The National Crime Agency (NCA) has received an order to secretly collect hundreds of thousands of messages from the encrypted mobile phone network EncroChat, based on a conversation between a French and British law enforcement official that was not confirmed in writing, a court said this week.
The claim was made during the second day of a legal challenge in Britain’s most secret court, the Court of Inquiry Powers, which will decide whether the NCA has a legal basis for using material extracted from EncroChat in criminal prosecutions.
The NCA, which works with police forces, has made 1,550 arrests across the UK, seized 115 firearms, £54m in cash and large quantities of drugs by analyzing messages obtained through a French hack on EncroChat phones. used by organized criminals, in 2020.
NCA intelligence officer Emma Sweeting penned an email describing how the French will use an “implant” to extract EncroChat messages from phone phones during a meeting in Europol to discuss France’s EncroChat operation from February 19-21, 2020.
Sweeting told the court that on the last day of the meeting she showed the draft email to Jeremy Decaux, the criminal investigation officer in charge of France’s EncroChat investigation, who orally agreed that it was true.
The court heard that the NCA used the email to apply for a Targeted Equipment Interference (TEI) warrant – which authorized it to use the compromised EncroChat messages in criminal prosecutions in the UK – without obtaining written confirmation of its accuracy from the French.
The French did not use the word “plant”
Stephen Kamlesh KC, told Sweeting that Decou could not approve of her email, which described the hacking tool as an “implant,” because that was a word Decou refused to use.
The court heard that NCA officers asked Deco in an interview in September 2020 if he wanted to describe the interception mechanism as an implant, instrument or technical device.
“Jeremy always uses a tool, a capture tool, or a technical device. Kamalesh once said when asked if he wanted to use the word “implant” or something else, he used the scientist’s tool, and he didn’t use the word “implant.”
Decode the “error” in the interview by saying that the technical staff retrieved data from the server at OVH – a data center in France that hosts EncroChat.
NCA obtained its TEI order on the grounds that EncroChat messages were extracted from the phone’s phones.
Kamlesh told the court that Deco corrected himself by saying that he could not comment on the technical aspects.
Sweeting said she couldn’t answer what Deco said in the interview. “The truth is as I describe it. I put it up for Jeremy Deco and he confirmed it was accurate and true.”
The French warned of potential problems
The court heard Sweeting via email in January 2020, suggesting that the French hacking technology may not be accepted in UK court cases.
“I remember in our meeting, you said you can’t intercept the phone in a court case,” he wrote. He said the same problem might apply to phone data interception.
He told Sweeting he hoped the judges would find a solution to allow the NCA to use data from the French operation.
The gendarmerie officer wrote that the phone’s history would be accessed “live or semi-direct time” from “our server”.
“This raises the alarm for anyone requesting a TEI warrant,” Kamlesh said.
Sweeting said it understood Decou was referring to a server set up by the French to receive data, not the EncroChat server.
The NCA can apply for a TEI warrant to use material extracted from telephone devices as evidence for trials. If a TEI is not suitable, they can apply for a Targeted Interception (TI) order, which would allow the EncroChat material to be used for intelligence purposes.
“We were trying to find the right arrest warrant, TEI or TI,” she said. “If it’s TI, we can use it as intelligence.”
Europol meeting note
Camlish questioned Sweeting about notes taken during the Europol meeting by NCA Officer James Wilmot, who recorded that the data would only be collected in France from the server rather than targeting every EncroChat device.
“Legal advice must now be sought to consider the new definition of activity,” Wilmott wrote.
Camlish asked if Sweeting had organized a call with the NCA’s legal department because she was “extremely concerned” about the contents of the Wilmott memo.
“We’ve been in regular conversations with the legal NCA,” she said. “It wasn’t something I was worried about, it was just an update of the law.”
Sweeting said she could not recall the conversation with the NCA legal but did disclose her books.
An NCA intelligence officer was also questioned about a memo written by a senior NCA officer, Brendon Moore, that was sent to NCA senior officers in early February ahead of the Europol meeting.
The memo stated that the NCA “learned” that the technology used by the French would be based on “TEI, not TI.”
“I didn’t feel like an agency that had a specific point of view,” Sweeting said. “I can’t explain what Brendon wrote.”
Kamlish said there were at least three emails where Sweeting referred to the TEI memo without referring to the TI memo, including one saying “considered TEI” before the Europol meeting.
NCA no questions asked
Sweeting agreed that it had not instructed a technical official to ask Decou more questions about the French hacking technology before the Europol meeting.
“There’s a reason you didn’t ask for it. She didn’t want to have an official response saying this was TEI,” Kamlesh asked.
“There was no conscious decision. This was in the context of the Europol meeting where we were going to find out more.
Sweeting said it was incorrect to suggest that discussions that did not provide the answer the NCA was looking for were buried.
“The transcripts were made available, the emails were made available. There were no discussions we got rid of,” she said.
The duty of frankness
Simon Csoka asked KC Sweeting if she understood it was her duty to provide the information to the judicial commissioner who authorized the NCA order, “even if this is information that will not help what you were trying to achieve.”
She agreed that the NCA’s TEI memo did not say anything about the circumstances in which Sweeting met Decou. She did not recall any discussion of including this information in the TEI.
Csoka asked Sweeting why she had not sent the email she had shown to Decou at the Europol meeting to Decou to obtain confirmation of its accuracy in writing.
“Are you suggesting that the French did not want to determine whether the implant was extracted from the device or from the server?” he asked.
Sweeting said she wasn’t suggesting it. “I’m just explaining the course of events in Europol.”
“In that case, why don’t you ask Mr. Deku to confirm in the formal sense,” Csoka asked.
“I just didn’t choose to follow this course of events,” Sweeting told the court.
She had previously told the court that she was aware that she would not have a description of the full technical details of how the implant worked in writing.
The case continues.
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