My Private Apple

By November 28, 2016news

Privacy is becoming something of a new dogma.  There is a growing belief that we are entitled to our “privacy” and it must always be respected.

This is the type of argument used by Apple when it refused to try and develop a programme to assist the FBI unlocking the cell phone of the terrorist Syed Farook – you have probably read about this case.

The law in England is, somewhat unsurprisingly, not so straightforward. There is no “right to privacy” in England.

Breach of Confidence is a common law tort (a civil wrong) recognised by the courts for (amongst other things) protecting private information.

So the disclosure by doctor’s receptionist of her neighbour’s private medical information to third parties may give rise for a claim for damages for breach of confidence.

The Human Rights Act came into force in October 2000. It gives direct legal force in the UK to the Articles of the European Convention on Human Rights.

Article 8 of the Convention provides that everyone has the right to respect for their private and family life, their home and their correspondence.

Article 10 of the Convention provides that everyone has the right to freedom of expression, the exercise of which may only be subject to restrictions that are reasonable and necessary in a democratic society.  This includes the protection of the reputation or rights of others and preventing the disclosure of information received in confidence.

You may remember Breach of Confidence and Article 8 were argued in the case of the model Naomi Campbell v MGN when the Court confirmed the principal test for determining whether or not information qualifies for protection under Article 8 of the Convention is to ask “whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”.

You might also remember the case of Mosley in which the court held that the now-defunct “News of the World’s publication of video footage and two articles including still photographs in which it alleged that Mr. Mosley had engaged in sadomasochistic sexual practices with a Nazi theme infringed his Article 8 right to privacy.

The court held that Mr. Mosley had a reasonable expectation of privacy:

  • People’s sex lives were to be regarded as essentially their own business; and
  • The newspapers’ intrusive behaviour could not be justified by an Article 10 “public interest” argument.

It can be argued from those two cases and other similar ones that there is a new tort of “misuse of private information.”

The Data Protection Act protects your personal data such as your medical records, credit reference files and your employment file.  Data held about you has to be kept securely and only relevant people should have access to it.

The Police can search and seize anything if there are reasonable grounds to believe it has been obtained in the commission of an offence or it is evidence that must be seized to prevent it being concealed, lost, altered or destroyed.

If it is not reasonably practicable for the Police to make images of any computer on the premises then it can be removed for examination elsewhere.

The Regulation of Investigatory Powers Act regulates the interception of communications, surveillance and access to data.

So “privacy law” in England is a net of safeguards ensuring, for example, the Police and government institutions and newspapers comply with Article 8.

There is no general right that any data you hold should be exclusively private to you from all comers.

The various nets and safeguards however do generally agree with our idea that we have some expectation that our private matters will remain private unless it is necessary and appropriate for the state to look in.

What do we do when encryption, which may be necessary to keep our data private and secure online, is so powerful that the police cannot access your private data?

Apple’s argument seems to rest on the belief that everyone is entitled to absolute “data privacy”.

To my mind that cannot be right.

It is the same as saying that everyone has a right to a cupboard in their home, let us call it the “Apple Box”, which no Police or enforcement agencies are ever allowed to enter under any circumstances.

Imagine your child has been kidnapped. The Police catch the culprit, Mr Sade, and he admits to the offence.  He will not tell them where he is keeping your child.  Mr Sade was caught 24-hours ago and your child is now in danger of death.

The Police have searched Mr Sade’s house for clues of where your child may be held.

In the house is a map with a page torn out.

The culprit confirms to the Police that there is an X on the torn out page which marks the location of the building in which your child is being held, a disused warehouse perhaps, he teases.

However, he tells the Police that the marked page is in his Apple Box.

Although the Apple Box is unlocked, because of Mr. Sade’s absolute irrevocable right to the privacy of his Apple Box, the Police cannot look in it.

Thus, Mr Sade’s right to the absolute privacy of his Apple Box trumps your child’s right to life.

What nonsense!

What about a similar argument in support of torture.

At this point in time torture is completely prohibited in any degree in any circumstance.

How uncomfortable would you be prepared to make Mr. Sade to obtain the location of your child?

What if, rather than Mr. Sade, the Police have caught Mr. Dogmatic, who is a terrorist.

Mr. Dogmatic knows the other members of a terrorist cell.

The Police know from previously intercepting Mr. Dogmatic’s communications, he has been in touch with his colleagues, and they are planning a large explosion, some time soon, in a school near you.

Mr. Dogmatic confirms he knows the names of the other terrorists and traitors but will not give them up.

The Police also know from Mr. Dogmatic’s communications that 100 kilograms of semtex has been obtained together with demolition expertise.

It seems likely the explosion in the school may collapse the whole building, killing hundreds, if not thousands of innocent people, mostly children.

All we can do is talk to Mr. Dogmatic and give him various persuasions, inducements and encouragements.  If he refuses to give us the information we cannot make him uncomfortable.

To refute any such argument in support of torture most do not argue that, say, waterboarding Mr Dogmatic is wrong, but turn to a theory of ethics called “consequentalism.” In other words, what would be the consequences for our society, and the worldwide consequences for the UK, if our Police were allowed to waterboard suspected terrorists or child kidnappers?

There is not enough room here to consider all the possible consequences but it does not take long to realise there are strong arguments against torture and arguments about the Apple Box point the other way.

It is a dangerous proposition which argues to prevent the people who are trying to protect us looking at our private information in all circumstances.

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