By Burtley Francis and Kathleen Leighton

Order Up: Apple, P.I.

Recently, the public safety versus personal privacy debate has been brought to main headlines. Apple is facing a court order (available here) requiring the company to assist the FBI in the investigation of the San Bernadino attacks. An iPhone of one of the shooters was found in a warranted search, and the FBI wants Apple to unlock it. In brief, the order states that Apple must provide “reasonable technical assistance” to the FBI by creating and installing software on the phone so the FBI can bypass security features and access otherwise protected data – namely, create a new version of the iOS operating system that will not erase data on the phone after 10 failed attempts of guessing the passcode and force install it on the subject phone.

Apple’s president, Tim Cook, wrote an open letter (available here) stating why Apple is advocating for the privacy rights of its customers and challenging the FBI’s demands. While not condoning or diminishing the gravity of the attacks that occurred, Apple believes this order is unpalatable due to the slippery slope it will create. The result of compliance is not only the creation of a technological “backdoor”, potentially allowing the government to hack into any user’s iPhone with similar software, but also a legal / precedential backdoor.

The impact of Apple’s challenge as it develops and works its way through the courts will go beyond its customers and even beyond geographic borders. So where does Canada fit into this…

Canada Doesn’t Fall Far From the Tree

Perhaps after reading various articles, you dismissed this battle as not being relevant in Canada since (a) Canada does not have an All Writs Act (the US statute under which the order was granted); (b) this matter will be dealt with in US courts which do not serve as strict legal precedents in Canada; and (c) the Order relates to a single iPhone owned by a US citizen. How could this possibly impact my privacy rights in Canada, then, right?

Well, not to suggest that the US is the tree to our apple, but Canada does have a fairly similar legal landscape with some of our Criminal Codeprovisions. Specifically, where a warrant or wiretap authorization is issued under the Criminal Code, a judge can use section 487.02 to make an “assistance order”, requiring any person to assist law enforcement in carrying out that warrant or authorization. Persons can also potentially be required to produce certain information in their possession, which could include electronic information.

Second, it is true that Canadian courts are not bound to follow US court decisions. However, while not yet official, the Trans-Pacific Partnership Agreement (the “TPP”) (which would create a free trade relationship between Canada and 11 other countries if it is ratified) could provide a framework that would allow the government of the day in Canada, or the foreign government of a member country, to obtain similar orders to compel Canadian companies to provide access to personal information of Canadians. Specifically, one section of the TPP discusses limitations on the ability to require a manufacturer or supplier of a product to access information by circumventing encryption protections. This seems to enhance data protection and prevent compelling companies from making encryption backdoors. However, when you keep reading you find the TPP also contains the following “clarification” of these limitations – that really does not clarify, as much as it actually unravels, the previously stated protections:

… nothing in this Section shall be construed to prevent law enforcement authorities from requiring service suppliers using encryption they control from providing, pursuant to legal procedures, unencrypted communications.

This certainly sounds a lot like the order made against Apple, so not only would Canada be able to make a similar order, but any member country of the TPP could require someone to decrypt data it wants to get its hands on.

Finally, yes the Order is a direction compelling Apple to assist in unlocking this one iPhone owned by someone in the US who committed a heinous act of violence. But the implications go beyond this one phone. Apple spent years and likely invested millions of dollars to develop this level of “unbreakable” security on its iPhones specifically to protect the personal information of its customers. These iPhones are sold to millions of customers around the world. If Apple does comply with the Order, it will be creating a backdoor (that does not currently exist) that could be used to unlock every similar iPhone around the world. As Tim Cook says, this effectively amounts to Apple “being forced to expose its customers to a greater risk of attack” by cyber criminals who could potentially track your location, or even access your phone’s microphone or camera without your knowledge. Furthermore, if this Order is upheld, what will stop the government from using the “you did it then, so you can do it now” argument on Apple the next time to make new backdoors into their products? Forcing Apple to create a key that could unlock millions of phones around the world, which exposes millions of people to an increased risk of cyber attacks, seems to be at odds with the goal of achieving greater public safety.

