Defense Lawyers Push Judge to Reveal Secret Country that Helped FBI Wiretap the World

A team of defense lawyers has asked a judge to reveal which unnamed country helped the FBI wiretap criminals around the world by intercepting tens of millions of messages sent across an encrypted phone platform the FBI secretly managed called “Anom.”

The news provides the first substantial legal challenge in the U.S. to the FBI’s operation of its tech company, which resulted in the arrest of more than a thousand alleged criminals, tons of drugs, and over a hundred weapons.

“The bottom line is that our government knew its mass surveillance program was unconstitutional so it secretly co-opted a country in Europe in an attempt to circumvent our privacy laws. The government is now refusing to reveal even the identity of the third country,” Patrick Griffin, one of the lawyers behind the motion, told Motherboard. “Fortunately, the law in the United States guarantees all defendants a fair trial. We are confident that the government will not be allowed to use this third country as a sword in its investigation, while also using its identity as a shield to prevent our clients from mounting a defense.”

As well as Griffin, other defense lawyers John Ellis, Victor Sherman, and Devin Burstein signed the motion. The motion was filed in the Southern District of California; the San Diego FBI led the operation. “It focuses solely on the documents and information in the government’s possession related to its use of an unknown third-party country to obtain the evidence in this case. As discussed below, this material is key to defense preparations. The prosecution, however, has declined to provide this information,” the motion reads.

From 2018 to 2021, the FBI secretly ran an encrypted phone company called Anom. The phones that these sorts of companies offer are a crucial part of serious organized crime in the 21st century. Their use of end-to-end encryption allows customers to securely coordinate drug shipments, assassinations, and launder money. The FBI and its Australian partners worked with Anom’s creator turned confidential human source (CHS) to stealthily add a mechanism to intercept all messages sent across the platform. For years, Anom’s customers used a tool that instead of protecting the content of their messages, piped them to law enforcement agencies.

As part of that operation, dubbed Trojan Shield, U.S. authorities enlisted the help of an unnamed third-country in the European Union. This country collected the Anom messages before then providing them to the FBI three times a week. The FBI obtained these messages through the use of a Mutual Legal Assistance Treaty (MLAT), an agreement between parties to provide information.

Defense lawyers have previously requested U.S. authorities disclose the identity of this third country, the new motion says. The government has declined, the motion says. Now, the defense lawyers are asking a judge to force the authorities to do so, as well as identify the agency in the country with which U.S. authorities coordinated; communications between the two countries related to the Anom program; and a copy of the final agreement and any draft agreements.

“Without the requested information, the movants cannot begin investigating the legality of the intercepts nor the reliability and authenticity of the alleged evidence at the core of this case. Nor can they propose letters rogatory to obtain critical evidence from the third-party country, seek overseas depositions, hire foreign investigators to interview witnesses, or file their anticipated motion to suppress. Accordingly, the movants respectfully request the Court grant this motion,” the filing reads. Essentially, the lawyers argue they need to know the identity of the third country so they can verify that the collected Anom messages are admissible in court; that is, intercepted legally under that country’s own laws.

The motion was submitted on behalf of three men authorities allege sold Anom phones to criminals: Alexander Dmitrienko, Seyyed Hossein Hosseini, and Edwin Harmendra Kumar. Each is charged with offenses under the RICO statute, a law that was traditionally used to target mob bosses. In recent years, starting with the shutdown of Phantom Secure in 2018, U.S. authorities have used RICO powers to charge administrators and distributors of encrypted phone companies by charging the firms as a criminal enterprise in their own right.

U.S. authorities are doing the same here with Anom’s alleged distributors. The difference being that it was the FBI that secretly ran Anom, even if the sale of individual handsets was handled by people like the accused. In its indictment, U.S. prosecutors charged 17 people, including the three linked to this new discovery motion. That indictment also charged Hakan Ayik, a top tier drug trafficker and Australia’s most wanted criminal. Recently, officials in Turkey, where Ayik has a significant footprint, reportedly seized Ayik’s assets, including the boutique hotel Kings Cross in Istanbul in which he has a stake.

Joshua Mellor from the U.S. Attorney’s Office handling the Anom case said the office would respond to the motion but declined to comment further at this time.

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