Public safety versus data privacy

Fourteen people were killed and 22 were injured when gunman Syed Rizwan Farook and his wife, Tashfeen Malik, went on a rampage in California last December. The FBI has ordered Apple to assist in various ways with bypassing the security on Farook’s iPhone, in order to access it through what has been described by the Apple CEO, Tim Cook, as a ‘back door’. Cook says such assistance would ‘undermine the very freedoms and liberty our government is meant to protect’.

The FBI wants Apple to help it to access a terrorist’s phone to potentially gain useful intelligence and prevent future crime. Why shouldn’t Apple do all it can to assist?

The answer, I’m afraid, is another question: what would be the cost of this assistance? Aside from the interesting and debatably reassuring revelation that the FBI does not already possess the requisite technical ability to hack into the phone, the problem poses a giant moral quandary.

Apple introduced default encryption in 2014, following Edward Snowden’s revelation that the National Security Agency was covertly and routinely accessing the personal information of its civilians. Crucially, the development debarred Apple itself from breaking the encryption.

In the UK, the draft Investigatory Powers Bill includes a legal obligation on companies to weaken or break their data encryption at the government’s request. This follows both China, which has a similar Bill, and France, which has just introduced an amendment enforcing similar requirements. These surveillance powers were drafted in the wake of Snowden’s revelations, but does this international shift inhibit rather than protect privacy?

Mostly, the tech giants and privacy activists are supportive of Apple’s stance: Google’s Sundar Pichai, WhatsApp’s Jan Koum, Mark Zuckerberg, and Snowden himself all have concerns over the ‘chilling precedent’ that would be set by Apple’s assistance, which Apple says would make every iPhone ‘inherently weaker’.

The Information Technology Industry Council says: ‘Our fight against terrorism is actually strengthened by the... technology sector, so we must tread carefully given our shared goals of improving security, instead of creating insecurity.’

Tentatively on the side of the FBI stand, interestingly, Bill Gates and John McAfee. McAfee has offered to hack into the phone himself, while conceding that ‘anyone who understands the issue stands with Apple’. Gates also believes that this can be dealt with on an individual basis: ‘This is a specific case where the government is asking for access to information. They are not asking for some general thing, they are asking for a particular case.’

However, on 25 February the FBI director, James Comey, acknowledged that the stalemate does in fact go beyond one particular case and accepted that it will set a precedent for law enforcement access to locked or encrypted mobile devices. This goes some way to vindicate Apple’s stance.

This is not a case of prioritising a murderer’s privacy over public safety, but a case of protecting users’ confidence in their cyber privacy over a potential lead.

The matter could eventually reach the US Supreme court, a process which could take years.

Either way, a new status quo will be formed in relation to the power struggle between individuals and the state vis-à-vis privacy and data protection. A huge corporation could become the gatekeeper of personal information, or the ‘back door’ could be opened and, arguably, left ajar.

Julia Wookey is a trainee solicitor at Howard Kennedy @HowardKennedy_ www.howardkennedy.com

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