The cancellation of the NHSX app is the latest in a series of national contact tracing projects that were changed to a decentralised approach as a result of Apple and Google’s refusal to change how Bluetooth operated on mobile devices.[1] These companies’ control over the world’s mobile operating systems has allowed them to have an unprecedented say in the terms on which they provide their services, resulting in several worrying implications.

1. Big Tech and National Sovereignty

Apple and Google’s level of control runs the risk of undermining the sovereignty of democratically elected governments and their policy decisions, as was the case with the NHSX app in the UK and elsewhere. This should be concerning, as unlike national governments that are (in theory) beholden to their citizens, companies are beholden to their shareholders, with profitability, rather than the protection of the rights and freedoms of their consumers, being the primary focus.

This is not to say that national sovereignty guarantees consumer privacy. In the case of the NHSX app, the government’s recent shift to a decentralised approach was largely the fault of Apple’s refusal to bend the rules, rather than the myriad privacy concerns that had been raised by experts.[2] Had the app been compatible, it would have almost certainly been rolled out; privacy be damned. In this case, big tech dominance has worked for the benefit of UK citizens.

Transnational corporations may generally be more suited to developing and managing a global tech product, as we again saw in the context of digital contact tracing. Apple and Google’s cooperation ensures that there is effectively one standard of contact tracing infrastructure worldwide, which operates successfully on the majority of mobile devices with the fewest infringements on users’ privacy. By contrast, the UK’s development of an app has resulted in issues of cross-border compatibility, the need for public disclosure and bureaucratic auditing, and politically-induced delays.

Any global tech product created by a single government will also face issues of trust. Citizens of another country are likely to be wary of a large-scale tech solution that is under the actual or implicit control of a single nation – see the current fears that TikTok is spyware for the Chinese government.[3] A privately-owned company only beholden to disparate shareholders has fewer reasons to abuse data for political purposes.

However, these companies will likely always have commercial reasons to sacrifice privacy for profit.

2. Privacy as a Marketing Tactic

With tech companies repeatedly facing privacy scandals (take the persistent example of people being recorded in their homes by Google Home’s AI and Apple’s Siri),[4] tech giants may well be accused of hypocrisy for their insistence on stringent privacy criteria when it comes to digital contact tracing. While these companies record and collect data as they see fit, regardless of the user’s informed consent, they prevent other parties from exercising similar levels of access and control, even if these are government bodies.

However, when looked at contextually, the new focus on privacy is likely a result of the ‘techlash’, which has transformed data privacy from a mere ethical consideration to a commercial necessity. With the giants of tech competing in areas as diverse as advertising, services, hardware and software, and some tech markets suffering from slim profit margins, the loss of even a small proportion of privacy-oriented consumers can be damaging. As a result, companies need to maintain similar levels of user protection as their competitors and set themselves apart where they can.

It is, therefore, unsurprising that Apple uses privacy as a marketing tactic,[5] a straightforward decision for a company that is not overly reliant on ad revenue. Google does not have the same luxury – with just over 70% of the company’s revenue in the last fiscal year coming from advertising, the monetisation of user data is a key part of its business model.[6] Despite Google’s murky incentives, the marketing war over privacy between Apple and Google can be seen in their recent back-to-back announcements of added privacy features, with Google announcing the automatic deletion of user data just days after Apple announced that in-app data trackers could only be used with user consent.[7]

The Apple-Google API creation for coronavirus apps could, therefore, be interpreted as another marketing ‘trick’ and an unwillingness to enter into difficult negotiations with national governments, rather than an ethical attachment to user protection. Additionally, enabling a data-collecting government app risks setting a precedent for capitulating to government pressure in other arenas such as national security and anti-terrorism efforts and opens Apple and Google up to criticism if user data is misused.

3. Appealing to Authoritarianism

Privacy being a matter of marketing rather than ethics becomes worrisome when taken with the fact that big tech companies also operate in authoritarian states. For example, Apple and Google have bowed to political pressure from Russia in the past, both showing the disputed territory of Crimea as a part of Russia on their respective map apps despite international outcry.[8] Further, a recent Russian law dubbed “the law against Apple” leaves the company at risk of being banned from the Russian market if they refuse to pre-load government surveillance apps onto iPhones.[9] When it comes to China, Apple’s dependence on the country for hardware manufacturing has left it threading a needle when it comes to angering the regime.[10] Even Google, a company that famously left the Chinese market over censorship issues, has only discontinued the development of a new, censored search engine for China in the past year and refuses to commit to an uncensored engine should the project restart in the future.[11]

Technology companies face a tightrope walk of competing cultures and national policies in maintaining their global competitiveness, and both Apple and Google have incentives to work with authoritarians if they risk losing access to a profitable market - once lost, this vacuum would quickly be filled by other companies. With the “law against Apple”, Samsung quickly announced they would happily continue to sell phones in the Russian market despite privacy concerns.[12] In the case of contact tracing, tracker companies such as Unacast and Cuebiq have still managed to step in and provide user location data to certain countries despite Apple’s and Google’s restrictions on app creation.[13]