And that leads us to …

The Core of the Issue

Tragic events like these heighten the discussion and understandably lead to questions that tug at the balance between individual privacy and public safety. There are those whose main consideration is the prevention of future terrorist attacks at all costs, and those who fear the threat of a government given too much power to access the personal lives of its own citizens.

It’s easy to shrug off the importance of privacy in times of tragedy or fear, or to accept the “if you haven’t done anything wrong, you have nothing to hide” argument, but privacy is rooted in our dignity and autonomy as individuals. It forms part of our right to be free in society. It underlies our rights to life, liberty, and security of the person and our right to be secure against unreasonable search and seizure, as enshrined in the Charter of Rights and Freedoms. As Canadians, we have a right to both privacy and safety.

The discussion is often framed as an “either/or” or “one-for-one” proposition – that is one goal is only seen as being achievable at the expense of the other. This, however, oversimplifies (and mischaracterizes) the debate as a zero sum privacy Armageddon moment where either the FBI wins and individual privacy rights are lost, or Apple wins and individual privacy rights are saved.

These rights must be balanced, not traded-off against one another. An incremental loss of individual privacy rights does not equal a matching incremental gain in public safety. For example, one may argue that greater surveillance leads to greater threat identification and prevention; however, is greater surveillance always the most effective and efficient means to this end? To take the argument further, even imagining a world where perfect surveillance and complete access to the personal information of all individuals exists, complete public safety would not necessarily be achieved. Which leads us to the question “How do you put all these considerations together?”

Serving it Up

If an order like the Apple order were sought in Canada, it would certainly not be the first time Canadian courts have wrestled with balancing individual privacy rights and public safety interests. Interestingly enough, Canadian courts have reaffirmed the importance of privacy rights time and time again. As recent examples:

• • In 2012, the Supreme Court of Canada (the “SCC”) struck down a provision of the Criminal Code in R v Tse that allowed police to use a wiretap or other electronic interception with no warrant if the situation was an emergency. The fact that an emergency existed did not justify the complete lack of government accountability involved. Notice and transparency after the interception were required to legitimize this power due to the grave privacy invasion that resulted.
  • In 2014, the SCC made it clear in R v Spencer that individuals (even someone alleged of possessing child pornography) have a reasonable expectation of privacy in their online activities. Obtaining information from a person’s ISP without a warrant or court order amounts to an unreasonable search and seizure, since such information can reveal intimate details of a person’s life.
  • Also in 2016, an Ontario court ruled that an order by the Peel Regional Police in Ontario for Telus and Rogers to produce personal information from 40,000 customers to help them investigate jewellery store robberies was a flat-out breach of Charter rights. Teresa Scassa, the founder of the Canadian Journal of Law and Technology and a law professor at the University of Ottawa, in an interview with the CBC, emphasized an important point made by the judge in the Rogers and Telus case about the balance between privacy and public safety:

The judge makes it clear that the information that is sought by police should be really limited to the purposes of the investigation… It shouldn’t be a fishing expedition through all of the possible data that the police can extract from the telephone companies.

In Canada, if we faced a situation like the Apple and FBI battle, it would not be as if we were dealing with a hurtling asteroid set to destroy all privacy rights forever. The Charter is always in the background when our fundamental rights are at stake, and it helps us achieve safety without unduly sacrificing our privacy. However, to prevent erosion of fundamental privacy rights, there must always be clear and transparent rules about the specific situations in which personal information can be gathered, the acceptable methods of gathering information, and the precise uses that information can be put to, coupled with a strict court oversight of those rules and government accountability. So, while this may not be the signal of a pending privacy Armageddon, we don’t want to close our eyes, or fall asleep on how Apple’s challenge unfolds.

In the movie Armageddon, Bruce Willis is a specialized expert driller sent by the US government to stop a massive asteroid on a collision course with Earth by drilling through the asteroid’s dense outer core to crack it and prevent the end of the world. Here, Bruce Willis is played by Apple (a tech company with specialized engineers asked by the US government to drill through the layers of security features and crack the phone) – but instead saving the world (i.e. the privacy rights of its customers) means actually not cracking the phone.