The Investigatory Powers Tribunal has rejected a Home Office bid to impose total secrecy around its efforts to gain access to Apple users’ data.
Apple is appealing to the IPT over a government technical capability notice (TCN) which would require it to provide the Home Office with access to its customers’ most highly-encrypted data.
The Home Office had asked the IPT not to publish the facts or details of the appeal or the identities of its parties, arguing that to do so would be damaging to national security.
However the body, which oversees the government’s surveillance abilities, said in a judgment on Monday it did not accept that revealing these “bare details of the case” would be “damaging to the public interest or prejudicial to national security”.
The case has alarmed journalists worldwide both because the TCN risks exposing any confidential information held under Apple’s top “Advanced Data Protection” (ADP) encryption layer and because of the secrecy surrounding the order. The issuing of a TCN must by law be kept secret, so neither the Home Office nor Apple has acknowledged it publicly despite extensive media coverage.
IPT judgment allowing publication of ‘bare details’ of Apple case ‘a very good decision’, says investigative journalist
The Home Office initially asked the IPT not to even publicly list that the March hearing over whether to disclose the “bare details” of the case was happening. But the IPT said “It would have been a truly extraordinary step to conduct a hearing entirely in secret without any public revelation of the fact that a hearing was taking place. That would be the most fundamental interference with the principle of open justice…
“We do not rule out the possibility that there may be exceptionally rare cases where such a step can be justified. On the evidence, this is not such a case.”
News publishers including the BBC, PA Media, Computer Weekly and News Group Newspapers made submissions arguing for Apple’s claim to be heard in public, and in its judgment the IPT did not rule out such a possibility, saying: “It may well be possible for some or all future hearings to incorporate a public element, with or without reporting restrictions.”
The IPT also acknowledged the previously secret details of the case, saying Apple’s claim raised issues “as to the Secretary of State’s powers to make Technical Capability Notices under the Investigatory Powers Act 2016”, sometimes known as the Snooper’s Charter. However judges Lord Justice Singh and Mr Justice Johnson added that the judgment “should not be taken as an indication that the media reporting is or is not accurate”.
Bill Goodwin, the investigations editor at Computer Weekly, told Press Gazette the IPT judgment was “a very good decision”.
“It means that the court has recognised the public interest in acknowledging this important case in public and has rejected Home Office arguments that even mentioning the existence of the case will damage national security. That was always a farcical argument given the existence of the secret order against Apple has been widely leaked and has even been publicly discussed by Donald Trump.
“The tribunal has given a strong hint that it will hold future hearings in public as far as it can, but there are no guarantees yet how public the hearings will be. We expect the Home Office to continue arguing for secret hearings.”
Noting that the court had not yet decided whether the Home Office’s TCN against Apple is lawful, Goodwin said: “Journalists who are using Apple’s ADP service will still need to be concerned about the safety of confidential sources and journalistic material.
“The issue is that once a back door has been introduced to an encrypted service, that back door can be exploited by criminal hackers and hostile states, such as Russia or China. Journalists who report on those countries may be at greater risk if this order is approved.”
Email pged@pressgazette.co.uk to point out mistakes, provide story tips or send in a letter for publication on our "Letters Page" blog
