In pursuit of suspected drug traffickers last year, authorities in Harford County took the investigative step of getting a judge’s permission to listen in on the target’s phone conversations.
But in a rare move, they also were able to secure a wiretap for his Facebook page, enabling them to listen in on audio calls placed through the app and monitor activity on the social networking site.
It’s common for investigators to get warrants to collect information stored within social media accounts. But the Harford case, authorized by a Circuit Court judge in February 2020, was one of only nine social media or digital app wiretaps applied for by authorities in Maryland last year, according to data reported to the Maryland Judiciary.
People are increasingly relying on social media apps to communicate, instead of phones lines and text messages. Some apps — including Facebook and Instagram — allow people not only to send messages, but make audio calls.
Judiciary reports show authorities in Maryland had never used a social media or app wiretap until 2018, when four such wiretaps were obtained: Anne Arundel received a wiretap for an app, while Dorchester and Talbot counties received social media account wiretaps.
William Jones, the Dorchester County State’s Attorney’s Office, said he did not want to discuss which social media site his office wiretapped, but also downplayed its impact.
“Like a lot of other investigative techniques, sometimes things work, sometimes they don’t,” Jones said. “I can’t say we’ve hit any home runs. It’s not like it’s been a windfall.”
What’s available to investigators depends on whether the communications are end-to-end encrypted. Experts say authorities — despite attempts to force companies to allow them to do so — cannot listen in over encrypted phone calls using the wiretap warrant, while other messaging services carry an option of encryption that exposes the communications if not enabled.
While Facebook and Instagram services are not encrypted by default, users can enable that feature manually each time they begin a new message thread. Other popular apps and devices, such as WhatsApp and iPhone’s FaceTime are end-to-end encrypted by default, making it impossible for law enforcement officials to listen in.
“I think there’s a reality that when you have a system that allows for users to create content to message others, it will be a valuable source of investigative leads for law enforcement,” said Aaron Mackey, a senior staff attorney for the Electronic Frontier Foundation. “What this sounds like to me is use of existing law to access communications. ... It is perhaps novel that they have deployed it in this particular context, and law enforcement is realizing that they have this capability.”
Riana Pfefferkorn, of Stanford’s Internet Observatory, said it was not surprising that Facebook would comply with a wiretap warrant.
“When Facebook has the technical capability to comply [with such a court order], they do so,” Pfefferkorn said.
Pfefferkorn noted that Facebook announced earlier this year that it will make its direct messaging service for Facebook Messenger and Instagram encrypted by default sometime next year.
“A side effect of switching to encryption is that they will no longer be able to comply,” she said.
Facebook did not respond to requests for comment for this article.
Facebook successfully rebuffed the government from requiring it to provide a backdoor to access encrypted communications in a California case in 2018. Prosecutors tried to hold Facebook in contempt after the company refused to help investigators wiretap its Messenger app, but a judge ruled against them.
The case garnered the attention of the ACLU, the digital privacy group Electronic Frontier Foundation, and media organizations, who sought unsuccessfully to learn more about the sealed case.
Mackey said law enforcement should not be able to monitor everything.
“In a society that’s actually free and has meaningful restrictions on government, people should be able to have secure conversations that are not subject to government surveillance,” he said.
In the Harford case, the disclosure was made in a recent government filing, showing that Harford County Circuit Court Judge Angela Eaves granted the Harford County Narcotics Task Force a wiretap on the Facebook account of a man named Reginald Bolden.
Bolden is one of 22 people charged in the case — nine of them face federal charges, and the case is being handled by Christopher Romano, a longtime assistant U.S. attorney who retired and joined Harford State’s Attorney Albert Peisinger’s county staff. Authorities traveled to Tucson, Arizona, as part of the investigation, and say they seized 28 guns, more than 2 kilograms of cocaine, fentanyl pills, cash and cars.
Peisinger said his office simply realized that calls were being made over Facebook, and thought to write up an order requesting to listen in. “It was just good police work,” he said.
The wiretap application is sealed, but prosecutors discuss in the filing how Facebook assisted in helping with the tracking.
“There was a failure on the part of Facebook to initially include message content and that Facebook was attempting to address the problem,” Romano wrote. “Ultimately, Facebook corrected the problem and investigators were able to intercept message content over C line.”
Defense attorneys for Bolden declined to comment on the case.