Apple to take public powers’ role in children protection

Apple anticipates Italy and the European Union and announces the forthcoming adoption of technological tools that, in order to protect minors, will analyse the contents conveyed through its products. At stake is not (only) privacy, but above all national political sovereignty, writes Andrea Monti, adjunct professor of Digital Law at the University of Chieti-Pescara – Initially published in Italian by

In the name of the protection of minors, the EU is discussing whether to impose on providers of electronic communication services the automatic search of users’ communications. In the meantime, Apple anticipates the outcome of the political debate and announces an essentially similar initiative, supported by “machine learning”, which will allow the analysis of the contents stored by users on iCloud and, through special functions incorporated in the operating systems, will prevent the circulation of CSAM – Child Sexual Abuse Material.

Justified by the need to “protect minors”, Apple’s choice seems to be motivated more by a commercial necessity (to anticipate regulatory choices, to condition the outcome and avoid suffering obligations incompatible with its strategies) than by a genuine concern for fundamental rights. In other words, we might face a choice similar to the one adopted to be able to continue operating in China, which in practice has resulted, as the New York Times comments, in decisions that contradict the scrupulously maintained image of the Cupertino company.

In itself, there is nothing wrong with a company considering fundamental rights as a marketing lever and not as a political-religious creed in the name of which to sacrifice shareholders’ interests. However, the point is to be aware that certain limits are impassable, notwithstanding pursuing individual goals. This difference must then be clear, especially in the perception of policymakers and regulatory authorities.

Although the first and understandable reaction to Apple’s choice is to be concerned about the potential risks for the right to privacy, but also the protection of computer homes and the secrecy of correspondence, the situation is much more complicated and complex, because it involves, even before individual rights, the issues of national technological sovereignty, the control of the technological public order and, above all, the respect of rule of law.

For some time now, there has been a substantial delegation to the private sector of activities that should be the exclusive preserve of the State, such as the storage of data on telematic traffic imposed on Internet access providers, the imposition of blocks preventing access to network resources abroad and in Italy (the so-called “obscurations”), or the self-certification of the security features of the equipment to be used in the national telecommunications infrastructure.

Hopefully, the Cybersecurity Agency will stem this trend, at least from a strictly technological point of view. Politically, however, the path is already marked out at the Community level and, consequently, at the national level. Although the structural involvement of the private sector in critical sectors for the country’s security is debatable, at least it is still the subject of public debate and, consequently, of political evaluations.

When, on the other hand, a drastic choice such as the one unilaterally adopted by Apple is decided based on purely industrial logic and outside of any public control, we find ourselves faced with a private entity that, on the strength of its commercial power, is imposing a political choice that would be strictly a matter for Parliament. Moreover, suppose we want to make strictly legal considerations from the point of view of public security. Apple’s announced actions constitute acts of crime prevention. However, at least in Italy, that is permitted only to law enforcement entities and under the control of the investigating and judging magistracy.

Suppose, therefore, a private individual with an extensive capacity to influence the individual behaviour of his customers replaces the public policy decisions taken by an executive on a parliamentary mandate. In that case, it is a question of method that transcends the specific merits.

The dialectic between government and social partners (including companies) is an essential part of the democratic debate. By contrast, the same cannot happen when decisions affecting state sovereignty, the separation of powers and rights protection happen outside a country’s (not only geographical) borders.

The cold war in Italy ended a while ago.

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