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THE iPhone that started it all was found in the rented car used by Syed Rizwan Farook and Tashfeen Malik, after both had been killed by police in December. Four hours earlier the pair had killed 14 people and wounded 22 more in a mass shooting in San Bernadino, California.

The FBI thinks the phone holds valuable evidence but has been unable to bypass the phone’s lock screen to access the information stored on it. Last week, the FBI publicly demanded that Apple help it break in. Apple said no.

In an open letter to customers posted on Apple’s website, CEO Tim Cook argued that breaking into the phone would weaken the security of every iPhone. Cook made it clear that in its civil disobedience Apple was making a stand against the US government to protect the rights of all its customers. It was a popular move. The letter has been shared hundreds of thousands of times across various social media sites.

Such a public stand-off is unprecedented, highlighting the power that Apple – and tech giants like it – holds on account of its vast userbase. What the FBI wants is achievable from a technical point of view (see “What the US government wants”). But it is a political minefield. By choosing to carry out the confrontation in public, both the FBI and Apple are hoping to set a precedent in the court of public opinion in the ongoing battle over who has control over our private data, which is increasingly a key to our wider lives.

“Tech giants are the new wave of colonialism – they’re creating their own empires”

“Tim Cook’s letter is a real declaration of war,” says Ian Brown of the Oxford Internet Institute in the UK. “It’s almost the first war of the Information Age between state and non-state actor – the most powerful state actor in the world.”

A confrontation of this sort has been bubbling up ever since Edward Snowden released documents that shed light on the US government’s secret snooping on its citizens. That prompted several tech companies to make public statements opposing such surveillance activities.

In positioning themselves in opposition to states, tech giants have taken on certain state-like characteristics. “If you look at Google and Microsoft, they don’t just have the power of states, they even organise themselves like states,” says Brown. “Microsoft has a foreign service that negotiates with foreign governments.” Facebook has its own internal counter-terrorism unit.

“This is quite a moment in history – will citizens support companies standing up for them?”

Paul Bernal at the University of East Anglia, UK, sees a parallel between Apple’s fight with the FBI and Facebook’s recent battle with India’s telecoms regulator. “There’s a sense that the tech giants are the new wave of colonialisation,” he says. “In a way, they’re creating their own empires.”

Harry Halpin at the World Wide Web Consortium points out that these companies also co-opt certain functions of states. Governments issue their citizens with passports and driver’s licences to verify identity. Online we use IDs provided by Google, Facebook and Apple. Digital payment systems tied to these IDs, such as Google Wallet and Apple Pay, give these companies even greater influence. This allows the world’s tech giants to govern access to our money, our digital possessions and our data.

“It’s not that nation states are becoming less powerful, it’s that some of their roles are being absorbed by post-national frameworks,” says Halpin.

The state-like power of large tech companies is also evident in their ability to minimise their tax bills around the world, placing themselves in direct opposition to   governments. In 2014, for example, Google moved $14 billion out of the EU to avoid tax.

Of course, there are other multinational corporations with large amounts of power. Because of its size, oil company Exxon has a lot of influence in the countries in which it operates, for example. Nor is it a new phenomenon. In the 18th century the East India Company effectively ran India and the Barings banking dynasty has been described as one of the six great powers of Europe.

Brand loyalty

However, tech giants have something new: millions of loyal customers, many of whom choose to side with companies over their government. This is especially true in the dispute about privacy and encryption. In this light, Apple is protecting its citizens.

“It always takes one to stand up,” says Nikhil Pahwa, co-founder of the Internet Freedom Foundation. “Others follow.”

But is this a good thing? Pahwa and colleagues spearheaded the Save the Internet campaign that helped defeat Facebook’s Free Basics programme in India – a campaign that largely attacked Facebook’s state-like pretensions. However, Pahwa supports Apple’s behaviour. Apple makes its money selling hardware, he says.  Facebook makes money by selling its users’ data. For Pahwa, Apple’s business model makes it a benign power.

Brown disagrees. Apple’s stand contains a major irony, he says. Apple’s protection of its user’s privacy may be a good thing – and privacy advocates applaud the firm’s stand – but its accumulation of power is dangerous.

Tech companies shouldn’t be above the rule of law by dint of the size of their customer base, says Brown. For all the FBI’s faults, the agency emerges out of a democratic system that – at least in principle – is designed by and for its citizens. Apple emerges out of the free market, and is beholden only to its shareholders. “How do you apply concepts that constrained states in the past – human rights, war conventions, trade agreements?” asks Brown.

Of course, it is important to remember that Apple’s public stand-off could just be a trillion dollar game of smoke and mirrors. Apple reportedly asked the FBI to keep its request sealed, hidden from public eye. Apple could be knuckling under behind scenes, bound by secret court orders, handing over the private keys. We have no way of knowing.

“This is quite a moment in history,” says Pahwa. “We’ll see whether citizens support companies standing up for them or not.” In the US, public opinion is easily swayed by concerns for national security. In the end, everything may ride on what’s on that phone – if we ever find out.

This article will appear in print under the headline “Apple vs FBI: First salvo in the information war”