Details of Apple's appeal against the UK's so-called "backdoor order" will now play out in public after the Home Office failed in its bid to keep them secret on national security grounds.
The confirmation comes after the Investigatory Powers Tribunal held a closed-door hearing on March 14, which was presumed to be related to Apple's appeal itself, rather than about whether the appeal itself would be heard in public, the details of which were released today.
Lawyers representing the Secretary of State, Yvette Cooper, applied to the tribunal to ensure the "bare details" of the case involving a Technical Capability Notice (TCN) being issued to Apple be kept secret. They argued that airing these was not in the public interest and would be prejudicial to national security.
TCNs are issued under the UK's Investigatory Power Act 2016 – aka the Snooper's Charter – and entities that receive one are forbidden from either confirming or denying its existence.
Thus far, the case of Apple vs the Home Office has been shrouded in secrecy, despite privacy campaigners and US politicians vehemently arguing for the details to be made public, honoring the principle of open justice.
However, there must be a careful balancing act between informing the public and preserving national security, and the tribunal said that despite its decision, it had to give considerable weight to the position of the Home Office.
Pablo Sandro, associate professor of public law and legal theory at the University of Leeds, said the tribunal's deference toward the Secretary of State included "some worrying remarks."
"There's no point to have a specialized tribunal (with special rules) if the issue of disclosure will be pre-emptively determined by a standard set up by the government itself: The tribunal must be able to properly assess the merits of the claim that disclosure would damage national security," he said.
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The tribunal additionally said that it would ordinarily be inclined to side with Cooper unless it deemed her arguments irrational or legally erroneous. It cannot rule solely on the basis of its opinion and should only interject where there is a serious error.
However, its view is that the bare details don't pose a serious enough threat to national security to warrant anonymity.
The judgment, a shortened version of which was made public today, considered not only arguments from Cooper and Apple, but also submissions from other interested groups.
Privacy activists Liberty and Privacy International filed written submissions to the tribunal arguing that they should be allowed to attend the March 14 hearing and for the details to be publicized.
Global media groups also joined US lawmakers in pushing for open justice.
A day before the secret hearing, the privacy campaign groups jointly filed a complaint against the Home Office's power to issue TCNs and there is a likelihood the two cases may have some overlap. How that plays out remains to be seen. ®
