'I'm scared': Thomas Herdman Interview Part II

This is the second part of my interview with Thomas Herdman, the Canadian businessman who has been waiting for more than five years to go on trial in France accused of setting up Sky ECC to help organised criminals do their deals in secret. He tells me the real reason why the FBI wanted to close down Sky ECC and tells me why France's legal establishment has cast him as the digital bogeyman and needs to find him guilty in order to "save face".  

Transcript

SPEAKER_02 0:00

Hello and welcome back to the Total Crime Podcast. I'm Chris Summers. This is episode twenty-one and it's the second part of my interview with Thomas Herdman. Uh if you heard the first episode and you really should listen to it first, episode twenty, um we spoke about how he was uh first indicted by the Americans and then arrested by the French. And in this episode we talk a bit more about what the French say, uh what the case is against him, and uh we end up by looking forward at where he stands now and and what will happen at the trial, which is due to take place in October this year. It's a really interesting uh interview. Okay, so you've explained it very well uh so far. So I'm gonna just read I've got here uh a copy, a rather tattered copy of Darkwire, the book by Joseph Cox, um, which is appears to be very well researched and has a lot of um cooperation from the FBI about uh the history of uh encryption and how they set up this Anom encryption app to basically entrap criminals to get them to buy uh encrypted phones which they could then directly sort of listen into because they had a sort of built a back door into it. But he then page 75, he goes, he refers to you. Um and I I I'm gonna ask you about this because I know you you've got a bit of a bone to pick with this quite rightly. Um after US authorities opened their file on Sky, they managed to catch Thomas Herbman, an international distributor of Skyphones, allegedly talking about how the product could be used to facilitate drug trafficking. The government's evidence against Herbman was some of the best an investigator could hope for. In one alleged conversation, when someone asked Herb Herdman if it was possible to use sky devices to organize international cocaine shipments, Herdman essentially repeated back to the person, yes, you can use these phones to organize international cocaine shipments. Herdman also allegedly went on to discuss destroying evidence.

SPEAKER_00 2:18

Now, um, yeah, you uh tell me what's what what's your problem with that um chapter or that you know few sentences this chapter is somehow referring to evidence that was that had to do with an Los Angeles meeting that I attended to way back in uh September 2019. Now, leading up to that meeting, uh, I should tell you the genesis of the of the whole case, at least for me, was in July 2019, I received an email. And that email was a came from a contact form of the public website of Sky Global. So that went to the company, to the support workers, to the support manager, maybe to an executive of Sky who thought, hmm, who should I give this sales lead to? And uh they had a number of distributors all over the world that were working for them, but no one had any agents in the United States, no vendors in the United States. So they thought, well, we probably will give Lev Technologies uh a kick at the can here, uh, even though they don't have any US business. And I certainly did, didn't have any US business at all to manage. So I got this email that came around to me, which is should tell you in Canada, I'm not sure about the UK, but uh a law enforcement officer cannot send a random email or something that's going to be distributed who knows where, like a pinball machine, and then land in their box and then go after them. That's called entrapment. Right. Uh, and it's an abuse of power, and it is against the Charter of Rights of Canada. Uh uh anyway, after getting this, I did what I do. I called them to find out uh what it was, what it was they needed, and then communicated with them for maybe uh two months before going to Los Angeles. And during that two months, there was never anything, there's nothing in the email, and I have the email, there's nothing to do with drugs, there's uh nothing untowards in in any of that preceding the LA meeting. And uh I still don't know why I really needed to go to Los Angeles, but my boss told me I had to. And uh I hear that Jean-Francois F. wanted American business, so I wanted to look like uh I wanted to get some business for him, of course. I could be the I could be the hero to come back with some American business that nobody else had. I mean, I had tried to do uh have other people do business in the United States, but for some reason Sky Global, I mean, you couldn't give it away in the United States. Um maybe maybe they don't have criminals in the United States.

