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The UK Government has told tech giant Apple that it wants to be able to access encrypted data which Apple stores on behalf of users in its cloud service. This data is currently only viewable by the user themselves – not even Apple have direct access.
The government have made this demand via the Home Office, which has the ability under the Investigatory Powers Act 2016 to compel companies to provide information for the purposes of law enforcement. Based on the rules within that Act, the demand will not be made public, and both the Home Office and Apple have declined to officially comment on the matter. However, numerous sources have confirmed that this request has indeed taken place.
Because the request itself has not been made public (and likely never will unless this dispute goes to court, though even then restrictions would potentially be put in place out of national security concerns, which courts are often deferential to), it is hard to know the exact purpose of this request.
The most likely option is that the Home Office want to be able to access the encrypted data of suspected criminals in serious criminal cases as part of government investigations. Given the context here, it is likely (though mostly still speculation) that the kind of offences in question are those which would pose a risk to national security – for example, terrorism charges.
If this is the case, it would be presumed that the government would not have continual access to all user data – instead, there would likely be a process via which they have to justify taking a look through the databases when a particular case comes up. Even then, they would need to ensure that they have good reasons, that the decision to do so is proportionate, etc – or risk the threat of challenge by judicial review, a key power to speak up against the government in Public Law. At this stage, then, the Home Office are essentially just taking the preliminary step of pointing out to Apple that they expect this data to be made available upon request if the government so desire.
Apple have not released a public statement on the matter. However, they have previously stated that they view privacy as a ‘fundamental human right’ – something they will go to great lengths to protect on behalf of their users.
Quoted in a recent BBC article, a director at Privacy International (a charity with significant interest in this matter) described this move by the Home Office as an ‘unprecedented attack’ which will set a ‘hugely damaging precedent’.
Apple’s main reservation to allowing such access appears to be the fact that, to achieve this, they would need to build a ‘back door’ into their systems. In other words, a way for the government to be able to ‘get in’ to their systems and retrieve such data. By doing so, they would almost certainly increase the risk of hackers and other malicious parties managing to walk through that same door.
It is certainly interesting to note that this is not the first time Apple have faced such a request. In the US, the FBI have repeatedly tried to use court orders to force Apple to disclose confidential data to the investigatory body. For example in 2016, where the tech company were asked to give the FBI access to an iPhone used by Syed Rizwan Farook and his wife Tashfeen Malik, who committed an act of mass-murder terrorism in California. In the end, the case was dropped after the FBI managed to gain access to the device without Apple’s involvement – moving the specific investigation forwards, but leaving lasting question marks over how such a legal case would work if both sides remained steadfast in their position.
Apple have even shown discomfort within the UK over this issue – when proposed changes to the Investigatory Powers Act were disclosed last year, they issued a public statement, describing the reforms as an ‘unprecedented overreach’ by the government. It is therefore relatively easy to predict the hostility Apple are likely to declare against this request when they do choose to speak up.
There are a number of points here which the lawyers of tomorrow, whether solicitors or barristers, need to understand. These are also excellent talking points to use as part of applications for opportunities such as training contracts and pupillage.
First off, it is worth considering practice areas relating to the story. Technology is, of course, an important practice area for many firms – advising big tech firms like Apple is a significant earner for many elite US and Magic Circle outfits, for example. Lawyers in these areas should have excellent commercial awareness in order to understand the perspective and goals of their clients in such specialised spaces.
Public lawyers are also likely to be involved in this story. Analysing the government’s powers and how they are exercised is the foundation of most public law work, and those issues are clearly highly relevant here.
Another angle worth considering might be jurisdiction. The top international law firms have the capabilities to advise on complex cross-border issues. In this story, the international aspect is going to be crucial. For example, questioning the relevance of the US cases to how this story is likely to play out in the UK, or looking at Apple’s options in terms of moving their operations around (and whether this is likely to allow them to escape the Home Office’s order, to some extent at least). Detailed research into both statute and common law is likely to be required here.
In short, then, this story intersects a huge number of legal areas, and is likely to throw up highly complex questions for lawyers to unpack.
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