Civics: Subpoena to Encrypted App Provider Highlights Overbroad FBI Requests for Information

Jenna McLaughlin:

The information the FBI is requesting from Open Whisper Systems is “arguably available with a subpoena,” Nate Cardozo, senior staff attorney at the Electronic Frontier Foundation wrote in a Twitter message, but “overproduction is FBI’s goal.”

Overproduction occurs when a company or other target of a subpoena supplies more information than is asked for — either in range or in type.

Facebook, like Open Whisper Systems, requires a court order for more revealing metadata like “message headers and IP addresses” according to its public law enforcement guidelines. Apple tells The Intercept it requires the same standard.

When the Electronic Communications Privacy Act was enacted in 1986, Congress authorized law enforcement to get historical phone records from companies with just a subpoena — determining that this type of information was less sensitive — but not email metadata. For that, they’d need a higher-level court order.

For applications like Signal — which facilitates calls and text messages over the internet between users of the app — it’s unclear whether it falls under the protections of e-mail or phone calls.