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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, February 19, 2016 Related reading: Notes from the IAPP Europe Managing Director, 16 April 2021


Greetings from Brussels!

Last week I referenced business concerns in relation to recent proposed U.K. spying laws, with a particular mention given to encryption and government-sanctioned hacking. This week’s media blockbuster headline, albeit a U.S. one, encapsulates this very issue in very tangible privacy terms with global impact. A federal court judge has ordered Apple to assist the FBI with unlocking an iPhone used by one of the attackers responsible for the December mass shooting in San Bernardino, California. On the surface this seems at first sight, a reasonable — and isolated — request to aid and assist the authorities with ongoing investigations. However, the merits and precedence which could now be set by the federal order has sparked a furious and very public battle between the Obama administration and the FBI with one of the most valuable and iconic global brands of the 21st century in a standoff with far reaching legal implications. The details of the story can be read here.

If you extrapolate the implications of this case, one could argue that Apple and the FBI are currently engaged in a contest to figure out who has control over the phone in your pocket, and the outcome of this contest could shape individual privacy rights for the foreseeable future. Apple goes to reasonable and compelling lengths to explain its position in an open letter and why complying with this order could have dire consequences to the security and privacy of every iPhone user worldwide. I recommend reading it, for background to this case.

The crux of the issue seems to boil down to the request for ‘access software’ to be written (by Apple) which would override a series of security and encryption features granting the FBI faster access to unlocking the iPhone in question. While technically this does not create a ‘back door’ with all the implied vulnerabilities, the implications of complying with the order, would essentially create a ‘master key’ for unlocking any iPhone. With the existence of the master key, it seems a logical assumption that in the future other U.S. police and intelligence agencies would be able to apply to state or federal courts for use of the software in other cases, and not necessarily terrorism related. By extension, what if other non-U.S. intelligence agencies were to request similar access to Apple data based on international demands?

It is a staggering fact that nearly 96 percent of all smartphones worldwide use Apple or Google operating systems with ‘full disk’ software encryption; to write a bypass software that would essentially diminish mobile and fixed device security which brings into play a whole series of control risks for companies and their consumers (too many to cite here). A recurring question of late being asked is how does one guarantee an independent, secure and limited environment for state intervention? That said, we should probably stop referring to smartphones as phones; they possess the keys to a high degree of life data — health, social, financial and other — for each and every one of us through multiple device applications.

This is a tough one to call. Should Apple be commended or condemned for their stance; opinion will be divided. You could however argue that Apple is justified in protecting its reputation for having built the iPhone as one of the most secure ‘computers’ on the market; there can be no doubt that this is reflected in the brand value as well as the trust placed in Apple by its many repeat customers and fans. 

I leave you with this thought, Benjamin Franklin once said “those who trade their freedom for safety and security do not deserve either one.” Do you think he would still wholeheartedly agree with that statement now in the modern age? Clearly Apple has a view.


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