inBy Shivani Chimnani:
Over the past few decades, the whirlwind progress of information technology and IT managed services companies has been extraordinary and has profoundly changed our traditional notion of privacy. Privacy today is not merely confined to the invasion of one’s self or the physical space where he dwells but even to the technological commodities he owns ranging from smart phones, tablets, computers, laptops to an endless list of electronic devices possessing personal information.
In the quotidian course of life, an average individual indulges in multitudes of online transactions ranging from daily innocuous activities such as buying groceries, movie tickets, clothes, books to undertaking eminently sensitive activities such as investing in stocks, conducting banking transactions, etc. which generate an insurmountable amount of personal data. It is indisputable that the capacity, power, speed and impact of information technology is accelerating rapidly. There has been a paradigm shift from the use of analog data to virtual data for storing vast amounts of personal, professional and confidential information over the past few years.
On February 16, 2016, the US District Court for the Central District of California ordered Apple Inc. to assist the US government in unlocking the iPhone of one of the shooters involved in the terrorist attacks which took place in San Bernardino, California on December 2, 2015. US authorities were in possession of an iPhone that formerly belonged to the shooter, but the FBI (Federal Bureau of Investigation) was unable to access the encrypted device. The court order required Apple to supply software to the FBI to disable a self-destruct feature that erases phone data after 10 failed attempts to enter the phone’s password. The FBI demanded that Apple make a new version of the iPhone operating system, circumventing several important security features including the fortified encryption feature, and install it on an iPhone recovered during the investigation.
Following this, the company’s chief executive, Timothy D. Cook, penned an earnest letter entitled ‘A Message to Our Customers‘ warning customers of far-reaching implications beyond the case and vowed to fight against the federal order and do everything in their power to protect their personal information, and safeguarding personal data. The letter further stated that if in the wrong hands, the software, which does not exist today, would have the potential to unlock any iPhone in someone’s physical possession.
On 20 February 2016, the US Department of Justice filed a motion to compel Apple to unlock the encrypted iPhone belonging to one of the San Bernardino shooters to which Apple filed an objection. Apple Inc. refused to comply with government orders to undertake such grave measures and continues to fight the battle to protect privacy.
Resultantly, Apple Inc. asked the US government to create a panel of experts to discuss issues of security versus privacy in light of the present legal dissension between the law enforcement agencies and the company. On March 4, 2016, the UN High Commissioner for Human Rights warned US authorities of the dangers and far-reaching consequences of compelling tech companies to undertake measures compromising their clients’ privacy. He stressed the possibility of misuse of easy access to encrypted information threatening individual privacy.
This case has paved the way for a fierce debate splitting individuals into two sides of those demanding absolute protection of personal data and those favouring security and the cost of abdicating privacy. A vehement debate whether such momentous steps should be taken by Apple is still ongoing. A California federal court has been scheduled to hear the motion of objection filed by Apple on March 22, 2016.
The legal conundrum of choosing between privacy and national security has been haunting states and citizens for a few years now. The clash between the US government and Apple underlines the crux of the worldwide argument over surveillance. Mandatory data retention laws have greatly increased the scope of state surveillance, and thereby the scope for infringement of human rights. The panacea to this legal quandary lies in effective counterbalancing of rights of privacy and national security. However, the questions of what constitutes national security, what rights will an individual sacrifice at the cost of ensuring security, what protections will be afforded and where we draw the line between ensuring privacy and national security still linger.