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People have long worried about technology invading their lives. The front cover of Newsweek magazine, illustrated by a telephone, camera and tape recorder, once captured those fears, asking: “Is Privacy Dead?” The date: July 1970.

Since then, we have seen the mass introduction of personal devices such as laptop computers, smartphones and health monitors. Today, more than 6bn such devices are connected to the internet. According to Gartner, a technology research company, 5.5m are being added each day. Most of them are vulnerable to being hacked by those ingenious or devious enough. We truly live in a golden age of surveillance, in which every step we take and every heart flutter we make can be recorded, for better or worse.

Our governments are desperate for us to keep that information secure — but, understandably, they also want selective access to that mass of data when national security demands. The technology companies, which often stand between governments and users, have mostly been happy to comply with lawful requests for such data.

Apple’s latest transparency report, covering the first six months of 2015, records that the company received 3,824 requests for device information from US law enforcement authorities. It provided data in 81 per cent of those cases.

The company operates a 24-hour hotline to respond to such requests and promptly helped the police investigate the San Bernardino attacks last year when two Islamist terrorists murdered 14 people. But when the FBI later demanded that Apple write special software to help crack a locked iPhone used by one of the killers, the company resisted, claiming this could jeopardise the security of all iPhone users. The FBI accused the company of obstructing its investigation. A heated row has ended up in court.

This month, the FBI hit the pause button on those legal proceedings, saying it might have found another way of cracking the iPhone. Nevertheless, the case raises important issues of principle and precedent that resonate in all democratic countries trying to balance the demands of security against the rights of privacy. In spite of the odium heaped upon the company, Apple has done the right thing to stress-test these issues in court.

As the Center for Democracy and Technology, a civil rights organisation, has argued in a court submission: “If the government succeeds in this case, the relationship between technology providers and users will be forever altered.”

This is not the first time US law enforcement agencies have tried to force Apple to override its security procedures, and on occasion the company has complied. Last year, however, at the invitation of a New York judge, Apple contested such an order in a case involving a drug dealer who subsequently pleaded guilty. In February, that judge ruled in the company’s favour.

Even though the New York and San Bernardino cases differ in important respects, the ruling by Judge James Orenstein is worth reading because of the arguments he highlighted.

The issue of principle concerns whether a company can be conscripted by the government into taking actions that it believes endanger its users’ rights and its commercial interests. It is one thing to hand over all accessible data upon receipt of a lawful request; it is quite another to be forced to create a backdoor into its own products.

Judging there was a significant legal difference between active obstruction and passive refusal, Mr Orenstein ruled: “Apple is not ‘thwarting’ anything — it is merely declining to offer assistance.” The issue of precedent revolves around whether it is appropriate for the government to use the All Writs Act of 1789 to force Apple to comply with its demands, as it has tried to do in both cases. Mr Orenstein concluded it was not, given that Congress had recently rejected legislation granting such powers.

The judge called for further debate in Congress between legislators who understood the technological realities of a world that their predecessors could not begin to conceive. “It would betray our constitutional heritage and our people’s claim to democratic governance for a judge to pretend that our Fathers already had that debate, and ended it, in 1789,” he concluded.

Mr Orenstein’s ruling is far from the final judgment in the broader debate. The Department of Justice is appealing against his decision. This may all seem a messy process, but it can sometimes prove to be the useful means by which democracies grope towards greater legal clarity.


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