Encrochat Legal Challenges

What is EncroChat?

Encrochat can be traced back to 2016 and is a Dutch company that is based in France. Their mobile phones are modified to include software that encrypts data, along with the removal of hardware such as the microphone, camera and GPS.

Before it was infiltrated in 2020 by the National Gendarmerie, it had an estimated 60,000 users across Europe, with 10,000 in the United Kingdom.

Although general citizens could use these phones, with the majority of phone users having some sort of encryption on their regular mobile phones, Encrochat was also used by organised crime gangs.

They used specific messaging software which encrypts messages once they are sent, and decrypts them once they arrive at the intended destination, often requiring a password to open the message. This prevented intervention by law enforcement as they could not access the data until the infiltration.

What are the top legal challenges faced with Encrochat and why is it so difficult to prosecute?

Investigatory Powers Act 2016

One of the top legal questions is whether or not the Encrochat hack took place in the United Kingdom.

Following the Investigatory Powers Act 2016 (which provides a framework for investigatory powers of law enforcement), no interception evidence that took place outside of the UK and at least one of the parties is in the UK, can be relied on in court.

The Encrochat servers were found in France by the French Authorities, and therefore the IPA 2016 could not apply.

Connecting the individual

It is also difficult to link the individual to the phone due to the high levels of privacy involved in EncroChat.

The market ‘guaranteed anonymity’ and therefore there is supposedly no way to associate a SIM or device with a customer account. This results in it being extremely difficult to link the individual to the crime unless the police have photographic evidence of the suspect using the device or the phone was found in the suspect’s possession.

Implications on privacy

Using the evidence found in this hack also places courts in a difficult position, as it sets a precedent of using hacked information within court cases. This also has implications on law enforcement and their ability to access any message that any citizen sends, which is arguably an invasion of privacy.

How was it possible for EncroChat to get hacked?

EncroChat first came to the attention of the French Gendarmerie in 2017 after regularly finding encrypted phones whilst conducting operations against crime gangs. From this, it was discovered that many of the servers were based in France, allowing them to put a “technical device” in place, allowing them to access encrypted messages.
Reports also suggest that a piece of malware allowing for the phones to be hacked was found and reported to the company, resulting in many users of encrochat destroying their phones.

How can an EncroChat Cyber Crime Defence Lawyer help you?

Preparation for your case is the most important thing when it comes to an EncroChat crime case.

Your cyber crime defence lawyer will be able to offer you advice on your courses of actions, generally focusing on the acquisition of information as well as building a case around your connection to the crime.