On 20 March 2018, the Supreme Court of Russia dismissed the claim by a representative of the Telegram messaging service, claiming to abolish the Order of the Federal Security Service of Russia (“FSB”) dated 19 July 2016 requiring messaging services to provide decryption keys to FSB which may allow the security authorities to read correspondence by Telegram’s users.
So far the Supreme Court has only published the operative part of their decision, meaning that no reasons for the judgment are available at the moment. However, the negative outcome for Telegram was fairly obvious long before the decision.
Main arguments in the case
Argument 1: The order establishing the procedure for providing decryption keys was adopted by FSB; however, they were not entitled to do so. The order should have been adopted by the Government of Russia based on Article 10.1 of the Federal Law of Russia No. 149-FZ “On Information, Information Technology and Protection of Information” dated 27 July 2006.
The counter-argument of FSB (which was also supported by the Ministry of Justice of Russia and the General Prosecutor’s Office of Russia) was that the procedures for cooperation between messaging services and the security authorities should indeed be adopted by the Government of Russia. However, they agreed that the procedure for providing decryption keys is not covered by this rule and that FSB acted under the direct order of the President of Russia to develop the relevant procedure.
Argument 2: The order violates the criminal procedure laws allowing investigation authorities only to gain access to private communication based on a court decision.
The FSB’s counter-argument was that they are not breaching these rules, since receiving decryption keys does not mean that FSB would violate the laws and would gain access to communication without a court decision.
In essence, this means that FSB would possess decryption keys, but they would only use them on the basis of a court decision. It would be difficult (if not impossible), however, to monitor whether FSB would in fact do so.
Argument 3: The order contradicts the federal laws on counteracting corruption. The relevant provisions of the order are too general and allow FSB too much room for discretion. FSB simply disagreed with this argument, saying that the order and their actions are within the boundaries established by the law.
Apart from the above arguments used in the case, the representatives of Telegram have frequently commented in the press that they are unable to provide the decryption keys due to the nature of end-to-end encryption technology, while FSB believes this is technically possible.
It appears that Telegram will not provide FSB with any keys and will therefore be blocked in Russia. There is an established procedure for blocking messaging services which was already tested on other services (such as Line and Zello). However, the question remains how blocking will be technically done. Theoretically, the authorities can block specific IP addresses of Telegram which can be problematic if Telegram uses a lot of IP addresses and is able to change them quickly. Some technical specialists claim this is how Zello currently bypasses the blocking, i.e. by frequently changing their IP address. However, even if Telegram took this approach, it would still decrease the number of users, since frequent unavailability of the service would be inconvenient for most of the users.
The second option could be DPI (deep packet inspection) equipment which would search for Telegram in online traffic and decrease its capacity. However, such an option has never been tested in practice by Russian telecom operators, and according to their representatives the operators are not technically prepared to do so.
Even though the prospects of being blocked are starting to be more obvious for Telegram, on 22 March 2018 Telegram brought an action before the European Court of Human Rights. Thus the service intends to use all available legal options and the story is still far from over.