SPEAKER_02 5:34

Yeah, I think uh that's yeah, but can you can you tell me about that meeting? Because I think you told me about it before that they these guys came over as kind of shady, or they how how were they acting?

SPEAKER_00 5:48

No, they they didn't come across so much uh like that a little bit shady, but more a little bit goofy and awkward. Um, they didn't really have anything to talk about because uh okay, we've you've read the website, you know what the platform is, you know it's a secure platform. Is what can I tell you? I mean, if you just want to get to know me, great, but uh do you have some business for for me?

SPEAKER_02 6:15

Well were they asking obvious questions like you know how much will they cost?

SPEAKER_00 6:20

Or but they already knew that already. And in this in in the states, it was actually it's actually quite cheap. Um, I think it was uh about 600 US dollars for six months, so it's about a hundred dollars a month for that extra, extra security, not that bad. And uh as I said, it was an awkward meeting, but I'll tell you what they talked about. It's kind of funny. They they asked me, you know, can you use this on a ship? And it's kind of a dumb question, right? Can you use a cell phone on a ship? Well, if you're too far offshore, you don't get a signal, so you can't use it unless you attach to Wi-Fi. And I think I understand that some ships have Wi-Fi if they have a satellite system on their ship, and you can change to Wi-Fi, but your level of security then changes because you Wi-Fi has an international mapping system. So I just stuck to the facts. So perhaps that is twisting to international helping with international cocaine shipments, but that's so they didn't actually ask questions like that, you know. No, they they no, there was never terminology of drugs used in that meeting. Okay, and now they did then they talked about Bitcoin. Now, in in in Bitcoin, they asked me, do I know anybody, just very casually, do I know anybody uh who works with exchanges, Bitcoin exchange in Canada? Now I took that to mean Bitcoin exchanges, really, uh these exchange houses. And I know executives in several of the exchanges in Canada, and I didn't elaborate because it was super casual conversation, but perhaps that's now helping the money laundering of uh international criminals and the proceeds of cocaine, although none of that was talked about.

SPEAKER_02 8:33

No, well, I as far as I'm aware, uh, Bitcoin or cryptocurrency is not illegal.

SPEAKER_00 8:38

Uh and it it's not illegal. And in fact, uh our company, uh, the company I work for had uh lawyers go over it and say, well, it's we can take payment in Bitcoin. As long as as long as we need we need a payment processor, uh an exchange house uh that attaches to your bank. And that's what we did. We know by now that Bitcoin is not an anonymous exchange system, and when you're attaching it to your bank account, it's certainly not meant to hide anything. So um we've never the money went through the went through the company and we pay tax on it.

SPEAKER_02 9:23

And when it when it came down to your you being indicted in your meetings in Madrid, did they they never sort of suddenly produce a um you know covert recording of your meeting in Los Angeles and haha, you you said all this.

SPEAKER_00 9:40

Oh, they presented the they present they presented the uh the trans kit transcripts and the recording of the meeting, and we all listened to it. So I had three lawyers, one on the phone. So I guess we could say there are four lawyers listening to the fact that drugs were not mentioned in that meeting. I didn't really, I didn't like these guys, and then the fact that I'd gone all the way down to Los Angeles, and then they were talking about at some point buying three three telephones. Well, we don't sell telephones, we sell the platform application, right? But actually, I had warned them we don't have a vendor there, and there's a lot of it's it's technical. Uh things things happen to the software and has to be reinstalled. Uh and you need it's better to have a local vendor, but we don't have one. And the reason I actually went down there was in hopes that perhaps they would be uh be able to become vendors in Los Angeles, not to sell them anything at all. Now, what the French have somehow translated in their documents is that I sold them phones in this meeting, and uh it hasn't. Now, those transcripts have never become public, so Joseph Cox didn't have them. Uh, they were not given to the French, even though the French asked for them. So the minutes of those meetings or the actual transcripts of the meetings have never gone to anybody. The French prosecutor was waiting for four years. Really, that's the reason I was in prison, because she was hoping to get the transcripts from the Americans. But let's face it, why would the Americans want to appease the French after they went and screwed them over? It's actually bad for me because I would like to have those transcripts shown in the meeting. In the courtroom, excuse me.

