On 20 July 2016, a court in Brazil temporarily blocked
access to WhatsApp on the basis that its owner, Facebook, had shown
"total disrespect for Brazilian laws". Hours
later, the decision was overturned by Brazil's Supreme Court
for being "scarcely reasonable or
Communicating through online services other than email and SMS
is on the rise, and for many people, it is now the norm. WhatsApp,
owned by Facebook Inc, is a service used by 1 billion people
worldwide, with 2.4 million users in Australia. Facebook itself has
1.65 billion users, with more than 900 million users on its own
This month's ban on WhatsApp marks the third time such a ban
has occurred in Brazil – the longest being in place for 72
hours. This most recent ban arose from Facebook's refusal to
provide chat logs from WhatsApp related to a criminal
investigation. Facebook declined to provide the requested chat logs
because it claimed not to have access to WhatsApp users'
WhatsApp's end-to-end encryption ensures that only its
customer and the person its customer is communicating with can read
a message. Nobody in between, not even WhatsApp, can access that
message. End-to-end encryption means that encrypted communications
are only decipherable when viewed on the recipient's device.
Therefore, only those with access to the recipient's device can
see the message in readable form.
End-to-end encryption is now the only way to communicate using
WhatsApp – that is, you cannot opt in or out. WhatsApp
describes its service in its Privacy Notice as follows:
Users type their messages, which are sent via data
service to our servers, and routed to the intended recipient (who
must also be a WhatsApp user), if that recipient is online. If the
recipient is not online, the undelivered message is held in
WhatsApp's server until it can be delivered. If the message is
undelivered for thirty (30) days, the undelivered message is
deleted from our servers. Once a message has been delivered, it no
longer resides on our servers. The contents of any delivered
messages are not kept or retained by WhatsApp — the only
records of the content of any delivered messages reside directly on
the sender's and recipient's mobile devices (and which may
be deleted at the user's option)...
Files that are sent through the WhatsApp Service
will reside on our servers after delivery for a short period of
time, but are deleted and stripped of any identifiable information
within a short period of time in accordance with our general
In July 2016, it was reported that Facebook began testing
end-to-end encryption on Messenger and will be rolling out the
encryption technology soon. It is possible that other online
messaging services will also implement end-to-end encryption as a
default on their services. If this is the way the market is moving,
it may be that free email service providers start to do the
From an Australian perspective, the use of end-to-end encryption
represents a real risk for preserving, obtaining and presenting
evidence of communications.
Ordinarily, where it is suspected that evidence in digital form
existed but has not been discovered by a party, it is possible to
obtain that evidence by obtaining a court order for production
against a third party who holds that information. For example, in
the case of email accounts, a subpoena may be issued to the service
provider for all emails kept on its servers for a particular email
Legislative reforms aimed at WhatsApp and other encrypted
messaging services are being debated overseas, primarily in the
context of national security issues. It remains to be seen how
Australian courts will respond to the rise of these services and
their impact on the evidentiary process. We will watch any such
developments with keen interest.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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