countries were affected, despite the little-known fact on how the breach occurred or the kind of malware deployed.
The Documents obtained by Motherboard indicated that the investigators might potentially collect all of the data on the phones. The participating law enforcement agencies in the inquiry exchanged this information. (EncroChat claimed to be a legitimate business before shutting down as a result of the breach.)
Legal Challenged Building Up
In regard to the hack, Europe is facing several legal challenges.
While in many countries the court has ruled that the hacked EncroChat messages can be utilized as legal shreds of evidence, these decisions have now been disputed.
According to a report by Computer Weekly, many of the reported cases possess complexity: Every country has a unique legal system with distinct guidelines about the kinds of evidence that may be utilized and the procedures prosecutors must adhere to. For instance, Germany places strict restrictions on the installation of malware on mobile devices, while the UK generally forbids the use of "intercepted" evidence in court.
The most well-known objection to date comes from German attorneys. One of the top courts on the continent, the Court of Justice of the European Union (CJEU), received an EncroChat appeal from a regional court in Berlin in October.
The judge asked the court to rule on 14 issues relating to the use of the data in criminal cases and how it was moved across Europe. The Berlin court emphasized how covert the investigation was. The court decision's machine translation states that "technical specifics on the operation of the trojan software and the storage, assignment, and filtering of the data by the French authorities and Europol are not known." "French military secrecy inherently affects how the trojan software functions."
Police Being Praised
Despite the legal issues, police departments all around Europe have praised the EncroChat breach and how it has assisted in locking up criminals. In massive coordinated policing operations that began as soon as the hack was revealed in June 2020, hundreds of people were imprisoned. In the Netherlands, police found criminals using shipping containers as "torture chambers."
Since then, a steady stream of EncroChat cases has been brought before courts, and individuals have been imprisoned for some of the most severe crimes. The data from EncroChat has been a tremendous help to law enforcement; as a result of the police raids, organized crime arrests in Germany increased by 17%, and at least 2,800 persons have been detained in the UK.
But is it Legal?
Despite the police being lauded for capturing the criminals, according to the lawyers, this method of investigation is flawed and should not be presented as evidence in court. They emphasized how the secrecy of the hacking indicates that suspects have not received fair trials. A lawsuit from Germany was then sent to Europe's top court toward the end of 2022.
If successful, the appeal could jeopardize criminals' convictions across Europe. Additionally, analysts claim that the consequences have an impact on end-to-end encryption globally.
“Even bad people have rights in our jurisdictions because we are so proud of our rule of law […] We’re not defending criminals or defending crimes. We are defending the rights of accused people,” says Lödden.
