Judge equates encrypted chats with private thoughts in would-be kidnapping case

Three men who allegedly plotted to kidnap Michigan governor Gretchen Whitmer will face charges of gang membership, felony firearm possession and providing material support for terrorist acts, but not making terrorist threats. According to a report from the Detroit News, the reason 12th District Court Judge Michael Klaeren dismissed that last charge stems from the way the group interacted with each other. Rather than coordinating out in the open on platforms like Facebook, Joseph Morrison, Pete Musico and Paul Bellar — along with four other men with ties to the Michigan militia group Wolverine Watchmen — used private, encrypted chats to communicate.

Under Michigan law, a person is guilty of making a terrorist threat if they "threaten to commit an act of terrorism and communicates the threat to any other person." By their nature, however, private chats are largely inscrutable to anyone who isn't part of it, which makes proving that specific threats were made and shared difficult.

"There has to be some form of intent here to incite mayhem," Klaeren said, before noting that using an encrypted communications service was not unlike "thinking the thought to yourself."

Klaeren's assertion sounds naturally off-base at first — after all, the act of "thinking the thought to yourself" implies an audience of one, while group chats are inherently methods of sharing thoughts with others. His argument seems especially chilling when one considers the precedent it may set. If a terrorist plot is organized and threats are issued solely within the confines of an encrypted conversation, does that mean the threat itself never existed? Courts continue to grapple with the rise of highly secure messaging, but on the whole, it's hard to say. From an evidence-gathering perspective, however, these secure chats may represent a dead end for this particular investigation.

Late last year, FBI Special Agent Richard Trask testified in federal court that the bureau's investigation into the plot was stymied not just because the group used the secure messaging apps Threema and Wire, but because at least part of their conversation data was stored on servers overseas. Trask's investigation was largely focused on six other conspirators — not the ones currently facing trial in Klaeren's jurisdiction — but he noted in a related affidavit that the information the FBI did gather on the group's motives and plans almost exclusively came from confidential informants who met with suspects and gathered information in-person and on phone calls and video chats.