Much of the commentary on the tussle between Apple and the FBI over access to the iPhone San Bernardino shooter Syed Farook has focused on the right to privacy of citizens and consumers. While worthy of debate, this issue should be placed in the (often shadowy) war for power underway between the State and technology giants over issues of governance, surveillance, and cyber security.
The dispute over Farook's iPhone ended abruptly last week when the FBI made it known it had successfully hacked into the contested device with the aid of an unknown private entity (rumoured to be Israeli firm Cellebrite). This was followed by an announcement from the Justice Department that it had dropped its case against Apple, effectively pre-empting a Supreme Court battle that many had hoped would have laid some ground rules for privacy and cyber security conflicts.
There are many murky patches in the digital surveillance and cyber security landscape where national insecurities are increasingly pitted against global powerhouses with market capitalisations larger than many countries' GDP. The growing digital footprint of global tech corporations raises major questions about vested interests, protection of the privacy of the citizen, and the role played by corporations in furthering the cyber-surveillance state.
Apple's vehement refusal to play by the rules in this instance — however politically motivated it may have been — reveals some pushback from a Silicon Valley uncomfortable with the public perception it has been conscripted to advance Washington’s surveillance powers. Now it seems technology firms have decided to up the ante in this political fight. Such a stance would appear to support the position of those, such as Evgeny Morozov, who argue tech companies have taken on the 'de facto responsibilities of the state'. In a networked world, where the tentacles of the State and its capitalist counterparts increasingly overlap, the exercise of power by technology firms in areas previously undertaken solely by the state poses some interesting questions. Does it reflect a rolling back of sovereign power? An extension of corporate reach? Or does it reveal new, re-concentrated forms of power?
I would argue the Apple/FBI conflict should not be seen in isolation but in the context of various other government efforts to shore up national security in the race for cyber security dominance. Examples include: Britain’s proposed 'snooper’s charter' that could force tech companies to overstep their own encryption measures; moves to amend French anti-terrorism laws by bolstering the ability for intelligence services to access personal data; China’s recent push for greater control over foreign technology products and services; and the public vilification of encrypted communications by European governments in the wake of recent terrorist attacks.
Out of all of these, the Apple case has attracted the most attention because it has so visibly demonstrated how the the US government prioritises national security over digital privacy. Long perceived to be the global guarantor of a safe and secure cyberspace, in recent months the liberal rhetoric of the US government has been undermined by its actions.
As the roles of the state and tech companies evolve in the interwoven spheres of cyber security and privacy, we should be clear on who the key power players are, and if their actions place civil liberties at risk. The vague contours of domestic and global cyber security and surveillance leave governments, corporations, and citizens alike vulnerable to exploitation.
In the US, for example, President Obama’s 2010 draft legislation on encryption was to have provided clear guidelines as to what tech corporations would be obliged to provide to the government in encryption cases. However, this legislation was shelved due to growing public unease about Washington’s surveillance activities and, as it has not been revisited, potential loopholes and vulnerabilities remain. In addition, the implications of nationally based cyber security policies increasingly extend far beyond their territorial borders, such as China’s controversial anti-terrorism law passed at the end of last year. Although softened from a much tougher earlier draft, the law outlines regulations that would require foreign tech companies doing business in China to provide decryption keys to Chinese law enforcement officials if requested. The bill has been highly controversial, with President Obama personally condemning the measure, and it illustrates the challenges raised by the lack of internationally recognised statutes and laws in place to govern a globalised tech marketplace.
These cases demonstrate the urgent need for frank discussion and evaluation of relevant and planned statutes and laws.
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