Sometime last year, Facebook challenged a law enforcement request for access to encrypted communications through Facebook Messenger, and a federal judge denied the government’s demand. At least, that is what has been reported by the press. Troublingly, the details of this case are still not available to the public, as the opinion was issued “under seal.” We are trying to change that.
Mozilla, with Atlassian, has filed a friend of the court brief in a Ninth Circuit appeal arguing for unsealing portions of the opinion that don’t reveal sensitive or proprietary information or, alternatively, for releasing a summary of the court’s legal analysis. Our common law legal system is built on precedent, which depends on the public availability of court opinions for potential litigants and defendants to understand the direction of the law. This opinion would have been only the third since 2003 offering substantive precedent on compelled access—thus especially relevant input on an especially serious issue.
This case may have important implications for the current debate about whether and under what circumstances law enforcement can access encrypted data and encrypted communications. The opinion, if disclosed, could help all kinds of tech companies push back on overreaching law enforcement demands. We are deeply committed to building secure products and establishing transparency and control for our users, and this information is vital to enabling those ends. As thoughtful, mission-driven engineers and product designers, it’s critical for us as well as end users to understand the legal landscape around what the government can and cannot require.