In the last few decades, the technological realm experienced a growth never experienced before elsewhere. This led to many developments and changes in the life of people. With the spread of smartphones, the content of the right to privacy has gained new momentum. Smartphones might contain the most private details of our lives. To protect people’s privacy, IT companies created encryption software inaccessible even for them. This form of defence of people’s privacy has recently been threatened. Can governments breach encryption for security reasons? The Apple vs FBI case opened the debate and brought it to the international arena (millions of iPhones are sold every year, this is clearly a global issue). This essay will analyse the developments of the right to privacy in the digital era, the challenges brought forward by the Apple vs FBI case and the relationship between privacy, security, and other fundamental rights.
Privacy can be defined as a fence that we build around ourselves to protect our life and our relationship with the rest of the world. The right to privacy is essential to human dignity and autonomy, it allows us to shape ourselves and our interactions. It protects us from external interventions and from abuses of powers by States, companies or other actors. Privacy is one of the many human rights articulated in the multiple international and regional instruments. The Universal Declaration of Human Rights refers to the right to privacy in article 12: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The right to privacy is also contained in the constitutional provisions of 130 countries. The right to privacy is not an absolute right, nonetheless, any interference must be subject to a careful and critical assessment of its necessity, legitimacy, and proportionality. While the right to privacy, in general, includes the protection of personal data, more and more instruments are creating specific provisions for this very specific set of information. Thanks to technological advances of the last decades the right privacy has come again under the spotlight and is one of the areas most affected by the developing of the digital world. Also, the Snowden Case of 2013 highlighted the new threats to privacy and human rights. Nowadays our data are not confined anymore to a single area, this reality called for the necessity to develop new ways to protect personal data. In fact, besides all these provisions, the right to privacy is quite often violated by States and companies. The recent developments are quickly making the legal protections of privacy obsolete; besides, the fast changes are making it difficult for the legislation to keep up. It seems it is becoming inevitable to give up part of our privacy, the industry of mass surveillance is expanding at unprecedented pace, while the population is not consulted. This trend, recently, has experienced a further spur because of the terrorist attacks that happened in the last two decades. As we will see later on, the Apple vs FBI case is emblematic. The discourse is reconsidering the balance between security and privacy, showing, at times, the right to privacy as an obstacle to the “fight against terrorism”.
The United Nations are aware of the challenges that the digital age is posing to the right to privacy and have been acting accordingly. The Office of the High Commissioner for Human Rights recognised the positive impact of technology, thanks to which access to information, global debates, and democratic participation are fostered. But at the same time, the OHCHR expressed its concerns towards some trends. Already in 2013, the former High Commissioner Navi Pillay cautioned the use of mass surveillance because of its possible undemocratic uses.[footnoteRef:8] So, in December 2013 the UN General Assembly adopted a Resolution expressing these worries and underlining that States must protect rights in the digital world the same way they protect them offline. For this reason, the GA urged States to review and update their practices and legislation, in order to face these new challenges and protect human rights. Moreover, The GA requested the High Commissioner to produce a report on the right to privacy in the digital age. The report received the contributions also from all the relevant stakeholders: Member states, Organizations, Civil Society, HR national institutions and Business entities. The aim of the 2014 report was to discuss surveillance, digital communications and the collection of personal data in order to point out the challenges and develop best practices. The GA reacted with vivid interest to the report and further called for states to act accordingly. It also suggested the Human Rights Council the idea of continuing on this path. For this reason, in April 2015 the HRC appointed a Special Rapporteur on the right to privacy. The first ever Special rapporteur is Joe Cannataci, who was appointed in July 2015 for a period of three years.
Mr. Cannataci has been working intensely over the past three years. In his first oral statement at the HRC, he pressured for the creation of new balance, while maintaining human dignity at the centre. He produced a detailed action plan for the following years, focusing on some specific areas of interests. The Special Rapporteur promptly analysed and debated the new challenges brought forward by the Apple vs. FBI case and he discussed them in front of the General Assembly in August 2016. The following paragraph will explain the developments of the Apple vs. FBI case.
The case In the Matter of the Search of an Apple iPhone Seized during the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203 in the U.S. District Court for the Central District of California, commonly known as Apple vs F.B.I. is a 2016 case on the possible investigation of a blocked phone. On December 2, 2015, in San Bernardino, California, 14 people were killed and 22 were injured in a terrorist attack carried out by Syed Rizwan Farook and Tashfeen Malik, a married couple. The couple was later killed by the police while they were attempting to flee. Shortly after the United States Federal Bureau of Investigations, after a search warrant, came in the possession of the iPhone that belonged to one of the deceased shooters. The phone was encrypted by a code programmed to delete all the data after 10 mistakes in inserting the code. For this reason, FBI requested Apple Inc., the creator of the phone, to develop a software that would allow them to break into the shooter’s phone, in order to gain sensible information. Apple and its CEO Tim Cook strongly opposed from the very beginning. Therefore, the FBI took the matter to court and a judge issued a sentence ordering Apple to help the FBI. Apple rejected the sentence on the grounds that it was unlawful and unconstitutional.
