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So the argument is: The police never decrypted the messages, but grabbed unencrypted messages (either before encryption or after decryption). And since what was transmitted was encrypted, the unencrypted messages CANNOT have been in transit. I think there would be a question if you used https: Does the whole process of https (encryption on my side, transport, decryption on your side) count as "transmission"? If not then hacking _into_ the https process would be fine. Similar with VPN.