In the United States, political powers are using private platforms as an armed wing to bypass the limits of the rule of law. Opening up new scenarios for control in the digital society by Andrea Monti – originally published in Italian in La Repubblica-Italian Tech
ICE Block and its removal from stores
On 8 December, the New York Times published the news that the developer of ICE Block, an app for Apple and Android smartphones that allowed users to indicate where US immigration agents had been spotted, had sued the Department of Justice, challenging the Trump administration’s request to remove the software from the Cupertino company’s store and from the Android store.
Public safety or political pressure?
The subject of the dispute is not so much the merits of the issue (whether it is lawful to “map” the location of law enforcement officers) as the way in which the executive branch achieved the result of blocking the app’s distribution.
In substantive terms, the concerns expressed by the Department of Justice are understandable: private tracking of police officers, on the one hand, allows criminals to move with greater “privacy” and, on the other, risks turning officers into “moving targets”. On the other hand, it should also be noted that widespread public monitoring of police activities — for example, to document the presence or absence of control in the territory — is difficult to contest because it concerns the exercise of citizens’ political rights.
A story that repeats itself: from PGP to today’s apps
This (not so) apparent contradiction is not new because it already emerged in the early 1990s with the spread of PGP, the software written by Phil Zimmermann that gave strong encryption to the masses and whose author ended up on trial for exporting military weapons.
Over the decades, and with ever-increasing acceleration, first software and then apps — which are also software — have reintroduced this seemingly irreconcilable contradiction.
Anonymous emails, encryption software, applications and platforms for “secure” communications have become the nightmare of law enforcement agencies and the target of actions to reduce their spread among users. At the same time, however, they are also widely used by those who hold and wield power. In between are individual developers and Big Tech, who become the subject of contradictory decisions that are sometimes not in line with the rule of law.
For example, in the present day, since 2020, India and China have adopted significant restrictions on the use of software such as WhatsApp, in 2024, France obtained privileged access to Telegram users following the arrest of Pavel Durov, the company’s founder, and the European Commission is once again seeking to impose preventive and systematic searches of devices in the name of “child protection” through the chat control regulation. Recently, as mentioned, Russia has declared its intention to block Facetime.
The app war as a matter of the rule of law
The common feature of these decisions is that, in every case, they were not taken by order of a judge, after an analysis of the balance of interests involved and the specific facts, but on the basis of political decisions taken by executives in the name of “prevention” and “national security”, i.e. principles that by their very nature are difficult to associate with specific facts and which, therefore, are always suspected of being applied for (geo)political purposes rather than for the protection of individual rights.
This presents Western democracies with a structural contradiction. Countries with “variable democracy” can afford not to be too subtle, even while respecting empty legal forms. Western countries, on the other hand, are constrained by the law and, as in the case of ICE Block, resort to informal pressure rather than legal instruments, which are nevertheless fully available to them. As proof that this attitude is independent of political affiliation, it is enough to recall Mark Zuckerberg’s admission that during COVID, posts on Facebook were censored at the request of the executive branch, not the judicial branch.
So, returning to the news, Apple and Android discovered, thanks to a report from the US Department of Justice, that ICE Block violated the terms and conditions for publishing software on their stores and therefore removed it. In other words, there is no need for a legal ban: it is enough to invoke the terms of service, and thus the platforms become the informal extension of state power.
The problem is the limit (if any) on the right to protest
The ICE Block case is also paradigmatic of another problem: the political use of technology. It is clear that, unlike FourSquare or other software that works on the principle of geolocating things and people, ICE Block was created with a declared political intent: to counter the US government’s migration policies. So, the point is not the technology itself but the declared goal pursued by those who use it and the will of the powers that be to prevent this goal from being achieved.
If this is the case, then it is clear that we are all skating on extremely thin ice. Regardless of the merits of the specific issue, limiting the right to dissent, including through technological means, is an existential choice for the democracy of a state and is a decision that cannot be taken, if it must be taken at all, without serious public debate and rigorous judicial review.