WhatsApp has become one of the most popular messaging apps, with over 2 billion users worldwide. Given its widespread use, WhatsApp messages often contain important information that may be relevant in legal proceedings. This raises an important question – can you subpoena text messages from WhatsApp?
The short answer is yes, WhatsApp messages can be subpoenaed, but the process is not always straightforward. There are several factors to consider, including legal jurisdiction, data retention policies, and encryption. This article will provide an in-depth look at subpoenaing WhatsApp messages, including the requirements, procedures, and challenges.
What is a Subpoena?
A subpoena is a legal document issued by a court or other government entity that compels the recipient to produce documents, give testimony, or both. Subpoenas are used to obtain evidence and information during investigations and legal proceedings.
There are two main types of subpoenas:
– Trial subpoenas – issued to compel witness testimony or production of evidence at a trial, hearing or deposition.
– Grand jury subpoenas – issued as part of grand jury investigations into potential criminal conduct.
Subpoenas can request various types of information, including paper documents, electronic records, video footage, audio recordings, and digital communications like emails, texts, and social media messages.
Can WhatsApp Messages Be Subpoenaed?
Yes, WhatsApp messages can be subpoenaed, but there are several factors to consider:
– **Jurisdiction** – The court issuing the subpoena must have jurisdiction over the recipient. For WhatsApp, subpoenas would need to be issued in the U.S. as WhatsApp is owned by Meta Platforms, Inc. which is headquartered in California.
– **Data retention** – WhatsApp does not store message content such as texts, photos, or videos on its servers. It retains only limited metadata related to messages. This means much of the substantive content is not available directly from WhatsApp.
– **Encryption** – WhatsApp uses end-to-end encryption, meaning only the sender and receiver can read message contents. WhatsApp cannot decrypt messages to comply with a subpoena.
What Information Can Be Obtained from WhatsApp via Subpoena?
Given WhatsApp’s data retention policies and encryption, a subpoena to WhatsApp itself will yield limited information:
– Basic subscriber data – Such as name, email address, phone number, and date of account creation. This data is retained for one year after account cancellation.
– Limited metadata – Including date/time stamps of messages and call logs, but not their actual content.
– Group information – Details like group name, creation date, members, etc. for any groups the account holder participates in.
– Device information – Make and model of devices linked to the account and IP addresses.
– Account use – Such as last use date/time and status (active/disabled).
So while some transactional data is available, message content and media cannot be obtained directly from WhatsApp.
How to Subpoena WhatsApp Messages
To subpoena WhatsApp messages, the following general process must be followed:
1. **Establish grounds** – There must be sufficient justification for the subpoena, such as an ongoing investigation or litigation where the messages are deemed relevant evidence.
2. **Issue subpoena** – The subpoena must be lawfully issued by a court or other authorized government body per the rules of civil procedure.
3. **Serve subpoena** – The subpoena must be properly served to WhatsApp/Meta’s registered agent, typically by personal service or certified mail.
4. **Specify scope** – The request should specify what information is sought from WhatsApp, such as basic subscriber data, metadata, etc. based on their data retention policies.
5. **Comply with law** – WhatsApp will produce any information it retains on its servers in accordance with applicable law. Encrypted content will not be provided.
6. **Request from users** – To obtain message content, senders/recipients must be subpoenaed directly and compelled to provide content stored on their devices.
Strategies for Obtaining WhatsApp Messages
Because WhatsApp messages have limited availability directly from WhatsApp itself, here are some strategies for obtaining message content through legal means:
– **Subpoena the users** – Recipients or senders of the messages can be subpoenaed directly and compelled to provide the messages from their devices. This is the most direct method.
– **Obtain from user devices** – If law enforcement has lawful access to the physical devices, they can retrieve messages directly even without user cooperation.
– **Subpoena cloud backups** – WhatsApp messages are often backed up to a linked cloud account, which can then be subpoenaed for message data.
– **Court order for message decryption** – In extreme cases, a court may order users to unlock their devices and decrypt messages for investigation purposes.
– **Voluntary cooperation** – Users may voluntarily share messages relevant to an investigation rather than go through formal legal proceedings.
Challenges of Subpoenaing WhatsApp Messages
There are several challenges that can arise when subpoenaing WhatsApp messages:
– **Encryption** – End-to-end encryption prevents WhatsApp itself from accessing message content. Messages must be obtained from user devices.
– **Jurisdiction** – International data requests are complex and must go through proper diplomatic/legal channels like mutual legal assistance treaties.
– **User cooperation** – Recipients may try to avoid, challenge or overturn subpoenas, or simply refuse to provide decrypted message data.
– **Deleted messages** – Users can manually delete messages or set auto-deletion time periods, preventing access even with a subpoena.
– **No cloud backups** – If users don’t have cloud backups enabled, some metadata and messages may not be recoverable.
– **Multiple accounts** – Subpoenaing a single known account may not capture messaging if users communicate across multiple accounts.
Notable Cases Involving WhatsApp Subpoenas
There have been a number of high profile cases where WhatsApp messages have been subpoenaed:
– **Lieber criminal case** – Prosecutors subpoenaed WhatsApp messages from Martin Shkreli’s associate Evan Greebel to help convict Shkreli of fraud.
– **Divorce cases** – WhatsApp messages have been subpoenaed in numerous divorce proceedings to establish grounds or settle financial terms.
– **Durst murder trial** – Robert Durst’s messages were used as evidence of planning his friend Susan Berman’s murder.
– **Stone investigation** – Messages were sought from Roger Stone’s associates in the Mueller investigation into Russian election interference.
– **Bezos lawsuit** – Jeff Bezos sued the National Enquirer’s parent company over leaked text messages about his extramarital affair.
– **UK legal cases** – UK courts have compelled decryption of WhatsApp messages in cases involving drug trafficking and underage sex crimes.
WhatsApp’s Stance on Subpoenas
WhatsApp provides the following guidance on subpoenas and preservations requests on its website:
– WhatsApp cannot provide message content in response to subpoenas since it is protected by encryption. Only non-content data can be provided.
– Requests should be narrowed to target specific accounts and timeframes. Overly broad requests may be objected to.
– WhatsApp regularly fights back against requests it deems illegal or invalid to protect user privacy.
– WhatsApp only preserves account information pursuant to a valid preservation request related to official criminal investigations.
So while WhatsApp aims to protect user data and privacy, it does comply with legal data requests to the extent possible based on its technical capabilities and policies.
Conclusion
In summary, WhatsApp messages can be subpoenaed, but users should not expect that messaging content will be available directly from WhatsApp itself given its encryption and data retention policies. Obtaining the content requires compelling the message senders or recipients to provide the information from their devices through legal means. WhatsApp provides limited subscriber information and metadata in response to valid subpoenas. While challenging at times, legal authorities do have strategies to legally obtain WhatsApp evidence for investigations and litigation as needed through proper procedures.
| Type of Data | Retained by WhatsApp? | Obtainable by Subpoena? |
|---|---|---|
| Message content (texts, photos, videos, audio) | No | Only from user devices |
| Subscriber information (name, phone number, email) | Yes, for 1 year after account cancellation | Yes |
| Message metadata (dates, times, senders/recipients) | Limited data retained | Partially available |
| User device information | Yes | Yes |
| Cloud backups | No, stored by user’s cloud provider | Can subpoena user’s cloud provider |