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Nevada v. Messenger: Why state wants to bar encryption for minors on app

Updated March 21, 2024 - 8:00 pm

A District Court judge postponed ruling on whether to bar end-to-end encryption for minors using Meta’s Messenger app, deciding that she first must determine if her court has jurisdiction.

District Judge Joanna Kishner heard arguments over a two-day hearing from the state of Nevada and Meta attorneys regarding a case that could have a significant impact on social media in the Silver State — and could set a precedent for action in other states.

In January, Attorney General Aaron Ford filed lawsuits against Meta-owned social media platforms Facebook, Instagram and Messenger, as well as the social media companies TikTok and Snapchat, alleging their algorithms have been designed to deliberately addict young people.

This week, Kishner considered a motion from the state asking the court to restrain Meta from using end-to-end encryption on its Messenger app when used by people under 18.

The state alleges Meta violated the Nevada Deceptive Trade Practices Act by misrepresenting its Messenger app. It argued that Messenger is a preferred method for child predators to interact with Nevada minors because of its end-to-end encryption feature and that Meta did not tell consumers of the potential dangers.

Nevada brought forward Anthony Gonzales, an investigator for the attorney general’s office on child sexual exploitation crimes, and Chris DeFonseka, a digital forensic analyst, as witnesses. They said child predators use Meta’s end-to-end encryption to hide from law enforcement and lower the likelihood of getting caught. They also said end-to-end encryption makes it more difficult to do their jobs and investigate child predator cases.

“There are sadly, many, many sick adults who are trying to take advantage of children and abuse children,” said attorney Michael Gayan, representing the state. Predators are persistent and look for any opening they can find to connect with a child, he said.

Meta’s attorneys, argued that end-to-end encryption is used by many other social media platforms — including iMessage and Zoom — and it is considered more secure.

Attorney Timothy Hester, representing Meta, said that violating the Nevada Deceptive Trade Practices Act requires for a practice to be “grossly unfair to consumers.” He said the state has not shown that Meta does that. End-to-end encryption is a crucial benefit for consumers, he said.

Antigone Davis, the global head of safety for Meta, testified on the work Meta does to protect children on their apps and how it sends data to help law enforcement investigate potential crimes against children.

Meta has implemented several policies regarding child safety, according to Davis. Adults, for instance, cannot directly message a minor if they’re not directly connected to that minor, Davis said. The company looks at suspicious accounts and removes them from the platform, she said.

Even though messages are encrypted, Meta collects data that alerts the company to any potential child safety issues, such as if a minor attempts to block someone, Davis said. It sends those reports and cyber tips to the National Center for Missing and Exploited Children.

Davis also highlighted the project Lantern, a technology coalition that aims to prevent that kind of activity. If a predator tries to connect with a minor on a Meta platform and then move the conversation to another platform, Meta can share information with that platform, Davis said.

She also discussed the safety benefits of end-to-end encryption. A teen for instance, might send something intimate to another teen, and end-to-end encryption protects their privacy, Davis said.

“I don’t think inability to screen messages is a blind spot,” she said. “I think it’s crucial to people’s safety.”

Gayan said that there is no evidence of someone hacking into children’s messages.

One key piece of the puzzle, however, is whether or not the District Court has authority to hear the case. Meta’s attorneys argued it doesn’t, as Meta is not only a national but a global company. The state says it does, as Meta operates a business license in Nevada and has users who live in Nevada.

Kishner decided that before she rules on whether to bar end-to-end encryption for minors, she will hold a hearing to determine the jurisdiction. That hearing has not yet been set.

If the judge allows the state to block encryption, it could set a “problematic precedent” that would allow other states to make similar decisions, according to Benjamin Burroughs, a UNLV professor of emerging media, whose research focuses on digital media.

“Traditionally encryption has been one of the primary ways to actually secure privacy,” he said in an email. “Children and all users can potentially benefit from encryption that can provide enhanced privacy.”

Contact Jessica Hill at jehill@reviewjournal.com. Follow @jess_hillyeah on X.

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