Apple’s battle with the UK surveillance state

A UK court has struck a rare blow for civil liberties. The highly secretive Investigatory Powers Tribunal rejected the British government’s bid last month to repress all public reporting of its attempts to gain ‘backdoor’ access to our private, encrypted data. The legal challenge was brought by Apple, which provides its UK customers with what is known as its Advanced Data Protection, or ADP, service.

The ruling has barely been reported on in the British press, but is nonetheless of great significance. Apple is challenging powers granted to the home secretary to issue ‘technical capability notices’ (TCNs) under the Investigatory Powers Act 2016 – legislation long dubbed the ‘Snoopers’ Charter’. TCNs can force Apple and other tech companies to dismantle encryption protections at the direction of the Home Office.

The initial hearing in March revealed the alarmingly secretive mindset at the highest echelons of government. The Home Office argued that even listing the hearing in the court diary, let alone naming the parties, could ‘be damaging to national security’. Apple made the elementary point that there was no reason to suppress the fact that legal proceedings were under way, even if the details of the government’s order remained confidential. The principle of open justice, Apple told the tribunal, favoured information about judicial proceedings being published in the absence of compelling reasons to the contrary.

Fortunately, Apple’s position was upheld by the court, which found that the Home Office had failed to show that secrecy was necessary. It pointed out that details of the TCN had already entered the public domain, making continued secrecy pointless. ‘It would have been a truly extraordinary step’, the tribunal continued, ‘to conduct a hearing entirely in secret without any public revelation of the fact that a hearing was taking place’.

For good measure, the tribunal added that transparency is essential not only for scrutiny of the government, but also for maintaining public confidence in the legal system. Public proceedings, it said, help ‘maintain the rule of law and promote public understanding of the administration of justice’. In a cautious departure from the secrecy that usually surrounds cases heard by the tribunal, it also stated that open proceedings ‘may well be possible’ for some or all aspects of this particular dispute – although it left open whether future hearings will, in fact, be held in public.

Apple is doing the public a service in challenging the government on this important matter of principle. Encryption enables more than just ‘secure’ communication – it ensures freedom from government snooping, too. That’s why privacy and freedom of expression have long been considered mutually reinforcing rights. Encryption protects not only personal data, but also the ability of journalists and human-rights activists to operate without fear of surveillance or reprisals. Compelling companies to pre-emptively weaken those protections risks chilling users’ ability to communicate freely, share sensitive information or challenge the powers-that-be.

The tribunal’s recent ruling, although welcome, is only a very modest step towards transparency. It remains a criminal offence in the UK for companies to disclose that they have received a TCN. Amendments to the Investigatory Powers Act passed last year require tech firms to notify the government before introducing new security features – including end-to-end encryption – that might obstruct official access. The home secretary has also acquired the power to block such features pending a government review.

What’s more, despite the favourable decision in Apple’s case, we can hardly expect the tribunal to act as a consistent bulwark for our civil liberties. Indeed, this little-known institution has become one of the most secretive judicial bodies in the country. It does not disclose how many complaints result in findings of unlawful conduct, and it remains exempt from the Freedom of Information Act. The evidence before it is also protected by law, further limiting external scrutiny. And while public judgements have become more common in recent years, many proceedings still occur entirely in secret.

Apple’s case is no longer simply a dispute over a single ‘technical capability notice’, but a test case for how far the state can weaken digital security – and with it, our right to privacy. As the UK’s surveillance regime expands and encryption comes under growing political pressure, this case may come to define the limits of secrecy within a system long tilted in the state’s favour.

Freddie Attenborough is the digital communications director of the Free Speech Union.