Apple vs the FBI: opening Pandora’s box?

“Any back door is a back door for everyone…” Not a direct quote from Apple’s open letter regarding the FBI obtaining a court order in the US requiring it to create new technology and encryption pathways to access the iPhone of a terrorist behind the San Bernardinho attacks:  rather, a somewhat prophetic statement made by Apple in response to the UK’s draft Investigatory Powers Bill back in December.

It is a theme re-visited in recent days.  Apple appears to be on a moral quest to defeat first world governments in their attempts to get access, seemingly by any means, to data carefully created (and encrypted) to effectively self-destruct when someone (governments or criminals) try to break down its walls.

But how would the Apple/ FBI debate play out in the English Courts? Leaving aside the IP Bill (and general data protection principles), Article 8 of the European Convention on Human Rights plays its part.  This requires respect for private life, subject (putting it simply) to interests of national security.

I think we’d all agree that the balance, in any individual case such as the San Bernardinho gunman, clearly favours the authorities, but what about the wider consequences (what Apple are calling the “chilling” consequences)? Apple has complained that the technology it would effectively be required to create in order to access Syed Farook’s iPhone could easily get into the hands of the “bad guys”.  If it did, national security would, it says, be fundamentally compromised.  Quid pro quo: you get to know Farook’s secrets but at the same time expose all of Apple’s other (law-abiding) citizens to people like him.

It’s an interesting debate, particularly at a time when data transfers (from Europe) to the US has been the subject of separate scrutiny following the Snowden revelations and the subsequent rendering of Safe Harbor as invalid by the European Courts (and the proposed introduction of Safe Harbor v 2.0).

Pandora’s box has well and truly been opened.  According to Apple, if the FBI has its way, Hesiod’s mythology will become modern reality…

Nicola Mead-Batten, Regulatory Associate