Apple is spearheading a fight against “the state”; that is not only Washington but also every European state, or perhaps “the state” as such.
As part of its campaign, it is enlisting support from the tech industry and rallying human rights groups. The stakes are high for the balance between private and public in the US and Europe, beginning from France.
US Multinationals against a Panopticon State (in the US)
The FBI wants Apple to break into the iPhone of one San Bernandino’s shooters, Syed Rizwan Farook, in California. Farook and his wife Tashfeen Malik killed 14 people in a shooting in December. The phone is protected by a user-generated numeric passcode that is to date unbreakable. Apple has an additional security feature that will wipe out all information if there are more than 10 attempts to input a passcode unsuccessfully.
Through a public letter to its customers, Apple’s CEO Tim Cook is opposing a court ruling issued in February that orders the company to cooperate with the FBI. In doing so, Apple suggested that the FBI was proposing “an unprecedented use” of law dating from 1789 to justify an expansion of its authority (All Writs Acts).
Apple suggests the FBI wants the company to develop a software that will bypass the iPhone security features. The company is worried that “in the wrong hands, this software – which does not exist today – would have the potential to unlock any iPhone in someone’s physical possession.” The wrong hands could be the government’s hands.
The FBI rebuffs the term “backdoor,” describing the case as a one-off. But, “help to break in” these specific phones entails a) altering Farook’s iPhone so that investigators can try to access data by making unlimited attempts at passcode and b) helping the FBI develop a way of trying out the 10,000 different passcode combinations automatically rather than manually. None of these two capabilities is “one-off.”
You mess with me, you mess with my industry
As of Thursday, it is not Apple taking on the FBI, it is the industry taking on the FBI.
On Thursday, the biggest names in technology – including eBay, Google and Amazon have joined Twitter, eBay, LinkedIn, Reddit, and Airbnb to back Apple that spearheads a confrontation with the FBI.
Another group is putting money into the confrontation, pursuing litigation: Amazon, Cisco, Facebook, Google, Microsoft, Mozilla, Pinterest, Snapchat, WhatsApp and Yahoo. Intel and AT&T have also filed separate briefs.
During policy debates in the US, Hillary Clinton has also talked about a “Manhattan-like Project” that would give US security agencies total access to every encryption technology used by individuals suspected of terrorism. But, the debate is not confined to the United States.
French Republicans against “American multinationals”
Companies that refuse to decrypt data for the police in France can go to prison for five years; this is the desired effect of an amendment to law introduced by conservative (Republican) legislators in France, AFP reports.
That was the demand made by a fierce French conservative opposition in Parliament on Thursday. The argument they make against “American multinationals” is that criminals and terrorists will have secure communication if encryption without a backdoor is allowed.
Since January 2016, France has been holding a parallel debate to that taking place in the United States between Apple and the FBI. Initially, the French Parliament rejected a proposal to ban encryption, requiring companies to build backdoors in their code so police and intelligence agencies could access encrypted data, with the French Secretary of State Axelle Lemaire saying that this was the right discussion but not the “right solution.”
The short memory span syndrome
On October 6th, 2015 the European Court of Justice ruled that permitting US public authorities “access on a generalized basis” to the content of electronic communications “must be regarded as compromising the essence of the fundamental right to respect for private life,” that is, article seven of the Charter of Fundamental Rights. That was in the case of Max Shrems.
The Max Shrems case, in turn, was founded on the Edward Snowden’s unveiling of operation “PRISM,” through which US authorities drew personal data from Facebook, Twitter, and Google. Schrems sought to find out whether his own data were protected as required by the (European) Charter of Fundamental Rights. The court could not answer that question but did blow up the Safe Harbor agreement, regulating the flow of data on EU citizens to the United States.
State versus Privacy
For tech firms this is the mother of all battles as an increasing amount of services are moving online. Trust is currency and precedents matter. But, the discussion about the right to an all-seeing eye is anything but new and is ultimately about the balance of security and individuality, the private and the public.
The Panopticon is a type of institutional prison-building designed by the English philosopher and social theorist Jeremy Bentham in the late 18th century. The design was intended to allow all (pan-) inmates of an institution to be observed (-opticon) by a single watchman without the inmates being able to tell whether or not they are being watched. The design later became a metaphor for modern citizenship by the French philosopher Michael Foucault in his book Discipline and Punishment. The ever-visible inmate, Foucault suggests, is always “the object of information, never a subject in communication”.
