You cannot blame US Director of National Intelligence Tulsi Gabbard for trying. On Tuesday, she announced that the UK was finally backing down on its outrageous demand that Apple Inc give it a backdoor to user data. That would seem like a win for US tech giants and privacy advocates, but it is not so simple. Even if the UK government drops its request, it can still issue other “technical capability notices” demanding tech firms share information about their users, which firms are not allowed to say they have received.
The real problem is bad privacy legislation in the UK, and the best way to solve it is not through political meddling but in court. Gabbard’s pronouncement on X seems good on its face and followed extensive negotiations with British officials, but it now perhaps makes a much-needed change to the law less likely.
The UK issued the order earlier this year, saying that snooping on citizens’ private data was a price worth paying to catch criminals. It is not. Such backdoors threaten the privacy of citizens and treat them like automatic suspects. Mass surveillance does not necessarily prevent serious crime either.
Illustration: Constance Chou
Apple launched a legal challenge in March, saying the demands went too far and that it needed to maintain strong encryption to protect user privacy. The company has its own financial reasons, of course, with security being a cornerstone of Apple’s marketing strategy, helping it justify the 30 percent commission it charges on the App Store.
However, addressing the confidential order in court could have led to a change in how the law was applied across the board.
“We have a duty to challenge this type of secret power,” said Gus Hosein, executive director of Privacy International, a campaign group whose own legal challenge against the UK’s secret orders has been combined with Apple’s. “It doesn’t belong on the statute books of any government anywhere.”
Tech giants are often on the wrong side of the ethical line when fighting against government regulation, like the UK’s more sensible Online Safety Act. However, in this particular case, Apple is right. The UK government’s Investigatory Powers Act 2016, dubbed the Snooper’s Charter, is too aggressive on surveillance and has helped make its citizens some of the world’s most spied-upon people. It not only lets the government demand companies give them special access points to user data, but has recently become even more onerous, requiring firms to notify the government of any big security changes so the UK can determine whether to demand a backdoor.
The Home Office, a sprawling and powerful government department handling immigration and policing, is at the heart of this heavy-handed approach to surveillance. So too is a long history of state control over communications, such as the once-nationalized British Telecom, now BT Group PLC, along with a national-security mindset that sees constant observation as critical to maintaining public order.
London is one of the most heavily surveilled cities in the world, with nearly 1 million surveillance cameras.
The UK’s backdoor demands are especially egregious because they come with a gag order for companies that get them. Neither Apple nor the UK government would say if such demands exist if you ask. That gives the government unhealthy leverage over its citizens, and makes it almost impossible to hold officials to account or to know when people’s rights are being threatened.
A Home Office spokeswoman refused to disclose if the order on Apple had been dropped.
“We do not comment on operational matters, including confirming or denying the existence of such notices,” she said.
So why do we know about the Apple order? Because the company found subtle ways of making it public, stopping all end-to-end encryption for British customers of iCloud and by challenging the order in court. Apple’s case was due to be heard early next year, and admittedly, winning was a risky bet. British courts rarely rule against the government on issues of national security, but there was a chance that if Apple prevailed, the British Supreme Court could overturn the government’s secret backdoor notices for good.
The UK could do with that sort of improvement, as its clandestine demands make it an ugly anomaly in the democratic world. US tech firms are not legally compelled to add backdoors to their products, and past attempts — like the “Clipper Chip” in the 1990s and FBI-Apple encryption dispute in 2016 — were blocked or abandoned after public backlash.
In the EU, strict privacy laws and court rulings have stopped governments from forcing companies to build in backdoors, typically citing risks to human rights and cybersecurity.
The Home Office would likely drop its order under US pressure, but we would not know for sure until Apple uses its next appearance before a judge to say its case is invalid. That would be an unfortunate outcome for a fight that should have played out publicly in court, and could have put an end to such intrusive surveillance powers for everyone else.
Parmy Olson is a Bloomberg Opinion columnist covering technology. A former reporter for the Wall Street Journal and Forbes, she is author of Supremacy: AI, ChatGPT and the Race That Will Change the World. This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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