SPEAKER_02 11:47

So just uh in the book, why he I mean he sticks a couple of allegedly in there, but it's a like it's a pretty damning, it makes it say it sound as if you have said that. Um not attributing it to you know the FBI or or DEA or an attorney or prosecutors, it's just sort of stated as almost a bold fact, even though it's an allegedly, you know.

SPEAKER_00 12:12

There's no source, and I'm I can only say that in my conversations with him, I believe he has told me that it was a conversation with Andrew Young, the uh US prosecutor at that time. But if he did, then that's a lie. Yeah, that would be that would be a big thing to call the um the prosecutor a liar. So it's can't be.

SPEAKER_02 12:41

It sounds like were you to face trial in the US or France or or wherever, the trial would be thrown out by any sort of judge on day one. But tell me uh where you're at now. You know, we're we're um five years almost to the day, well, actually to the day on um you know when you were arrested by the French.

SPEAKER_00 13:02

Yeah, June 3rd, 2023. Um, yeah. So where where 2021?

SPEAKER_02 13:09

Um with a trial, uh I I think you told me at one point that you thought that the um the French were just bluffing and they would never actually bring you to trial, they were just trying to pressurize you into I don't know, making a confession or something. But but you are actually got a trial date.

SPEAKER_00 13:26

Well, I think the French committed themselves when they took me from the Americans. And uh I mean I learned over the over the five years, it's been five years now, that they needed someone to anchor this case in order to rationalize that seizure of data at OVH in Robet. They couldn't just say Sky Global is a criminal organization without having somebody in prison in France. Now, there's no way they're going to get anybody from Canada because Canada's judiciary has not cooperated, but I actually can't Canada looked at the evidence, even in my case, when the French asked to seize my bank accounts, they asked four times, giving French evidence. And the Supreme Court of British Columbia said no, that's not evidence. It basically said you have provided no evidence.

SPEAKER_02 14:42

Yeah. Can I um just ask about um the Fifth Amendment? So in the US, you have to have this due process, and that means that you have to know exactly where the evidence comes from, and that means you have to prove where, you know, how even how the hack worked. So back in I I know EncroChat was um sort of uh spring to June 2020 when that was hacked. They again hacked into the OVH server and they were listening in, you know, for a while, and then um it sort of closed down when the people behind EncroChat you know realized what was going on. Can you remind me of uh Sky Ecc? When when was the sort of the when did they close that down and when did they hack into it? Um and have there been many sort of prosecutions? I know there was one in Belgium, which was supposed to be the one of the main prosecute you know cases to come out of Sky Ecc.

SPEAKER_00 15:46

Well, uh based on the server evidence and the chats that were taken from the server, I I I my number could be wrong, but I'd heard of about 6,000 individual prosecutions. Right. So it's and that has been in Belgium and Holland. And even looking at at Darkwire, uh, it's very well documented that the investigations were split. It was supposed to be split between the Americans were to go after Sky Global, and the strategy was to shut them down and migrate some of the criminal users to this Roach Motel kind of thing, the called Anom, another mess uh secure secure messaging service, but run by the FBI. So even before coming to me, they they had meetings and already had a strategic goal. They're going to shut down the company because it's a competition for their own Roach Hotel, uh, they're going to shut it down and move those people over. And they and they did that. And uh San Diego prosecutors were going to go after Sky Corporate European through Holland, Belgium, and then later France was to go after actually criminal users of the platform. And those criminal users are right where you would expect them in the criminal areas that have always been criminal, which are the ports of uh Amsterdam, Rotterdam, uh, Antwerp, and so on. Uh, there's nothing new in the criminal world.

