Representatives for ten top UK news organisations spent Friday unsuccessfully camped outside the doors of a secret tribunal waiting to argue an “unprecedented” appeal over access to Apple users’ data underway inside must be heard in public.
They say it is “outrageous” and “absurd” that the appeal, over the UK Government’s ability to access Apple customers’ encrypted data under the so-called “Snoopers’ Charter”, is being held in secret despite “overwhelming” public interest and widespread coverage.
Apple is appealing to the Investigatory Powers Tribunal, which oversees the Government’s surveillance activity, after the Home Office issued a Technical Compliance Notice (TCN) requiring the tech giant to hand over access to its users’ most highly-encrypted data.
Governments and law enforcements can request that Apple decrypt files held in iCloud. However in 2022 it introduced an optional “Advanced Data Protection” (ADP) feature on its devices which lets users turn on end-to-end encryption that even the company itself cannot access.
The Washington Post reported in February that the Government had served Apple with the TCN, the issuing of which must by law be kept secret, and Apple has subsequently abandoned the security feature altogether in the UK rather than create the back door.
Apple’s appeal on Friday was held in closed court, while journalists, campaigners and barristers waited outside the room to make representations as to why it should be heard in public.
“We have been given no information at all by the IPT today and are disappointed that we have not been invited to present the press case for open hearings before the tribunal,” said Bill Goodwin, the investigations editor at Computer Weekly. “We hope that the tribunal will allow us to make representations at a later date.”
Computer Weekly is one of the news organisations joining the submission to open up the appeal, alongside Associated Newspapers, the BBC, the Financial Times Group, Guardian News and Media, News Group Newspapers, Sky News, Telegraph Media Group and Times Media.
Government bid to break Apple encryption threatens journalists’ sources
Goodwin told Press Gazette there was “no reason not to talk about it in open court”.
“It’s publicly known. It’s been widely leaked that the TCN has been issued… It goes back to Spycatcher – once the secret is out, there’s no point using the law, it’s out. There’s no point saying you can neither confirm nor deny when everyone, in fact, knows what’s happened.”
Goodwin argued that not only is the TCN already a matter of public knowledge, but deliberations over whether it stands are a matter of public interest.
“Once you break encryption, then the doors that you create cannot just be used by good guys, by law enforcement in the UK, for example,” he said. “They can be exploited by hostile governments or cyber criminals.”
He added that government access to encrypted data should be of particular interest to journalists.
“If you’re a journalist and you use Apple’s ADP service to give yourself extra security – if you’re in the UK, you can no longer do that. If you’re overseas, you can still use it, but the TCN allows the UK Government to access iCloud data even if you’re not a UK citizen.
“So if the order is enforced, it will affect the security and privacy of people who are overseas… of course, if you’re a journalist you start worrying about, if you’ve got sensitive source material, if you’re using ADP to protect it, you will no longer be able to guarantee that it is protected.”
Rebecca Vincent, the interim director of Big Brother Watch and former director of campaigns for Reporters Without Borders, said the implications of the TCN were “enormous”.
“To do their jobs journalists need to be able to guarantee source protection, and if end-to-end, encryption is broken, it becomes very difficult for journalists to have any sort of indication that they can protect their sources,” she said.
But she added: “It’s not just about Apple. It’s about the fact that once encryption is broken for anybody, it’s broken for everyone.”
Vincent said that Big Brother Watch was ultimately campaigning for the government to rescind the order, “which shouldn’t have been issued in the first place”.
“We’ve pointed many times to the fact that the Government have already targeted powers which are normally appropriate to be able to obtain access to things that they need, and just because these mass surveillance powers now exist under the Investigatory Powers Act doesn’t mean that they should be used, and they certainly shouldn’t be a matter of first recourse like this.”
[Read more: High Court judges dismiss ‘Snoopers’ Charter’ challenge by human rights group]
Vincent said the issuance of the TCN was “an unprecedented step for a democracy”.
“It certainly puts the UK in a club of countries that we shouldn’t want to be in internationally. And the danger, when countries that are thought of as standard setters do this type of thing, is that it will be used as an excuse for possibly even more egregious behaviour by more authoritarian states.”
Carrying out the appeal in secret, Vincent said, was “really outrageous. This matter is so overwhelmingly in the public interest – it will impact everybody’s privacy rights.
“It is effectively already in the public eye. It seems absurd to continue to pretend that it is a secret matter when it’s not.
“What is concerning to all of us is that it could impact us without any knowledge of the arguments being made today, of the considerations that the court could take, and then, again, with the precedent that will set. So we believe it should be opened immediately.”
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