European police chiefs target E2EE in latest demand for 'lawful access'

In the latest iteration of the never-ending (and always head-scratching) crypto wars, Graeme Biggar, the director general of the U.K.'s National Crime Agency (NCA), has called on Instagram's parent, Meta, to rethink its continued rollout of end-to-end encryption (E2EE).

The call follows a joint declaration on Sunday by European police chiefs, including the U.K.'s own, expressing "concern" at how E2EE is being rolled out by the tech industry and calling for platforms to design security systems in such a way that they can still identify illegal activity and send reports on message content to law enforcement.

In remarks to the BBC on Monday, the NCA chief suggested Meta's current plan to beef up the security around Instagram users' private chats by rolling out "zero access" encryption — where only the message's sender and recipient can access the content — poses a threat to child safety. The social networking giant also kicked off a long-planned rollout of default E2EE on Facebook Messenger back in December.

"Pass us the information"

Speaking to BBC Radio 4's Today program, Biggar told interviewer Nick Robinson: "Our responsibility as law enforcement … is to protect the public from organized crime, from serious crime, and we need information to be able to do that.

"Tech companies are putting a lot of the information on end-to-end encryption. We have no problem with encryption; I've got a responsibility to try and protect the public from cybercrime, too — so strong encryption is a good thing — but what we need is for the companies to still be able to pass us the information we need to keep the public safe."

Currently, as a result of being able to scan messages that aren't encrypted, platforms are sending tens of millions of child safety-related reports a year to police forces around the world, Biggar said — adding a further claim that "on the back of that information, we typically safeguard 1,200 children a month and arrest 800 people." The implication here is that those reports will dry up if Meta continues expanding its use of E2EE to Instagram.

Pointing out that Meta-owned WhatsApp has had the gold standard encryption as its default for years (E2EE was fully implemented across the messaging platform by April 2016), Robinson wondered if this wasn't a case of the crime agency trying to close the stable door after the horse has bolted. He got no straight answer to that — just more head-scratching equivocation.

Biggar said, "It is a trend. We are not trying to stop encryption. As I said, we completely support encryption and privacy, and even end-to-end encryption can be absolutely fine. What we want is for the industry to find ways to still provide us with the information that we need."

Biggar's intervention is in line with the joint declaration mentioned above, in which European police chiefs urge platforms to adopt unspecified "technical solutions" that can offer users robust security and privacy while maintaining their ability to spot illegal activity and report decrypted content to police forces.

"Companies will not be able to respond effectively to a lawful authority," the declaration reads. "As a result, we will simply not be able to keep the public safe … We therefore call on the technology industry to build in security by design, to ensure they maintain the ability to both identify and report harmful and illegal activities, such as child sexual exploitation, and to lawfully and exceptionally act on a lawful authority."

A similar "lawful access" mandate was adopted on encrypted messaging by the European Council back in a December 2020 resolution.

Client-side scanning?

The declaration does not explain which technologies they want platforms to deploy so they can scan for problematic content and send that decrypted content to law enforcement. It's likely they are lobbying for some form of client-side scanning — such as the system Apple was poised to roll out in 2021 for detecting child sexual abuse material (CSAM) on users' devices.

EU lawmakers, meanwhile, still have a controversial message-scanning CSAM legislative plan on the table. Privacy and legal experts — including the bloc's own data protection supervisor — have warned the draft law poses an existential threat to democratic freedoms and could wreak havoc with cybersecurity as well. Critics also argue it's a flawed approach to safeguarding children, suggesting it's likely to cause more harm than good by generating lots of false positives.

Last October, parliamentarians pushed back against the Commission's proposal, and instead backed a substantially revised approach that aims to limit the scope of CSAM "detection orders." However, the European Council has yet to agree on its position. This month, scores of civil society groups and privacy experts warned the proposed "mass surveillance" law remains a threat to E2EE. Meanwhile, EU lawmakers have agreed to extend a temporary derogation from the bloc's ePrivacy rules that lets platforms carry out voluntary scanning for CSAM — the planned law is intended to replace that.

The timing of Sunday's joint declaration suggests it is intended to amp up pressure on EU lawmakers to stick with the CSAM-scanning plan.

