Do you own an iPhone? Do you store your data in iCloud? If so, are you happy to hand over all your messages, contacts, documents, emails and photos to unknown elements of the British state? I imagine not.
Or perhaps you are? Maybe you are of the “nothing to hide, nothing to fear” school? You lead such a blameless life that you’d be perfectly happy for Yvette Cooper—or the police, or the spooks, or whoever—to have a little snoop around. It’s the bad guys who should worry.
My question arises from a remarkable story in the Washington Post a few days back, which revealed that unnamed “security officials” in the UK had demanded that Apple create a “back door” allowing them to access anything any Apple user in the world had uploaded into the Cloud.
The story had modest follow-up, but few British outlets seemed to appreciate what a big deal this is. In this, as in many other respects, it feels as if we may have forgotten things that were self-apparent 250-odd years ago, maybe longer.
You may be familiar with the phrase, “an Englishman’s home is his castle” without realising it was uttered by a judge, Sir Edward Coke, in 1604, limiting the degree to which sheriffs could enter homes for law enforcement and tax collection.
Unless you read law as an undergraduate, you may be less familiar with the 1765 case of Entick v Carrington, which was no less significant in asserting the right of the individual against the state.
John Entick was a writer for the Monitor newspaper, which had unflattering things to say about the government and the king, George II. Nathan Carrington and three others employed by the state entered his house, raided all his boxes, chests, and books and walked off with every scrap of potentially incriminating paper they could find.
Enter Lord Camden, the then chief justice, with a ringing declaration in 1765 that the state had no business behaving in this way. No such law allowing trespass by the state existed; “If there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have.”
And that’s where the law stood until the technology came along which made it easier to snoop on any individual about whom the state had suspicions. They could always steam open letters, but in time they could bug telephones, scoop up emails and generally help themselves to whatever they wanted. Never mind the power of CCTV linked to AI.
Journalists could no longer assume they could speak confidentially to sources; nor doctors to patients; nor lawyers to clients; nor priests to parishioners; nor MPs to constituents; nor wife to husband or child to parent. It was the end of privacy.
But was it? Because technology found a way to heal the thing it had destroyed: end-to-end encryption (E2EE). And for a few years we may have assumed that, after all, we could return to the late 18th century and be reasonably sure that Big Brother didn’t have a completely free hand in watching us.
Edward Snowden, the fugitive whistleblower who had seen at first-hand what the US National Security Agency was capable of, punctured our sense of comfort in 2013. But E2EE—in which the tech company apparently had no way of intercepting our communications—seemed to offer a way back to some form of privacy.
And now we appear to have a secret request by the home secretary to Apple by the British government to have, in the words of the Washington Post, “a blanket capability to view fully encrypted material, not merely assistance in cracking a specific account, [which] has no known precedent in major democracies.”
The government is acting under the legislation passed in 2016—the so-called Snoopers’ Charter—which not only compels tech companies to let the government help themselves to whatever they demand, but to make it a criminal offence even to reveal that the government has made such a demand.
Apple is reported so far to have refused to accede to the order, though the law says that, even if they appeal it, they can’t delay handing over the requested material. Nor can they warn users that the company’s advanced forms of security might no longer work. You choose whether you think this is Kafkaesque or Orwellian. Or both.
Now, of course, bad people use E2EE. They trade drugs, plots terror acts, enable paedophiles. So, there is a trade-off. How much privacy are you prepared to sacrifice in order to get the bad guys?
And is that how it works? By which I mean, is it possible to “create a back door” for the British government which can’t be used by anyone else? Vladimir Putin, for example, or some crook wanting to siphon off your savings in the middle of the night.
In the immediate aftermath of the Snowden revelations, the White House’s own Privacy and Civil Liberties Oversight Board (PCLOB) looked into the collection of metadata—ie the who, why, when and what of communications, rather than the whole shooting match (as is now apparently being demanded of Apple). They found that even this limited information “fundamentally shifts the balance of power between the state and its citizens.” Which was roughly what Lord Camden held in 1765.
The Board was extremely sceptical of the counter-arguments advanced by the state: ie that they needed these intrusive powers to stop the bad guys.
“We have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation,” they wrote after receiving classified briefings. “Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
Across the pond we are witnessing something like a coup, with the president putting fawning loyalists in charge of the machinery of intelligence and investigation. And who didn’t feel a little queasy at the sight of the Big Tech overlords—including Apple’s Tim Cook—surrounding him as he formally took power barely a month ago? One of them, Elon Musk, has already infiltrated the heart of the government’s financial systems. Who is to say what is happening with all the data we entrust to the tech oligarchs? And if we did say, we would almost certainly end up behind bars.
Around the time of Snowden, the former Appeal Court judge, Sir Stephen Sedley, wrote of his despair at “a statutory surveillance regime shrouded in secrecy, part of a growing constitutional model which has led some of us to wonder whether the tripartite separation of powers—legislature, judiciary, executive—conventionally derived from Locke, Montesquieu and Madison still holds good.”
He wasn’t wrong, was he?