Tim Cook explained the reasons behind Apple’s strong stance: while they deeply respect the FBI and tried their best to help with the investigations, Apple simply cannot agree to act accordingly to what was requested. He explained that phones nowadays contain all the sensible and private information of an individual and creating this kind of software could have dangerous consequences. It could fall in the wrong hands or it could be used for different aims. Even if it was destroyed, as Tim Cook explained, it would not disappear, because things in the digital world are never really gone. Tim Cook also expressed its concerns on the use of the All Writs Act of 1789 to expand the FBI authority. It would create a precedent allowing the government to access all phones and require Apple to create software to intercept and seize all data of unknowing citizens, a clear violation of the right to privacy. Afterwards, the FBI requested the cancellation of the court hearing, as they found another route to access the terrorist phone thanks to the input of a third party.
As expected, the Apple vs FBI catalysed the interests of many actors, including the UN and newly appointed Special Rapporteur on the right to privacy Joe Cannataci and the now ex high commissioner for human rights Zeid Ra’ad Al Hussein.
The HCHR Zeid provided various examples to justify his interest and preoccupation with the Apple vs FBI case: he expressed his concerns about the implications for human rights and the risks for physical and financial security of millions of people. Mr. Zeid pointed out that the whole situation was faced by the FBI as it would matter only for the single case, ignoring the possible wider implications. The case would set a precedent for Apple and any other IT company in the world, forcing them to breach the safeguards of the privacy of their clients. The Human Rights Chief then underlined that allowing IT Companies to create software to unblock phones would help authoritarian regimes and endanger human rights defenders, civil society, journalists, whistle-blowers and political dissidents facing persecution and harassment that count on the encryption of their phones to be safe and carry on with their activities. The High Commissioner continued explaining that we are facing a dilemma, what is the correct balance between the right to privacy and security, with the latter having the upper hand. Mr. Zeid stated that he understands why this is happening, but he fears that those concerned with only security issues are missing the bigger pictures and what it would mean to weaken encryption and the dangers associated with such practice. He finished wishing for the debate to be carried out more deeply, in order to understand the ever-evolving relationship between privacy and security in the digital age and its implications for many human rights.
Mr. Cannataci wrote a report that was transmitted to the UNGA in August 2016 in which he touched the subject of the Apple vs FBI case and raised another interesting point: the right to remain silent and smartphones. When the debate on the Apple vs FBI case came into the attention of the Special Rapporteur, he followed the position expressed by Mr. Zeid and explained that creating backdoors to encryption is an undesirable practice. Mr. Cannataci explained that in his role as the Special Rapporteur on the right to privacy he would like to explore more deeply the relationship between technological devices, such as smartphones, and other fundamental rights, that would end up having an impact on the right to privacy. First of all, the right to silence. The Special Rapporteur urged for an updated understanding of the right to privacy, in which all the changes that came with the digital age are contemplated. The right to silence and the right to avoid self-incrimination have been gradually recognized around the world as the basis of decency of a democratic society. Clearly, a judicial warrant to search a phone would undermine such rights. A smartphone can contain a quantity of sensitive information, thoughts, interests, and actions that would reduce the right to silence to nothing. The Special Rapporteur continued wondering about the status of phones, are they a compellable witness, even though they need a search warrant, or not? He concluded hoping to develop further the debate on this matter and welcomed the collaboration of the other special rapporteur.
In conclusion, the debate on privacy and encryption is much more complicated than one can imagine. I do agree with Mr. Zeid, the debate between security and privacy must be rethought. Probably right now the vision is obscured by the tragic events of the past few years and it comes easy enough to spurt opinions; a common person might be willing to give up part of their privacy for the greater good. The international community must intervene strongly and protect the citizens. Creating precedents that allow the breach of encryption might have dire consequences. As we have seen in this essay, if governments start to force IT companies to create backdoors to encryption for security reason, they soon enough might use those software for alternative motives. These software might fall in the wrong hands, of hackers or crypto-criminals, or they might be used by corporations to push forward their interest. A strong invasion of privacy could be easily used by authoritarian regimes to silence opposition, or it could jeopardise the work of human right activists and whistle-blowers. It is necessary to understand that the digital world is dangerous, and the rules that it follows are different from those in the real world. The UN is responding strongly to these threats and the Special Rapporteur is encouraging the debate. The right to privacy is an ever-evolving right that is deeply connected to many other fundamental rights and therefore its protection and the debate on its status must be updated and must keep up with the times.