Totalcrime
A true crime podcast, written and produced by Chris Summers, veteran crime reporter with more than 30 years of experience. He has been writing producing content for Totalcrime on Substack since March 2024 and is now launching into podcasting. The podcast will be a mixture of Chris narrating true crime stories from the UK and around the world, and occasional interviews with people who are knowledgeable about crime.
Totalcrime
Prisoner of the War on Encryption
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In this episode I have an exclusive interview with Thomas Herdman, who is awaiting trial in France four years after he was arrested and accused of being behind an international criminal enterprise at the encrypted app Sky ECC. Herdman tells me he is innocent and is the victim of France's war against privacy. During the French Revolution, Cardinal Richelieu said: "If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him." Herdman tells me: “That’s what’s happening to me.”
Welcome back to the uh Total Crime Podcast. This is episode 20, and uh it's been a long time coming, really, but uh I have with me, not in person, um, but on the line Thomas Herdman, who I've written about uh way back in 2024 um on my Substack, and uh people may have read about him or may not have read about him because he's um his story is not still not that well known, I think. But um hello Thomas, how are you doing? Hello, Chris. It's great to speak to you and your UK audience.
SPEAKER_00It's fantastic, thank you.
SPEAKER_01You are in uh in Paris or France or somewhere?
SPEAKER_00I'm just south of Paris in uh Seoul. That's about 20 minutes from downtown.
SPEAKER_01But yeah, we'll we'll we'll get on to uh how different it is from a Paris prison cell in a minute, but you uh will um indulge me. We're gonna start the story by going back to the spring of 2021 when um I believe you were on holiday in Central America and you suddenly um heard you'd been indicted. Do you want to take the story on from there?
SPEAKER_00Yeah, I think it was it was March 12, 2021. Uh waking up to uh six o'clock dawn in Panama. Uh I had quit my job uh in you know, related to Sky ECC for more than eight months. So I uh just kissed the whole thing goodbye for a long, long time. And then suddenly I got an email from a friend and uh it said, is this a joke? Is this an early April Fools? It was like uh uh as I said it was March 12th. No, so it wasn't. Um it took a while to sink in, then I had to do some checking. Then I saw the announcement from the DOJ, the Department of Justice in the United States. And uh yeah, I was just uh it just it just hammered me. It was such a surprise. It was such a surprise that I thought they had my name wrong. I thought maybe they got another Tom, another Thomas. Yeah, there was another Tom involved in this case, and he's charged and is actually very, very close to the founder and had founded the company along with the founder. So uh uh yeah, I was I was really devastated. Um, I really didn't know what to do for maybe a day or two.
SPEAKER_01Sorry, can you just explain what the in what the indictment alleged you had done or what was they were they were portraying you as this huge sort of Mr. Big of international crime, really, weren't they?
SPEAKER_00They were portraying me as one of the founders and one of the top people at uh Sky Global Communication in Vancouver. Uh they said that basically myself and Jean-Francois Epp, the owner of the company, were working together to sell these encrypted communication platforms, or they they said actually telephones, which was false, to organized crime groups all over the world. Uh, when in fact I was uh I was uh working for a small technology company that just started uh three years before that. Uh and uh I had been the manager of that company. That uh the company was called Lev Up, and it had a distribution agreement signed with Sky Global Communications of Vancouver. So I had met Epp maybe uh just a few times. Uh I lived close to his office, so I dropped into the office. I met him, I met his executives. Uh there were about 50 people in the company when I joined uh LEVUP Technologies in uh 2017. Um but Sky Global itself was a really interesting, good-looking tech company in Vancouver. It had signage, it was in uh Vancouver's financial district, they had been on operating for eight years, and uh they came across across as very slick and very professional, and their employees were uh quite amazing, they're tech employees.
SPEAKER_01Yeah, I mean we we'll come on to it later, but it's it's very different from a sort of the encrow chat operation or an om indeed, you know, like which were clearly sort of cloak and dagger sort of uh clandestine organization.
SPEAKER_00I mean it was they were definitely underground companies. In fact, uh Jean-Prancois Epp told us not to not to bring them up as competition, do not represent in in the industry that they are your competition. Uh he didn't want to be associated with them. And in fact, at one point they they closed off their emails so they could not communicate the two platforms together. What skies easy in Anchorage, you mean yes, they had this kind of uh a mail along with the communications, and they were able to cross platforms, okay. But uh they they didn't even want to be associated with them uh that way, so they they made it so it would just be the sky would be sky, and they couldn't communicate with those platforms.
