(C) Alec Muffett's DropSafe blog.
Author Name: Alec Muffett
This story was originally published on allecmuffett.com. [1]
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Meta Encryption Privacy Fight Begins in Nevada State Court

2024-03

Nevada will square off against Meta Platforms Inc. in state court Wednesday over a motion to temporarily block the tech giant’s use of end-to-end encryption in its Messenger platform for some of its youngest users, a legal showdown with potentially far-reaching consequences.

This dispute, unprecedented in its scope as it targets a specific demographic from accessing privacy-enhancing technology, has drawn fire for its broad attack against encryption. A temporary restraining order against Meta could jeopardize encryption access—a privacy and security protection intended to prevent spying, surveillance, and theft—for everyone, said Gregory Nojeim, senior counsel and director of the Security and Surveillance Project at the Center for Democracy & Technology.

“The Nevada case represents an unprecedented assault on communication and security and the security of communications of people who are among those who need it the most, including young people using messaging systems,” said Nojeim, whose organization filed an amicus brief in support of Meta.

Nevada argues that encryption—which shields messages from being intercepted by anyone but the sender and recipient—makes Meta’s Messenger a “preferred method” for individuals targeting Nevada children for illicit activities. The state accuses Meta of violating its state deceptive trade practices rule, which prevents companies from deceiving consumers.

The legal tussle was prompted by Meta’s decision in December 2023 to launch end-to-end encryption as the default in Messenger, a move Nevada claims escalated the “urgency” of its effort to block use of the privacy-enhancing technology on minor Messenger accounts.

Meta rebuts Nevada’s claims, asserting that end-to-end encryption has been an optional feature on Messenger for eight years, contradicting the state’s argument for urgent injunctive relief. Meta also contends that Nevada lacks jurisdiction for the case and that the First Amendment along with Section 230 of the federal Communications Decency Act, a federal legal liability shield for tech companies from user content, bars the state’s request for temporary relief.



Encryption Protection

Central to the dispute is the essence of end-to-end encryption, which safeguards message content during transmission. While proponents laud its privacy benefits, Nevada and its supporters argue that it poses challenges for tech companies and law enforcement agencies in monitoring criminal activities online.

That debate has historical precedence, and played out in 2016 when the Federal Bureau of Investigation demanded that Apple Inc. unlock the encrypted iPhone of a deceased San Bernadino, Calif. shooter, before the agency found another company able to offer access to the device.

Although the conflict over encryption was born out of national security concerns, critics in recent years have shifted their focus to predators targeting children and spreading child sexual abuse materials. Self-described child advocacy groups filed in support of the state, arguing a direct correlation exists between Meta’s use of encryption tools and child trafficking.

The spread of child sexual abuse and exploition has sparked “public policy crisis” that lawmakers must “halt and address,"the National Center on Sexual Exploitation and CHILD Inc. wrote in an amicus brief supporting the preliminary injunction. “To that end, if Meta is forced to comply with the injunction sought by the State, countless children will be spared of the devastating, long-term harms attendant to victimization.”



America Decrypted

The Nevada lawsuit threatens encryption not just for minors who benefit from the technology, but also for adults across the country and around the world, according to a coalition of privacy and security organizations. They argue that impeding companies from providing security measures creates vulnerabilities exploited by both criminal elements and overreaching government officials. Nevada’s motion attempts to supplant a nuanced national policy that has evolved over decades, according to their amicus brief.

“Affirmatively preventing companies from providing security, as the State seeks here, creates security risks from bad actors,” the American Civil Liberties Union, ACLU of Nevada, Electronic Frontier Foundation, Center for Democracy and Technology, Fight for the Future, academic Riana Pfefferkorn, Mozilla Corporation, and Signal Messenger LLC wrote in an amicus brief. Nevada’s motion for a temporary ban on Meta’s encryption tool “attempts to substitute the judgment of the Attorney General’s office for a national policy developed over decades of discussion with multiple stakeholders.”

The legal landscape around children’s online privacy and safety is complex and littered across multiple state and federal courts. Nevada Attorney General Aaron Ford also filed civil lawsuits in January against five social media platforms, including Meta’s Instagram, Facebook, and Messenger, over allegations that they used algorithms harmful to children. While distinct from a joint lawsuit filed last year by dozens of states against Meta for features harmful to children, a win by Nevada could pave the way for court wins for other design feature challenges using product liability theory—and potentially emboldening other states to take on encryption technologies.

Should Nevada win, other tech companies might have to think twice about their own services.

“I think a lot of these companies are going to have to make a really tough decision between setting themselves up for immense litigation vulnerabilities or offering what is objectively insecure communications for their users,” said Jess Miers, senior counsel at Chamber of Progress. Chamber of Progress, a trade group that represents companies including Meta, filed an amicus brief with law firm ZwillGen in support of Meta.

The case is Nevada v. Meta Platforms, Inc., Nev. Dist. Ct., #: A-24-886110-B, filed 1/30/24.
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[1] URL: https://news.bloomberglaw.com/privacy-and-data-security/meta-encryption-privacy-fight-begins-in-nevada-state-court
[2] URL: https://creativecommons.org/licenses/by-sa/3.0/

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