The EU's proposal does not prescribe any technologies that platforms must use to scan message content either, but critics warn it's likely to force adoption of client-side scanning despite the nascent technology being immature, unproven and simply not ready for mainstream use.

Robinson didn't ask Biggar if police chiefs are lobbying for client-side scanning, but he did ask whether they want Meta to "backdoor" encryption. Again, Biggar's answer was fuzzy: "We wouldn't call it a backdoor — exactly how it happens is for the industry to determine. They are the experts in this."

Robinson pressed the U.K. police chief for clarification, pointing out information is either robustly encrypted (and so private), or it's not. But Biggar danced further away from the point, arguing "every platform is on a spectrum" of information security versus information visibility. "Almost nothing is at the absolutely completely secure end," he suggested. "Customers don't want that for usability reasons [such as] being able to get their data back if they've lost a phone.

"What we're saying is being absolute on either side doesn't work. Of course, we don't want everything to be absolutely open. But also we don't want everything to be absolutely closed. So we want the companies to find a way of making sure that they can provide security and encryption for the public, but still provide us with the information that we need to protect the public."

Nonexistent safety tech

In recent years, the U.K. Home Office has been pushing the notion of "safety tech" that would allow for scanning of E2EE content to detect CSAM without impacting user privacy. However, a 2021 “Safety Tech” challenge it ran, in a bid to deliver proof of concepts for such a technology, produced results so poor that the expert appointed to evaluate the projects, the University of Bristol's cybersecurity professor Awais Rashid, warned last year that none of the technology developed for the challenge is fit for purpose. "Our evaluation shows that the solutions under consideration will compromise privacy at large and have no built-in safeguards to stop repurposing of such technologies for monitoring any personal communications,” he wrote.

If the technology to allow law enforcement to access E2EE data without harming users' privacy does exist, as Biggar appears to be claiming, why can't police forces explain what they want platforms to implement? (It should be noted here that last year, reports suggested government ministers had privately acknowledged no such privacy-safe E2EE-scanning technology currently exists.)

TechCrunch contacted Meta for a response to Biggar's remarks and to the broader joint declaration. In an emailed statement, a company spokesperson repeated its defense of expanding access to E2EE, writing: “The overwhelming majority of Brits already rely on apps that use encryption to keep them safe from hackers, fraudsters, and criminals. We don’t think people want us reading their private messages, so have spent the last five years developing robust safety measures to prevent, detect and combat abuse while maintaining online security. We recently published an updated report setting out these measures, such as restricting people over 19 from messaging teens who don’t follow them and using technology to identify and take action against malicious behaviour. As we roll out end-to-end encryption, we expect to continue providing more reports to law enforcement than our peers due to our industry leading work on keeping people safe.”

Meta has weathered a string of similar calls from U.K. Home Secretaries over the Conservative government's decade-plus run. Last September, Suella Braverman, the Home Secretary at the time, told Meta it must deploy "safety measures" alongside E2EE, warning that the government could use its powers in the Online Safety Bill (now Act) to sanction the company if it failed to play ball.

When Robinson asked Biggar if the government could act if Meta does not change course on E2EE, the police chief both invoked the Online Safety Act and pointed to another piece of legislation, the surveillance-enabling Investigatory Powers Act (IPA), saying: "Government can act and government should act. It has strong powers under the Investigatory Powers Act and also the Online Safety Act to do so."

Penalties for breaches of the Online Safety Act can be substantial, and the Ofcom is empowered to issue fines of up to 10% of worldwide annual turnover.

The U.K. government is also in the process of beefing up the IPA with more powers targeted at messaging platforms, including a requirement that messaging services must clear security features with the Home Office before releasing them.

The plan to further expand the IPA's scope has triggered concerns across the U.K. tech industry that citizens' security and privacy will be put at risk. Last summer, Apple warned it could be forced to shut down services like iMessage and FaceTime in the U.K. if the government did not rethink its planned expansion of surveillance powers.

There's some irony in this latest lobbying campaign. Law enforcement and security services have almost certainly never had access to more signals intelligence than they do today, even factoring in the rise of E2EE. So the idea that improved web security will suddenly spell the end of child safeguarding efforts is a distinctly binary claim.

However, anyone familiar with the decades-long crypto wars won't be surprised to see such pleas being deployed in a bid to weaken internet security. That's how this propaganda war has always been waged.