WhatsApp and the fight against terror - what lies ahead?

“In the aftermath of the tragic Westminster attacks, politicians have expressed fury at the inability of police to obtain the perpetrator's WhatsApp communication. Many spectators have suggested that new legislation must be enacted.

"Practically all countries already allow lawful interception to aid intelligence gathering. Of course, interception capabilities should expand to Over-The-Top (OTT) services and applications such as Facebook, Twitter, WhatsApp, Skype, peer-to-peer networks, instant messaging and VoIP applications. Unfortunately, a single country cannot legislate to make this happen.

"Perpetrators use a variety of sophisticated, encrypted communication channels that rely on infrastructure deployed in the cloud and located outside the jurisdiction of a single country. Services may be provided across jurisdictions, and data may roam between data centres in different jurisdictions as well.

"It would be easy to go after local operators who can be controlled by national legislation, putting them in a difficult competitive situation. OTT providers have no national licences and may not have a physical presence in a country, allowing them to elude lawful interception obligations, even if governments were determined to regulate them.

"Even when law enforcement agencies obtain communication data, they may not be able to understand it. There is a real risk that insufficiently trained police officers would draw the wrong conclusions, because it is difficult to interpret communication data outside its operational context.

"Therefore, a holistic approach is necessary, rather than hastily prepared single pieces of legislation. If more policy work were done upfront, regulators would avoid mandating regulations that cannot be applied, and vendors and operators could thus make better informed technical decisions. Above all, an internal approach is necessary, probably through the United Nations.”