The UK has lost an attempt to keep details of a legal battle with Apple away from the public.
The investigatory powers tribunal, which investigates whether the domestic intelligence services have acted unlawfully, on Monday rejected a bid by the Home Office to withhold from the public the “bare details” of the case.
A judgment from Lord Justice Singh, president of the investigatory powers tribunal, and Mr Justice Johnson, on Monday confirmed some details of the case for the first time.
They confirmed that the case relates to a legal challenge brought against the Home Office by Apple over the power to make technical capability notices under the Investigatory Powers Act.
According to the judgment, the Home Office argued that revealing the existence of the claim, as well as the names of the parties involved, would be damaging to national security.
“We do not accept that the revelation of the bare details of the case would be damaging to the public interest or prejudicial to national security,” said the judges.
The Guardian and other media organisations have reported that the Home Office has served Apple with a technical capability notice (TCN), in which the government demanded access to Apple’s Advanced Data Protection service, which heavily encrypts personal data stored remotely in its servers.
Apple has pulled ADP from the UK rather than comply with the notice, saying it would never build a “backdoor” to its products or services.
Singh and Johnson said that neither Apple or the Home Office had confirmed or denied the accuracy of reports around the TCN and its contents.
“This judgment should not be taken as an indication that the media reporting is or is not accurate,” the judges added. The details of the TCN remain unknown.
Journalists were not allowed into a hearing last month related to the case.
Multiple media organisations, including the Guardian, the Financial Times, the BBC and the PA news agency, asked the tribunal to confirm who was taking part in the hearing on 14 March and for it to sit in public.
Neither journalists nor legal representatives on behalf of the media were allowed into the hearing, and the identities of the parties involved were not disclosed before the hearing.
The judges added that it could be possible for “some or all future hearings to incorporate a public element, with or without reporting restrictions” but that could not be ruled on at this stage in the process.
Recipients of a TCN cannot reveal the existence of an order unless they are given permission from the home secretary. The tribunal’s website states that hearings should be closed to the public only when “strictly necessary”, but its rules declare there must be no disclosure of information that is “prejudicial to national security”.
Ross McKenzie, a data protection partner at the law firm Addleshaw Goddard, said despite the ruling it was “highly unlikely” there would be any in-depth revelations of the Home Office’s case for accessing Apple user data.
“We may get a skeletal decision similar to what has been shared so far, which summarises the rationale without any meaningful detail,” said McKenzie.
A Home Office spokesperson said the department did not comment on legal proceedings, but added that “longstanding and targeted investigatory powers” had “saved lives, prevented incredibly serious terrorist plots against the UK, and put dangerous criminals behind bars”.
The spokesperson said those powers needed to be sustained as technology changed.
Apple declined to comment.
