Apple encryption legal challenge heard behind closed doors despite calls for public hearing

Threat to privacy

Civil society groups Privacy International and Liberty have separately launched a legal challenge against a secret Home Office order. The campaign groups have filed a legal challenge against the Home Office at the Investigatory Powers Tribunal arguing that the way the government has used the secret order, known as a Technical Capability Notice, is not compatible with UK law or the Human Rights Act.

The groups say the move by the UK government against Apple will have “global consequences” by opening up a backdoor to people’s personal data, including messages and documents that could be accessed by hackers and oppressive governments.

Liberty and Privacy International warn that the move could impact marginalised groups, such as political dissidents and members of religious and LGBT+ communities, who could be targeted or put under surveillance. 

The groups argue that the Technical Capability Notice at the centre of the case, and other TCNs in future, could be used to undermine end-to-end encryption, which they argue is essential to the protection of privacy and free expression.

The campaign groups said in a statement that giving users control of who can access their data is crucial, particularly for those whose jobs, beliefs or characteristics require enhanced security.

People the world over rely on end-to-end encryption to protect themselves from harassment and oppression. No country should have the power to undermine that protection for everyone

“Journalists, researchers, lawyers, civil society and human rights defenders rely on encryption because it protects them – and their sources, clients and partners – from surveillance, harassment and oppression,” the groups said.

They said that secure and trustworthy end-to-end encryption services are “crucial for those who are discriminated against, persecuted or criminalised because of who they are”.

“Vulnerable populations such as religious minorities, LGBT communities, people living with HIV, or political opponents in authoritarian states are particularly dependent on the ability to form communities, communicate and build their lives in spaces without fear of repression or retribution, and free of intrusion by powerful actors who may wish to do them harm,” they said.

They argued in legal submissions filed at the Investigatory Powers Tribunal that the TCN has “very clearly” not been used for purposes that are compatible with or permitted by the Investigatory Powers Act 2016, or by other investigatory powers regulations.

Gus Hosein, executive director of Privacy International, and Ben Wizner, a civil liberties lawyer with the American Civil Liberties Union and lead attorney for NSA whistleblower Edward Snowden, are also challenging the home secretary’s TCN notice, as individuals who are likely to be affected by the order.

Caroline Wilson Palow, legal director at Privacy International, said the UK’s use of a TCN was disproportionate.

“People the world over rely on end-to-end encryption to protect themselves from harassment and oppression. No country should have the power to undermine that protection for everyone,” she added.

Akiko Hart, Liberty’s director, said the government’s move would create a backdoor that could be used by hackers and foreign governments to access people’s private data.

“These plans have been universally criticised, from marginalised communities to tech firms to the US government and beyond. We need concrete guarantees from the UK government that they won’t proceed with these plans,” she said.