Encryption discussion during the 8 December trial: from myth to reality

For four weeks last October, the Paris criminal court held hearings in the “8 December” trial. In this case, seven people are being prosecuted for “terrorist criminal association”. All of them contest the charges, and after three years of investigation there is not the slightest evidence of a terrorist plot. Among the “proofs” put forward by the public prosecutor and intelligence agents to show the existence of a “terrorist” intent, there were elements relating to the use of privacy protection tools, supposed to illustrate a so-called clandestinity. Outraged by this dangerous attempt on right to privacy, we revealed and denounced vigorously this dishonest confusion. What place was given to this topic during the hearing by the criminal court? Here’s a look back at the hearings we attended, ahead of the announcement of the verdict scheduled for 22 December¹To catch up with the full content of the trial, a number of media outlets reported regularly on the hearings, including the blog of the support committees, Le Monde, Mediapart, lundimatin, L’Obs or Libération..

During the hearing, the personalities ans traits of the defendants were successively reviewed, followed by thematic reviews of the charges against them. After discussing the issue of explosives, possession of weapons and the practice of “airsoft” (described by the prosecution as “paramilitary training”), the “digital” issue was examined. Several of the defendants were questioned about their use of tools and softwares such as Signal, Tor and Tails, and about the encryption of their computers and hard drives. The questioning followed the same pattern as the prosecution’s investigations, which we revealed a few months ago: both a huge amount of confusion as to the technical understanding of these tools and a suspicious approach to their actual use. Three defendants were questioned about their motivation for using such softwares, as if a well-argued justification was needed, even though the tools were perfectly normal, legal and ordinary.

“It is possible and not forbidden to have these tools, but we can ask ourselves why dissimulate information” the president of the court stated. Suspicion of clandestinity coupled with little knowledge of the subject was evident in their questions: “You explain that the use of this ‘kind of network’ [in this case Signal] was to preserve your privacy, but are you afraid of being monitored?”. Or: “Why did you think it was important or a good idea to find out about this ‘kind of environment’ [this time it was the Tails operating system] ?”. A judge did not hesitate to use the lexical field of weapons when she tried to understand why such a “complete arsenal of various tools” had been used, suggesting a “desire for discretion” from the defendants. On the other side, the defendants responded in a simple and coherent manner that can be summed up as follows: “It’s my private life, it’s my right, it’s important, it’s ordinary to use these tools, especially in the activist sphere, which we know is increasingly exposed to state surveillance”.

The issue of refusing to disclose encryption keys was also raised. In this case, several defendants, when arrested, refused to provide the unlocking codes for computers, telephones or hard drives seized during a search by the intelligence service agents in charge of the investigation. In France, such a denial may constitute an offence on the basis of a widely interpreted and much disputed provision. In response to the judges’ incomprehension – why expose themselves so openly to criminal prosecution? – the defendants did not provide them with the expected confessions. On the contrary, those questioned took the discussion further, to talk about their fundamental rights and freedoms and revealing the violent nature of anti-terrorist proceedings. “In a moment of vulnerability such as that of police custody, after giving my DNA, I wanted to hold on to what privacy remained to me, I wanted to preserve it” explained Camille, a defendant described by the prosecutor as the digital expert of the group. Loïc, another defendant, added: “I knew that the DGSI [the intelligence service in charge of the investigations] would manage to decipher my computer hardware and see that I’m not dangerous, so this was my way of showing my refusal, because my freedom and my privacy are more precious”.

Finally, in order to shed light on how the tools at the centre of the case work and how they are actually used, a member of La Quadrature du Net, who also developed an app called Silence, testified at the trial. Whether he was talking about encryption, Signal, Tor, Tails or the /e/OS operating system, his testimony highlighted the banality of the technologies behind these apps and their widespread and necessary use in today’s digital society, far from the clandestine fantasies made up by the intelligence services and the public prosecutor’s office. However, judges asked him very few questions. The public prosecutor, for his part, was only concerned that elements of the case file, although they were not covered by the secret of the investigation, had been brought to the attention of the witness. It was a poor theatrical performance, which above all suggested a desire to undermine the credibility of the witness and the content of his testimony.

Generally speaking, digital practices were given little importance compared to the scale and duration of the trial, and far less than what was given to them in the prosecution briefs. What explanation can we draw from both the lack of interest shown by the judges and the small amount of time devoted to this subject? It is hard to be sure. On one hand, it could be seen as an acknowledgement by judges and prosecutors of the absurdity of blaming the use of legal and legitimate tools. Let’s not forget that more than 130 academics, journalists, activists, players from the non-profit sector and the digital ecosystem have signed an op-ed in the newspaper Le Monde denouncing this manipulation and defending the right to encryption. But on the other hand, this lack of concern could be a sign of their indifference to these issues, and in particular to the importance of the right to privacy. This would not be surprising in a case based on the intensive use of intelligence techniques and the disproportionate surveillance of seven people whose lives have been crushed by the judicial machine.

The judgment will be released on 22 December. Whether the court retains or not as an argument the use of privacy-protecting technologies in the reasoning for its decision or leaves this issue aside, the police’s fictional story on this issue is likely to have long-term consequences. The precedent of an anti-terrorist charge based essentially on this point now exists and it is hard to believe that at a time when encryption is under attack from many quarters, in France and Europe, the police will not re-use this pattern of criminalisation to justify ever-increasing surveillance of the population and activist groups.