The consequence is that Apple and Google have often been rule-takers in their relations with authoritarian regimes while working as partners and now rule-givers with democratic states. Authoritarian governments have significant bargaining power over tech companies for several reasons. These regimes’ single-mindedness turns public outcry into a less important restraint on government power; such an outcry may not be forthcoming to begin with if consumers are already used to restrictive measures. Additionally, the permissiveness of authoritarian regimes’ legal frameworks when it comes to national surveillance and censorship lessen tech companies’ bargaining power. By contrast, a democratic country would have great difficulty in outright banning either Apple or Google if they did not comply with the state’s legal demands, being reliant on fines and changes in taxation as the only methods of enforcement. As shown by the continued breaches of competition law by tech companies in the face of record-breaking fines (with France fining Apple 1 billion pounds this past March),[14] these methods have been generally unsuccessful. Fines are a cost of doing business rather than a deterrent.[15]

Conclusion

The conflict over contact tracing apps reveals that these companies are often in a position to dictate global privacy standards, although they may not always be motivated by ethical considerations or public interest. Moreover, these companies are still not strong enough to push back against authoritarian regimes’ demands. Should the importance of less privacy-minded markets increase, privacy protection is likely to no longer be a universal standard by either company.

[1]M Scott et all, ‘How Google and Apple outflanked governments in the race to build coronavirus apps’ (Politico, 15 May 2020) [Online] https://www.politico.eu/article/google-apple-coronavirus-app-privacy-uk-france-germany/ Accessed 01/07/20

[2]M Hancock, Health and Social Secretary, ‘Health and Social Care Secretary’s statement on coronavirus (COVID-19)’ (Daily Press Briefing on the Government’s Response to the Coronavirus Pandemic, London, 18 June 2020) https://www.gov.uk/government/speeches/health-and-social-care-secretarys-statement-on-coronavirus-covid-19-18-june-2020 Accessed 01/07/20

[3]Z Doffman, ‘Anonymous Hackers Target TikTok: Delete This Chinese Spyware Now” (Forbes, 1 July 2020) [Online] https://www.forbes.com/sites/zakdoffman/2020/07/01/anonymous-targets-tiktok-delete-this-chinese-spyware-now/#1549c85635cc Accessed 02/07/20

[4]G Kelly, ‘Apple’s Invasive iPad, iPhone Siri Recording Continues, Whistleblower Claims’ (Forbes, 24 May 2020) [Online] https://www.forbes.com/sites/gordonkelly/2020/05/21/apple-iphone-ipad-privacy-siri-recordings-ios-upgrade-iphone-11-pro-max-update/#382208423fc5Accessed 03/07/20

[5]M Burgess, ‘Apple’s privacy strength is also one of its greatest weaknesses’ (Wired, 21 May 2020) [Online] https://www.wired.co.uk/article/apple-security-privacy-competitive-advantage Accessed 02/07/20

[6]J Clement, ‘Google: revenue distribution 2001-2018, by source’ (Statista, 5 February 2020) [Online] https://www.statista.com/statistics/266471/distribution-of-googles-revenues-by-source/ Accessed 03/07/20

[7]S Morrison, ‘How to make sure Google automatically deletes your data on a regular basis’ (Vox, 24 June 2020) [Online] https://www.vox.com/recode/2020/6/24/21301713/google-auto-delete-location-youtube Accessed 01/07/20

[8]J Nadeau, ‘Apple has a Vladimir Putin problem’ (Fast Company, 29 January 2020) [Online] https://www.fastcompany.com/90456530/apple-has-a-vladimir-putin-problem Accessed 01/07/20

[9]Ibid.

[10]J Crabtree, ‘Apple has found itself caught between China and the US’ (Wired, 24 May 2020) [Online] https://www.wired.co.uk/article/apple-china Accessed 03/07/20

[11]J Baptiste, ‘Confirmed: Google Terminated Project Dragonfly, Its Censored Chinese Search Engine’ (Forbes, 19 July 2019) [Online] https://www.forbes.com/sites/jeanbaptiste/2019/07/19/confirmed-google-terminated-project-dragonfly-its-censored-chinese-search-engine/#7d4b9f7e7e84 Accessed 02/07/20

[12]‘Samsung Backs Russia’s Law Against Apple’ (The Moscow Times, 18 February 2020) [Online] https://www.themoscowtimes.com/2020/02/18/samsung-backs-russias-law-against-apple-a69326 Accessed 02/07/20

[13]S Schechner, K Grind and P Haggin, ‘Tech Firms Are Spying on You. In a Pandemic, Governments Say That’s OK’ (Wall Street Journal, 15 June 2020) [Online] https://www.wsj.com/articles/once-pariahs-location-tracking-firms-pitch-themselves-as-covid-sleuths-11592236894 Accessed 01/07/20

[14]‘Apple hit with record €1.1bn fine in France’ (BBC, 16 March 2020) [Online] https://www.bbc.co.uk/news/world-europe-51906033 Accessed 03/07/2020

[15]A Griswold and A Shendruk, ‘It will take more than big fines to tame Big Tech’ (Quartz, 19 November 2019) [Online] https://qz.com/1744038/why-antitrust-fines-arent-enough-to-rein-in-the-tech-giants/ Accessed 02/07/2020