SPEAKER_01Oh, that's interesting, yeah. Um so now later on we're gonna come about uh I think it's really interesting about the US and the Fifth Amendment and how it would probably have been very unlikely for you to have gone on trial in the US um because of what the Fifth Amendment says about due process, due process, as we call it in the UK. Um, you know, that but we'll we'll come on to that in a minute. But um now I should also explain that you're a Canadian uh national, you're not an American. But anyway, that's the US government were coming for you, as it appeared, and then you so tell me what happened from Panama.
SPEAKER_00You you flew to Spain, is it so in Panama, once I got my uh my marbles together, uh I started thinking rationally. Uh, I started searching for a lawyer. Uh and as I said, I'm Canadian, I don't know any criminal lawyers, I don't have a criminal record even in Canada, nothing even close. Uh and so uh it took me about a week to find a very good lawyer, I think. Uh I guess you can judge in the United States by how expensive they are. Uh and uh my lawyer advised me to go home, but this was during COVID. It was really difficult to get a flight. Uh, I had to get a roundabout flight through Europe to Canada. So I got uh like the first flight I could get, and it was landing in France. This is and this is the first time I'd been in France in like 30 years. So here I am in France in detention. I was actually never in France, and I had no business in France, and I had no business in the United States either, which is also uh pretty strange. But I landed in Paris and I had a I got a I saw that I had a message from my lawyer. My lawyer said basically, don't move. I've got good news for you. We've contacted the San Diego prosecutors, and they don't really want you. What they want is you to give evidence against the owner of Sky Global, and they want to make some kind of a deal. Now, this just sounds like you've seen in every uh American movie, I guess, when they try to coerce a defendant or witness into giving testimony. Uh and uh it's pretty easy to coerce when you have the power of the American government. And they were charging me with awful, awful things. Well, they still are, and it all falls under the RICO Act, which is racketeering, laundering the process uh of uh drugs and uh communicating with trans organized crime. I mean, it's just awful. I mean, myself, I don't do drugs, I've never been involved with people who do. Um, it was really shocking. But uh in Paris, they my lawyer said stay put, don't move because it could look like you were you're in flight. Uh, I really wanted to go home, but I did exactly as I was told, and then I cooperated from there in. And it took a couple of weeks, but he arranged for a meeting, and really unusually they wanted to meet in Madrid. Right. These are Americans, the American delegation from the Department of Justice. And uh in April, uh, April 25th to April 27th, I met with a delegation from the Department of Justice, top people, uh, top people from the U.S. Marshals, the IRS, uh, the San Diego prosecutors, or the San Diego um uh U.S. attorneys, they're not state attorneys, they're U.S. attorneys, the prosecution. So there were six or seven people across from me, and we did uh a kind of a discovery process, and then we uh I had uh questions or interrogation for three days. And basically what I wanted to do was cooperate, cooperate quickly and truthfully, and uh get it done with. Did you have any one uh either a lawyer representing you or or anyone sort of uh were we allowed to take minutes or record it or uh officially we weren't we weren't allowed to record it, everything was confidential and it's not a court proceeding. So it's actually called a um pre-profer agreement, which leads to what's called a proffer agreement and a reverse profile proffer agreement, reverse proffer where they give us the information that they have. Uh and take it on trace. I had you know, I brought over an American lawyer, okay. And I had a French lawyer who I hired uh before I went to France. And I thought, just in case, uh there are charges against me in the United States, I'm flying through France, I need to make sure if something happened at the airport, then I would have a represent a representative. So uh that lawyer, um Maitre Oayon, and his partner traveled to Spain with me to make sure that the passage was good. And uh I was guaranteed passage by the United States. So um when I got to Spain and to these meetings, I had my American lawyer and two French lawyers with me.
SPEAKER_01And so the they they sort of you reached a deal or you reached an agreement with the the US attorney's office or the DEA?
SPEAKER_00Yeah, I agreed to uh help them any way I could, and uh I gave them testimony for three days on on the first meeting in Madrid.
SPEAKER_01Okay, and then you were sort of well, I guess I guess you were never arrested, but you were you're allowed to go. And then how how soon after that did the suddenly appear?
