Apple CEO Tim Cook responds to a question during a news conference in New York. (AP Photo/Richard Drew, File)
The recent firestorm between Apple, arguably the most valuable company in the world, and the Department of Justice regarding access to cell phone data has filled the headlines. Wrapping itself in the mantel of privacy protection, Apple is refusing to honor a court order to assist federal officials in accessing data from mass murderer Syed Rizwan Farook’s encrypted cell phone. In so doing, Apple has held itself out that the great protector of privacy. Since that initial announcement, other commercial giants such as Facebook, Twitter, and Google jumped forth to support Apple.
Do not be fooled.
In the last several years a curious alternate reality has been created at the intersection of technology, privacy, and law enforcement. After Edward Snowden revealed the existence of government data collection previously unknown to the general public, the narrative surrounding how best to deal with the tension between privacy and security shifted. The focus moved from preventing the collection of personal information, to more narrowly just precluding the government from accessing this information. Government intrusion is a valid concern to be sure, but commercial entities have manipulated this dialog to portray themselves as some form of personal information guardians, when, in fact, they are panderers of this information.
This idea that Apple, Facebook, Google or any other similar entity is fully shielding people’s privacy is a fiction. They have engaged in a phenomenon called “commercial conditioning” in which one corporate hand conditions customers to sacrifice their personal information to commercial entities, while the other hand constructs obstacles to law enforcement obtaining this information. These very companies not only claim, but advertise that they protect customer privacy from the government. Yet, in actuality they accumulate and aggregate information from their customers, often without their meaningful voluntary consent, and share it with other commercial entities on a regular basis.
It is time for everyone to wake up and understand that these companies are not in the business of selling us products we use. We are the products they sell.
Although Apple may be less in the business of information selling, as it actually sells hardware, Apple, Google, Microsoft and other similarly situated companies all have documented cases of alleged data collection and all have in their terms of service notice that they will do so. Under the guise of “sharing with our strategic partners,” blanket statements reserving the right to “collect, use, transfer, and disclose non-personal information for any purpose,” or other similar language, these companies collect, package, and share this information to suit their business interests. This occurs while publicly positioning themselves as their customers’ protectors against the government. In so doing, a perverse world has been created in which people are actually unable to protect their privacy from commercial entities, and the only entity restrained from obtaining the information is law enforcement.
The question of government access to encrypted phones is indeed a challenging one. The court order at issue in this case does have far reaching consequences not only in the United States, but in other more totalitarian nations as well. Although the answers are far from clear, the arbiters of the solution are absolutely not these companies.
The irony that corporations whose very business model is based on collecting information from users, now are objecting to the government obtaining information from one user is inescapable. No matter how this issue is resolved, the suggestion that these commercial entities — who gather information about their customers and then often sell it to the highest bidder — are the true privacy protectors should be rejected for the fiction it is.
Mary Graw Leary
Mary Graw Leary is a Criminal Law Professor at the Catholic University of America and her most recent article, The Supreme Digital Divide (Texas Tech Law Review) discusses the knowledge gap of the Supreme Court regarding technology and crime.
Apple CEO Tim Cook responds to a question during a news conference in New York. (AP Photo/Richard Drew, File) 
