Dear Home Secretary and Secretary of State at the Department for Science, Innovation and Technology

A threat to the Rule of Law

I was not surprised to see Apple intends to appeal to the Investigatory Powers Tribunal in relation to the UK Government’s apparent decision to issue a Technical Capability Notice in respect of the provision of their ADP service in the UK.

What I was surprised to hear was a rumour to the effect that the Government may withdraw its Notice. I appreciate in cases of this kind all manner of speculation is inevitable so I just wanted to say how very much I hope the rumour has no foundation in fact and how much I hope the Government will stand its ground.

No liberal democracy has ever legislated to say privacy is an absolute or unqualified right. No international human rights or other Treaty or Convention has ever declared privacy to be an absolute or unqualified right. Yet ADP, in effect, makes it one and it does so at scale.

Every Treaty and Convention relevant to this issue, and the law in every liberal democracy, says privacy is one right among many, a right to be balanced with others. But you cannot balance anything with zero.

In this context, ADP and similar systems routinely produce zero.

In effect ADP and similar systems therefore actively prevent Governments from upholding the rights of others by privileging and protecting those who have chosen to use strong end-to-end encryption, or a service based on it.

What is at issue here, consequently, is our stance on the Rule of Law.

The Directors of a company based in California, or anywhere else for that matter, have no legal or moral right effectively to decide to render UK courts mute and impotent.

You will appreciate Apple is not on a human rights crusade. Apple is selling and promoting its brand. You will also be fully aware that tech companies gain a great deal, financially, from the extension of strong encryption. It reduces overhead costs and a range of potential legal liabilities. One cannot moderate or be taken to court for something one cannot see, seemingly even if the Apples of this world have deliberately ensured they cannot see it.

But, as is well known, not all of the actors in this space are driven by commercial considerations. Some are NGOs whose members are privacy absolutists. For them, the threats to children, to women and members of the public are problems for somebody else to solve. They have a very particular view of how the world is or ought to be. They too have no legal or moral right, unilaterally, to elevate privacy to something no legislature, Treaty or Convention has ever said it should be.

You will be acutely aware that strong encryption is vital in some areas but its indiscriminate deployment in others is creating huge problems. Mass messaging systems using strong end-to-end encryption have become a major vector for every kind of crime, from the trivial and annoying to the deadly serious.

If HMG withdraws its Notice, I believe there is a risk it will look as if we have given in to bullying by US entities and that we have abandoned any ambition to ensure the Rule of Law is not diminished in the UK.

In the last couple of weeks, I have written two blogs on or around these points. The links are below. You may find them of interest. I apologise for their length.

https://john1912.substack.com/p/apple-challenges-the-rule-of-law

https://john1912.substack.com/p/a-message-from-america

US Federal law allows law enforcement and security agencies to require firms to hand over encrypted data, from wherever in the world it is held but, bizarrely, they have no power to require firms to decrypt whatever they hand over. The previous Trump Administration more than once expressed its concern about this legal lacuna. The last UK Government and all the other Five Eyes Governments joined with them.

If you want to gain some insight into how the general public in other European countries feel about some of these matters, you may find the links shown below to be of interest. They underscore how, if properly explained, i.e. not left to the likes of Apple and Big Brother Watch, public opinion is hugely supportive of what HMG want to do.

ECPAT and NSPCC child online safety poll: Questionnaires – ECPAT

What do the EU citizens really think about data privacy and child protection online? – ECPAT

Finally, while I appreciate officials may have felt bound to observe the letter of the law in relation to the secrecy which is meant to surround these things, someone somewhere should nevertheless have anticipated the certainty of leaks and had a political response ready.

As it was, the field was left clear for Apple’s friends, allies and shills to put forward a highly distorted, sensationalised account of what is at stake. I attended an APPG on Cyber Innovation earlier this week where exactly this was happening. It was apparent the MPs in the room who are officers of the APPG were not sighted on the Government’s position.

Yours sincerely,