SPEAKER_00Uh well after the first meeting, um, as per the agreement, I went back to Paris. Okay. Um, again, there's no reason really that I needed to go back to Paris, but that was the agreement because I'd been in Paris. And uh after a week or so, the the lead prosecutor, the uh assistant state um US attorney, uh Megan Heesh, she called my lawyer and uh made a real strange request. She asked me to move to Madrid. Now she's she's made she didn't say it directly, but she made it sound as if French could be trouble. But she was very vague about that, and um also she made it clear that she would like me in Madrid to participate in more proper uh cooperation talks and also work with the head or the bureau chief of the DEA for Europe, John S. Walter. Uh so within a week, I just packed up my bags, went to Madrid, got a hotel, and started looking for a place to stay. I got a residence and I was supposed to hunker down for about six months. It was just a temporary place, but uh it was near the embassy and comfortable, and uh they guaranteed my protection. Now, in guaranteeing the protection, they also gave me three telephone numbers I could call 24 hours a day and also told me my family would be protected if anything at all occurred. My family back in Canada. Back in Canada. So I got a fairly nice place that I could have my family come and stay with me. Uh, and uh then I participated in a few more proffer agreements. They commended me on my truthfulness. Uh, they wrote a letter to my letter to my lawyer telling me how helpful I had been. And then on June 4th, 2021, just out of the blue, uh, Spanish police were waiting outside my door to arrest me on a French Europol warrant. And uh I found out just within a few hours that they meant to extradite me to France.
SPEAKER_01Wow. And that must have come as a huge shock.
SPEAKER_00Absolutely incredible, especially the fact that it was the French I had been told that the American uh Americans called them their partners in Europe on the Sky ECC case, uh, had already been notified in many meetings as to the targets, and they were very disappointed in their partners. And I have a letter from uh the US attorney actually stating how disappointed she is uh with her French colleagues.
SPEAKER_01Yeah, and I mean we now know, you know, the the importance of this OVH server um in Roubaix in northern France, which explains why the French are involved. But did you know about that at the time? Did you know that Sky C was hosted there?
SPEAKER_00Or you know, I had heard that because of uh European data traffic, that they needed some type of redundant server for their Blackberry servers. So Sky was run on Blackberry, BlackBerry Enterprise software. The underlying software was basically a commercial software for companies. Uh, and uh much of it was the same, the same control over the device and everything that was done on the enterprise server software. Okay. So uh although they always said Sky Ecc servers in OVH, um I believe all of them were uh BlackBerry servers. But I I'd heard there was something there, but that really I wasn't uh um I wasn't one of the executives of Sky, and that's what really gets me about all this whole case, whether it was the Americans or the French, everybody thought that I was an executive of Sky, Sky Global in Vancouver. They thought I was the top, top dog there. Um maybe I'm older, maybe uh I I look more executive than these these 35-year-old tech guys. Uh but I think more than anything, they were they were looking for somebody who ticked the boxes. Um that's what they needed.
SPEAKER_01Right, yeah, that is very strange. So you were, I mean, you tried to sort of use your kind of US get out of jail cards, say, you know, from the the proffer agreement or whatever, but the the French weren't interested, they just straight put you straight on a plane and took you back to Paris.
SPEAKER_00That's right, where I stayed for four years in Fleury-Marie prison, their worst prison, maybe the worst prison in uh Western Europe.
SPEAKER_01Yeah, um I was gonna come to that.
SPEAKER_00I mean I mean confinement conditions are are the are just the worst. I mean, just the notion that you can put somebody in prison for four years and not have a trial, uh it just blew me away. I mean, I had read the European Court of Human Rights uh articles, and uh I understand now that France just pays lip service to that, and they've never, they've never really uh um abided by that. Four years is not normal. In fact, when I went in, uh there were another 200 people in my wing of the detent of the it's not a detention center, it's maximum security. And they all left during the time that was there. I was more people came in and I was the one always there. So most people were leaving after a year, two years. Uh, even if there were murderers, they were getting the trial, they were getting out. But uh me, no. In fact, people came back to the prison on their second drug charge, and they they say, Hey, Thomas, come on. You're still here. What the fuck?
SPEAKER_01So, yeah, I mean, the in the UK and and and America and the the Anglo-Saxon world, if I can put it that way, um, we have you know this ancient thing called habeas corpus, which means basically put up or shut up. You know, you you you can't put people in prison for years without trying them. Um and it I I was talking to somebody recently about Northern Ireland, um, where they they take an awful long time to come to trial, but because of that, they release people on bail, even people on murder charges get bail because of that, you know, very real underlying principle that you can't hold people forever. But obviously, in France it's very different.
SPEAKER_00Um yeah, well, they kept using multiple tactics of keeping me there. And I mean, the first one they used was bizarre. They they stated in some terms that they were afraid that another power would take me, and they didn't name the United States. And we know that the United States prosecutors and the Department of Justice were furious with the French, and there was a big rift between the Americans and the French for what they did. Uh so yeah, that was uh that was really weird.
SPEAKER_01Yeah, I mean, that was under the Biden and administration, so it wasn't, you know, uh I mean, obviously Trump has fallen out with a lot of people, but um, you know, this was this was uh prior to him or between his uh two terms.
SPEAKER_00It was always about flight and the fact that I'm Canadian. But uh Pavel Durov has a Russian passport with no extradition and uh UAE passport also for no extradition for UAE citizens. He's a citizen, not a resident, right? There's extradition for well, they commonly do extradition for residents, but he's a citizen. They got he was out in three days.