SPEAKER_02 17:40

It was all Belgium and Holland, yeah.

SPEAKER_00 17:42

Whether they were using BlackBerries or whether they were using pagers or whether they were meeting under bridges, um, the ports have been uh source of criminality for a long time. So, anyway, the investigations were really split in that way. But what happened was the Europeans now had to justify taking that mass data. So, in order to do that, it looks like the French jumped the fence, screwed the Americans because I happened to be in Madrid cooperating with the American government, and they took a chance. They knew I was there. They say they we don't know, but they knew, and uh they took a chance and thought, well, this can be our anchor. And the Americans had already told them that I was the top this and that. So they're the ones who embellished, just as they you see here in Joseph Kox's book, they said the same things. So I think the French thought they could get me, start the investigation on me, and it would be easy to show that I was a criminal. And all they had to do was wait for the evidence from the Americans because they already did the work and told them about this. But the Americans they sent them part of their information, it's truncated, and there's nothing to do with the drugs there.

SPEAKER_02 19:18

Yeah, but what what I've never understood, I totally understand that is that was the tactic to to close down sky, you know, because it was, you know, and then it would drive loads of traffic to their ANOM, which is where they want, you know, it's like a like a barbing.

SPEAKER_00 19:32

You know, it's like I mean, it's an it's an amazing, groundbreaking thing for uh international policing to get together to that extent to create uh an app and then drive criminal users to it. But at the same time, it this was against the law in the United States, it was against the Fourth Amendment.

SPEAKER_02 19:58

Yes, that's why I don't understand why the FBI must have spent an enormous amount of money on Anom, but it's not going to get any prosecution, they never got any prosecutions because you can't prosecute people in America on evidence when you can't prove exactly how you you know hacked into the uh you know um encryption or whatever, you know, or even with an om, you know, they can't they can't do people.

SPEAKER_00 20:26

It looks it looks like the American prosecutors were uh playing a game of fly low, fly fast. In fact, that was quoted by the uh head head prosecutor Andrew Young uh in Joseph Cox's book. Uh and after three years, Andrew Young gave up. He quit for precisely that reason. Washington would not allow him to use the mass data from the Anon gathering of the data in order to prosecute US uh citizens. They said you have to get a warrant for each individual person, but they continued using this in other countries, and it's so why the servers couldn't be located in the United States, the FBI secretly located them in Lithuania. Yeah, the Lithuanian Lithuanian police lied to the judiciary and didn't tell them that the FBI was involved. Okay, yeah, so there's like one scandal after another, but it's all for the common good. Uh but at in the end, that information was laundered to the Swedes and to Denmark and to Holland and to Belgium, and they all used this data, which they could not have done themselves. Even if they didn't use it in the courtroom, they used it. Secretly to identify these people.

SPEAKER_02 22:04

Ask one question, which I think it may some people listening might think it's a bit of a you know an omission that I haven't asked you already. Who who were what was your job and what who were you sort of selling uh Sky CC to? You weren't actually you weren't a vendor yourself, you were sort of a middleman distributor. How did the process work? Um you never, you know, that you know, you never met sort of Serbian mafia bosses or what who were you you were you were just finding vendors to sell on the phones.

