Signal, WhatsApp, Telegram…: the use of encrypted messaging considered terrorist behavior by French justice?

Can using an application like Signal, a VPN or Tor to encrypt its communications be enough to justify the existence of a terrorist enterprise in the eyes of French justice? The question arises in the context of a case involving nine people designated as belonging to the“ultraleft”. They were arrested on December 8, 2020 by the DGSI and the Raid, before being charged with “association of terrorist criminals”. Seven were indicted and five remanded in custody.

Beyond the facts of which these people are accused, it is the grounds held against them by the French courts that raise questions. Especially since the treatment reserved for them was particularly severe, especially for one of them, known under the pseudonym Libre Flot. The latter was placed in solitary confinement for sixteen months before being released after a 37-day hunger strike. The state has just been condemned for this.

Criminalized digital practices

Such treatment would not necessarily be shocking if tangible evidence against these people existed, but this is not the case according to La Quadrature du Net, which published a particularly well-supported vitriolic column. The association for the defense of rights and freedoms on the internet is indeed offended “due to the fact that the digital practices of the accused – first and foremost the use of encrypted messaging for the general public – are instrumentalized as evidence of a so-called clandestinity revealing the existence of an unknown terrorist project”.

La Quadrature du Net cites as proof of this a document from the DGSI, which called for the opening of a preliminary investigation. “All the members contacted adopted a clandestine behavior, with increased security of the means of communication (encrypted applications, Tails operating system, TOR protocol allowing anonymous browsing on the Internet and public wifi)”, was it written in this note. An argument which was taken up as such by the magistrates, including the examining magistrate, denounces the association. It also explains that the defendants were “systematically questioned about their use of encryption tools and asked to justify themselves”. Thus, La Quadrature du Net raised more than 150 questions related to the digital practices of indictments.

Amalgamation between encryption and clandestinity

In the eyes of the association, the amalgam between encryption and clandestinity was at the heart of the investigation, before being taken up by the indictment of the National Anti-Terrorist Prosecutor’s Office (PNAT). The latter also spoke at length about the use of encrypted messaging, at the forefront of which is Signal, an application recommended by the American whistleblower Edward Snowden. The investigating judge relied on this indictment to invoke the digital practices of the indicted as overwhelming evidence, thus assimilating the encryption of communications “to a danger factor”notes La Quadrature du Net.

This logic was confirmed by highlighting seized computer documents, including “handwritten notes about installing a de-googled mainstream mobile operating system (/e/OS) and mentioning various privacy-protecting apps (GrapheneOS, LineageOS, Signal, Silence, Jitsi, OnionShare, F-Droid, Tor, RiseupVPN, Orbot, uBlock Origin…)”. What to materialize a “willingness to live in hiding” in the eyes of the DGSI and French justice.

“Are you anti-GAFA?”

For the PNAT, this criminalization of computer knowledge is aggravated by the fact of having transmitted these skills to those around them. Consequently, the investigating judge went so far as to consider these formations, also called “Chiffrofêtes” or “Cryptoparties”, as one of the “material facts” characterizing “participation in a group formed […] with a view to the preparation of acts of terrorism”. In this context, La Quadrature du Net denounces “the criminalization of practices, of the use of secure and encrypted software and more broadly, the delegitimization of a vision of free, decentralized and emancipatory digital technology in the face of all forms of surveillance, including that which is ever more invasive by the State”.

The icing on the cake, French justice even perceived the mistrust of the indicted vis-à-vis the Gafam as a sign of radicalization, believes La Quadrature du Net. “Are you anti-GAFA?”, “What do you think of GAFA?” or “Do you have any reservations about communication technologies?”, are among the questions asked to the defendants. While the EU has been seeking for years to reduce its dependence on Gafam, this attitude is surprising. Above all, it is particularly worrying when the abuses of the laws passed in recent years in Parliament in the name of national security only reinforce the fears that weigh on the respect for the privacy of the French.