SPEAKER_01Yes, exactly. It's extraordinary that the difference there.
SPEAKER_00I mean the same prosecutor, and uh a lot of the charges are the same, they're using the same mechanisms of prosecution. Uh in that case, and I said it's the same prosecutor. Yeah, it's scary. What it's like a stepping stone. They went AnchroChat, Sky, Telegram, X, all the same, all the same.
SPEAKER_01Um, so yeah, at this point, let's talk about Sky ECC and the whole nature of encrypted phones. Now, the a lot of people in law enforcement would claim that the only people who have who need who want uh encrypted phones rather are criminals, terrorists, paedophiles, you know, bad guys, basically. Um, whereas there's a whole nother school of thought that there are a lot of people with sort of perfectly legitimate reasons, you know, journalists, whistleblowers, um, even you know, businessmen who are sort of discussing deals and don't want uh industrial espionage, um, you know, that the whole people have got legitimate reasons for encryption. Um, and there's a real sort of not a balance, but a sort of fight going on between um whether we should allow encryption or not. Um and and Sky CC came out of that, obviously. I mean, how was it explained to you by Jean-Francois Epp uh about who their market was?
SPEAKER_00Who then's interesting. But I think I think back to the the very first meeting. Uh I went with my boss to Sky Global and I sat down with Jean-Francois Epp and uh his um executive director, Alan uh forget his last name. Shu, I think. Anyway, um I met his father, and his father is a cryptology researcher uh at Simon Fraser University. He's the same age as me. And actually, I got to talk to his dad first, and I found out his passion for cryptology, and uh he didn't tell me exactly how he got into it, but he told me about his childhood that he had grown up in Cambodia, and he is a child of the killing fields in Cambodia and uh refugee from uh Cambodia, he both he and his wife. Uh many of the family members were killed, and they were left as basically orphans and brought over on uh I guess it's a uh a mission, it's like a a Catholic church in Quebec where they where they where they landed. Uh but anyway, it led him to cleaning floors, to uh doing whatever jobs he could do and study, and finally became a researcher at uh Simon Fraser University and fell in love with cryptology. But the reason you would think really that he was in the land of the free, and the one thing you could do now is you had free speech, but the way to facilitate free speech is with privacy. You cannot have free speech without privacy. And where I saw eye to eye with him is my father was the deputy chief uh of the Vancouver Police Department, and uh he was very interesting uh because he would tell me about the constitution of Canada, which is the Charter of Rights. And although he was a policeman, uh he would like hold up a letter and he'd say, you know, as a policeman, I would really like to be able to open this letter. This would help me catch crooks. But he said, Hey, I would die for the for the right to keep that letter closed. This is how important he thought that was. And uh for me, uh, although I'm I would had nothing to do with the privacy technology, this was just a company that I fell into as a gig, to tell you the truth. Um but I really found my all the bells ringing for me because I realized that privacy is something that is we're losing. We're losing very badly. And after the uh the Snowden revelations, say about him whatever you will, but he exposed something that was very important, and it's also being exposed now in Europe, too. You've got people spying on you, you've got companies, you've got governments, and they're trying to rationalize why they need to do this. It's the pedophiles, it's the criminals, it's this and that. It just we can't buy that. I mean, there were criminals when I was a kid, there were criminals when my dad was a kid, his grandfather was a provincial policeman and ran a constabulary and had criminals in their basement. They were they're always gonna talk. There are people who are always gonna have crime. To say, oh, let's get rid of our privacy, and then we'll have a society with no crime. I mean, I mean, dream on.
SPEAKER_01Yeah, I mean, it's a bit like you know, you think about phone tapping, you know, you to get um in in most countries to get a phone tap authorized, you have to get a warrant. You have to prove why you need, you know, what that person has done to sort of justify getting that warrant. But you know, breaking into an encrypted app is like without oh actually that I mean I I think they do in the UK. Uh there was a judge who sort of signed off on um the warrant to get break into encrypt chat, but um, you know, it it's it's like you know, phone tapping, listening to everyone's conversations without having a warrant, having any proof, you know. And it's also a sort of fishing expedition, isn't it? You don't know who's using it and why you're using it, but you're gonna listen to everyone's conversations, and eventually, you know, you you're gonna find a crime. That's that's not due process. That's not that, you know.
SPEAKER_00Yeah, what did what did Stalin say? Uh, show me a man and uh I'll I'll make him a criminal. Um, I can't remember the exact phrase, but uh in France they have Cardinal Richelieu who who said uh I can I can commit a man to the gallows with any five phrases. And uh I feel that's what they've done to me.