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Apple has refused to comply with a U.S. court order that would compel it to design software to allow the FBI to break into an iPhone used by San Bernadino terrorist, Syed Rizwan Farook.

The government contends that it must have access to encrypted internet “dark spaces” to fight to ISIS and other terrorist organisations where they recruit and organise. Apple counters that unbreakable encryption is necessary to protect customers from cybercrime and the erosion of civil liberties by oppressive
governments around the globe.

So far, Facebook CEO Mark Zuckerberg, Microsoft, the high commissioner for human rights at the United Nations and, perhaps more importantly, a federal judge in Brooklyn have backed Apple.

The thirteen principles embodied in the Privacy Amendment Act 2012, although not specifically designed to deal with this new and troubling situation, may provide a stepping off point for the development of a new body of privacy law to address these issues.

In any event, it is clear that this is a pivotal moment in the struggle between tech companies with their enormous capacity to collect and store data and law enforcement, which has long sought greater access to that information in the name of public safety.

A New Twist
U.S. law enforcement authorities can generally get a judge to issue a search warrant for information or evidence in the possession of a third person if the authorities can demonstrate that they need it. In similar vein, Privacy Principle 6 requires an entity to disclose information where required or authorized by an Australian law or a court/tribunal order.

Apple has already turned over the data that had been stored in Apple’s cloud storage. But the FBI’s ill-fated decision to reset the phone’s password after the shootings ultimately prevented data from the weeks before the attack from being backed up again. The information that the FBI seeks cannot be reached with a search warrant because Apple does not have it. The Privacy Principles are similarly silent about a court’s power to compel affirmative steps to unlock otherwise inaccessible data.

Now, the FBI seeks to compel Apple to write software to break into its own security system. Alternatively, some suggest, the FBI could use its own resources to create this code, thereby side-stepping some of the free speech issues involved in compelling Apple to write the program.

But that is hardly the most troubling question.

Pandora’s Box?
What will happen once a way to break Apple’s encryption exists? The FBI insists that it intends to use the program only once, to break into Farook’s iPhone.

However, this is not the only criminal investigation stymied by a blocked mobile. As Congressional hearings recently revealed, there are 205 locked iPhones currently held by police in New York alone. It is difficult to credit speculation that law enforcement would be content to forbear indefinitely.

Apple further raises the prospect that such a program might easily fall into the hands of cyber criminals or governments with little or no interest in safeguarding the privacy of their citizens. Alternatively, criminals might adapt forward, using other methods to communicate with encryption mechanisms even more secure than those now offered by Apple.

Those inclined to hyperbole have already begun to lament the death of privacy. This may be a step to far, but this is the challenge that new international privacy laws must address.

Global privacy laws are clearly being challenged in ways previously unimagined. If you have questions about protecting the privacy of your business or personal information, please contact an attorney at Owen Hodge Lawyers to schedule a consultation at 1800 780 770.

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