SPEAKER_00 22:35

I was never blindfolded and taken into the jungle to meet uh the heads of crime organizations. No. Um, so in fact, um Sky was organized as uh Sky Global was the developer and service provider, and they were partnered with BlackBerry and uh some other communications firms in Canada like Rogers. Rogers is the biggest communication platforming in Canada, yeah. So there was solidly working as partners in there, and everyone knew the business. This is uh had signage and a beautiful office and so on. Uh, and then I was working for a company with a distribution agreement with Sky Global, which meant that they could use the Sky Global website and they could uh get vendors in different countries, not Canada, not Australia, and actually not uh Northern Europe. And uh so I was assured that number one, I would never meet an end user, and that end user anonymity and user privacy and security was that was the whole reason for this platform. It is supplying privacy, which is legal. And we used to wonder well, who's using this platform? Are they whistleblowers? Are they criminals? Are they whatever? We had no idea. And my job was to manage uh vendors in different countries, that basically distributors down chain, uh, who would buy a number of uh called activations or subscriptions and buy them in bulk. And uh this level company would get a hundred or two hundred dollars on each six-month sale. And those vendors would come to Sky Global website, sign in, use the SIM card activation, and then they would set up the phones in their local area. So we didn't even uh we hardly even knew who our vendors were, except for the fact that I took the time to actually travel to meet them to make sure their offices were done properly and their everything was the way it was supposed to be.

SPEAKER_02 25:07

Sorry, can you just tell us where some of those vendors were based?

SPEAKER_00 25:10

Or uh we had vendors in South America, uh and uh also ended up having some vendors in Europe. Uh it was kind of accidental. But uh and uh as far as company policy goes, we weren't supposed to have them, but we were tolerated. And then in 2019, Sky Global passed a group of uh Australian clients to LEVUP as what they said was a kind of a reward. So these were clients that we had no idea who they were, uh, and uh they got dropped in to uh live up. And what about and send their job was basically to onboard them, make sure they were trained right, uh, to do the billing, to do the reconciliations, and to make sure that they were paying their bills. And I so I was talking to vendors and I never met an end user. And the only end user I ever met was an undercover agent, and when I after I got his email, and then I met him in Los Angeles, right? And that was the the first time he was going to be the first client in the United States, the first time I had met an end user, and uh I was still new to uh this, so I wasn't a founder of the company.

SPEAKER_02 26:44

Uh you only you only did it, you know, went to that meeting as a sort of favor to your boss and your, you know, to sort of uh took it for the boss, and uh I I wanted to, I walked out of the meeting.

SPEAKER_00 26:57

In fact, phoned phoned my boss and said, these guys are nothing, I don't want to deal with them anymore. And we didn't sell anything anyway. And it wasn't until two months later that they phoned me back and said, Can you get us three devices and uh three subscriptions?

SPEAKER_01 27:16

Right.

SPEAKER_00 27:17

I was in Portugal a little bit uh tipsy at the time after having uh having a drink with a with a friend, and uh then I contacted uh the boss of my company and said, can you put together some phones for these guys and send them to Los Angeles?

SPEAKER_02 27:38

Lastly, I just wanted to ask you about you have a trial coming up um in October. Can you tell me what you're thinking about that? You know, do you think it'll be, you know, will the the prosecutors sort of bail out at the last minute, or are they gonna they're gonna sort of carry on with their their narrative that you're the Mr. Big of you know you were one of the major distributors of sky cc phones to criminals in France and around the world? What are the implications for for Pavel Juro and Telegram and and the encryption industry in general?

SPEAKER_00 28:17

Yeah, that's uh that's a big question. Uh the way I feel is that France has no choice but to go on, no matter what the outcome. I mean, have you ever met a Frenchman who admitted he was he was wrong about something?

SPEAKER_02 28:37

I wouldn't I wouldn't want to do that.

SPEAKER_00 28:40

I think I think more I think more than that, it's they need to rationalize these servers, and everybody knows it in the Chamber de Paris. I think it's it's so sunk into their head that it is an operational strategy and the French pride to have taken those those servers and they have to keep them, and they have to keep that data. Now, the seizure of that data is actually going forward to the European Court of Human Rights, uh, or to the EC ECHR. Or is that what it is? Uh I don't know the European Court of Humanity. Well, but there are decisions right now that may uh override everything for them and uh destroy their plans. So we'll see. So as to the rest of your question, I'm not sure if I'm answering your question or not.

SPEAKER_02 29:46

No, I just wondered you personally, you know, how confident are are you that you'll you know be a free man, be able to leave France finally after all these years?

