Apple or the FBI… whose side are you on in the iPhone privacy battle? | Will Hutton

So is Apple fighting for everyone’s liberty? It is defying the US government’s request that it must help open up the iPhone of the terrorist Syed Rizwan Farook, who killed 14 people in San Bernardino, because the software so created will compromise the integrity of every iPhone. Or is it another example of a hi-tech company bogusly invoking the threats to privacy mounted by the new digital age as a marketing strategy – and carelessly putting the lives of every citizen a little more at risk?

The US is riven by the argument, with the need for security counterbalanced with the need for personal privacy. Donald Trump has called for a boycott of Apple products, while most – but not all – of California’s tech giants have lined up behind Apple. It is an argument that Britain needs to have with no less urgency. These issues confront us too, in a country perhaps far too ready to trade off personal freedom before any call for security.

The FBI wants the details of Farook’s last months of calls for obvious reasons: it will reveal the extent to which he and his accomplices were lone operators or part of a terrorist network operating in the US; if the latter, there could not be a more vital interest than knowing who they are. The trouble is that the iPhone is so encrypted that the call history cannot be disclosed without the right password and will close down once 10 wrong passwords are entered. It will need special software, written by Apple, to get at what the justice and police authorities need so desperately.

The FBI and Justice Department have been careful to insist that they don’t want general software. They are targeting the iPhone of just one terrorist and need Apple’s one-off support to open it. President Obama, steering a path between the needs of privacy and his government’s appetite for surveillance revealed by Edward Snowden, has on this case come down on the side of security. A federal judge has backed the FBI and ruled, following the All Writs Act of 1789, that the rule of law is everyone’s business: the young American republic wanted to establish it was a republic of laws and thus it was the duty of any person or any business, even if not involved directly in a case, to ensure court orders were executed. The court has ruled that Apple help the FBI in the name of the rule of law .

But Apple CEO, Tim Cook, in a letter to his customers that everyone should read sets out powerful reasons why his company should not create what would in effect be a back door not just to Farook’s iPhone but to everyone’s. Smartphones have become our civilisation’s indispensable personal data treasure trove – details of our contacts, finances, health and private conversations are all housed in one device. As he writes: “The government suggests this tool (special software to open the phone) could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks – from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”

The All Writs Act has transmuted from an assertion of the rule of law in the analogue world to a menace to personal freedom in our digital times. “The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location or even access your phone’s microphone or camera without your knowledge,” he writes. Apple has co-operated fully so far, but on this, declares Cook, it will resist.

So are you with Donald Trump, Barack Obama and almost all the British press – or with Edward Snowden and the New York Times, agreeing with Tim Cook that a backdoor to the iPhone is a step too far, opening up the risk of surveillance not just from the US government but from organised crime and foreign intelligence services? The FBI can already access online data on iCloud and Google’s Gmail, along with records of phone calls and text messages. Does it really need a back door to one iPhone?

When I began this article, I was inclined to side with the FBI: the information it wants is an imperative, it needs Apple’s help and it is democratically accountable in a way that Apple is not. The hi-tech companies, great advocates of personal liberty, also need to recognise they have obligations to society, especially to counter terrorism. But reading Cook’s letter brought me up short. Does that obligation go as far as creating a master key that in the hands of anyone – government or corporation – could access all our data at will?

Yet while Cook is persuasive and raises fundamental issues, what happens to data should not be determined by Apple alone. Suspicion of the Big Brother state is partly alleviated by my knowledge that at the limit it is subject to democratic checks and balances – and there is a terrorist threat. There are no such checks and balances on Apple. VW sold diesel cars for years with embedded secret technology falsifying emissions; as matters stand, none of us has any certainty about how our data is being used or could be used. There can be little confidence or trust in corporations that go to such vast lengths to avoid their civic obligations, notably paying tax.

Yet the situation is unsustainable. Back doors to smartphones are menacing. The Big Innovation Centre (declaration: I chair its steering group) has long called for an EU-wide privacy charter setting out what can and cannot be done with personal and business data, on the starting assumption that all data is personal property.

There needs to be a parallel recasting of company law so that companies are obliged to disclose how they collect and use personal data. But above all we should require a new covenant with the UK government about how it is held to held to account for the vast array of surveillance powers it has acquired. As matters stand, the UK would be the first user of any back-door access to smartphones – and nobody would know.

Yet Britain by itself has little leverage over how digital technology is going to develop – and how the balance between security and personal liberty will be struck. Apple does not give a fig about Britain, but it does care what happens in Brussels and Washington, which is where power lies. The EU matters not only for jobs and the future of the west – it is the only means we have to shape our digital future, otherwise in the hands of Donald Trump, the US Justice Department and west coast hi-tech giants. To have any voice, Europe has to stand together.

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