As recently as last month, Christopher A. Wray, the director of the Federal Bureau of Investigation, was pushing tech companies like Facebook to give law enforcement access to what he called “warrant-proof encryption.”
It was the latest salvo in an intensifying battle between the government and Silicon Valley over so-called end-to-end encryption, which protects users’ data from being read by outsiders, including F.B.I. agents with a warrant. Mr. Wray, and Attorney General William P. Barr have been pushing tech companies to roll back encryption, with Mr. Barr going as far as to imply that companies like Facebook and Apple that offer end-to-end encryption were “illegitimate.”
But a new wrinkle surfaced in the government’s arguments late Wednesday, after court documents in a separate matter between WhatsApp, which is owned by Facebook, and NSO Group, an Israeli spyware maker, revealed that Mr. Wray’s law firm previously argued in favor of strong end-to-end encryption while representing WhatsApp in a sealed 2015 case involving the Justice Department.
In the earlier case, which has never been made public, Mr. Wray, then a partner at King & Spalding, was hired to “analyze and protect” WhatsApp’s software from a Justice Department effort to weaken its encryption in order to conduct wiretap of a WhatsApp user’s data.
The arguments made by Mr. Wray’s firm in favor of WhatsApp’s encryption may undercut his recent calls to push tech firms — including his previous client WhatsApp — to roll back encryption, a move many security experts have likened to a government “backdoor.”
“Director Wray cannot comment on the scope of his prior representation of WhatsApp or the legal advice he provided to the company,” the F.B.I. said in a statement. “Like all other lawyers, his duty of loyalty was to his client, and he did not put his personal views ahead of his clients’ interests or allow them to affect the legal work he did for clients. Today, as director of the FBI, his duty is to act in the best interests of the American people.”
Details of Mr. Wray’s involvement in the 2015 case were made public in a WhatsApp court filing unsealed Wednesday involving WhatsApp and NSO. WhatsApp is asking a Northern California District Court judge to disqualify King & Spalding from representing NSO, citing conflicts of interest, given the firm’s previous representation of WhatsApp.
According to the unsealed documents, Mr. Wray was one of several King & Spalding lawyers who represented WhatsApp in its matter involving the Justice Department. Documents related to the 2015 case are still under seal because, according to the WhatsApp filing, they “contain and summarize confidential information based on a nonparty to this case, the U.S. Department of Justice.”
The New York Times learned of the 2015 matter through confidential sources. At the time, the Justice Department was also engaged in a court battle with Apple, pushing the company to unlock an iPhone belonging to one of the gunmen in a shooting in San Bernardino, Calif. The government ultimately dropped its case after security researchers helped them bypass Apple’s security.
In WhatsApp’s case against NSO Group, lawyers also want King & Spalding sidelined because they say the law firm “possesses WhatsApp’s confidential information that is material to this litigation.”
In a statement Thursday, a WhatsApp spokesman reiterated the company’s commitment to making end-to-end encryption the default option for WhatsApp messages and calls, and would continue to defend its technology in courts.
Of its current dispute with NSO, the WhatsApp spokesman said: “The circumstances in which King & Spaulding attorneys represented WhatsApp in the past pose serious ethical concerns for their representation of NSO today.”
In testimony before the House Judiciary Committee last February, Mr. Wray singled out Facebook, telling lawmakers, “We have to have mechanisms to allow lawful access to protect flesh and blood Americans.”
He was responding, in part, to an announcement last year by Mark Zuckerberg, Facebook’s chief executive, that Facebook plans to extend end-to-end encryption to Facebook’s other platforms, including Instagram and Facebook Messenger.
In his February testimony, Mr. Wray said those plans would be a “dream come true for predators and child pornographers.”
“If Facebook moves forward with the plans they have at the moment, we will be blinded,” Mr. Wray told lawmakers. “They will blind themselves and law enforcement, no matter what process this committee comes up with to allow us access to that content. I don’t think that’s a decision Facebook or any one company should be making on behalf of the American people.”