SPEAKER_00 29:57

I mean, I'll I'll say this frankly: I really don't believe I can get a fair trial in Paris. Yeah, I believe that the the whole process, it has been my punishment. I've served what a Frenchman would serve uh on a 12-year sentence already. I've had five years, four years of incarceration, one year of house arrest with good behavior and the way they calculate how long you stay in prison. I've already had a 12-year sentence served. But really, there is an unfairness that I feel. There's a bias that is so thick in the courts of Paris that I think they feel obligated to show that they're doing something and to rationalize that seizure of the data. And I think it will have to even go to an appeal before anything gets done. As like the outro process outro, I don't know if you've heard of, which was uh a case that uh created a whole revolution in the uh court systems in in France in 2000, 2008, where um I I let's see, there were about eight people charged with pedophilia, and they were dragged, their names were dragged through the mud, one person killed themselves. Uh they were finally uh some I think there was one one or two or three acquittals in the in the uh after the tribunal, and then the other ones had to go to uh um the uh what's the other court called? The appeals court had to go to appeals court and where they were acquitted then, and then it caused a whole change in the the French court system, but it eventually came back to where it was before in in 2000 now, where I believe judges are actually part of the operation now, and this operation was so big that even judges cannot could not turn down, couldn't get away from that momentum that had started in the case, and the responsibility that France had in having to hold the anchor for this case, which was nothing but the servers were located in France. Because so far there are no victims, there are there is no crime in France, and there's no French people held in this Court d'Assises, which is the high criminal court of France. There are no French people, no vendors in France.

SPEAKER_02 32:53

Um, and obviously you don't have a ju they don't have juries in France, so you can't um rely on that. It's it's like you say, it is the judges, and there must be a fear that they will, you know, just agree to to protect the name of France, so they will convict you, maybe give you such a sentence that means you know, time served, you'll be immediately released, but they can save face and say, you know, we convicted him and we were right all along.

SPEAKER_00 33:26

It seems to be the case in France where that the it automatically becomes the time served no matter what, and there's about a 95% uh um guilty um ratio that comes out of that. But I I think um there it is a professional juror system, so there is a number of jurors, uh, it's three or five jurors, okay, and then there is a magistrate. Uh uh, I think there's two or three magistrates as well. So there's a lot of people involved, and also understand in the UK that you're they're talking about getting rid of the juror system. I think there's really a really important reason why the whole juror system was set up. It is a check and balance that is so important to democracy, and the French don't have it. And you can call them professional jurors and make it sound better, but uh from what I've seen, it's it doesn't look good. And it starts with being able to put somebody in prison for four years and not go to trial as a normal thing. It's not normal, it's it's atrocious.

SPEAKER_01 34:45

Yeah.

SPEAKER_02 34:46

Well, on that sad uh uh you know negative uh vibe, I think we're gonna I think we're gonna leave it there because um we wish you all the best for your trial and that maybe you know the the French system will surprise you and there will be uh judges there who just are willing to sort of um you know point out the emperor's new clothes are nothing and uh he's naked, um and you will uh get acquitted. Um but um it's it's gonna be interesting to to watch. Um I know I'm sure I you know I wouldn't want to be in the middle of it, but um it is at least you don't have that long to wait after so many years, you know, in a very grim prison by the sound of it. Um and now and now and for a few months, yeah.

SPEAKER_00 35:38

Five more months of waiting here, and uh I could have the uh Spanish Inquisition burst through my doors at any time. So I may be at home and have a garden, but uh the police came and beat me up in prison. Six police came and beat uh beat the hell out of me, breaking my face up, uh leaving me with a lot of injuries, and that happens here. So I'm here and I'm scared. I try to be happy, try to look happy every day, but it's uh it's really frightening being here away from home. And I really miss my family. My mother is 95 years old and in the hospital, and she says she's gonna wait for me.