UnHerd – UK Government hushes up its Apple data grab

Yesterday, in a small locked room in a remote corner of the High Court in London, a panel of two judges considered Apple’s appeal against an order issued by the British Government. The tech firm was responding to a technical capability notice (TCN) from the Home Office, which is attempting to force Apple to create an encryption backdoor. If implemented, this notice would effectively break end-to-end encryption, giving UK authorities access to Apple users’ data — an unprecedented move for a major democracy.

Unfortunately, the Investigatory Powers Act stipulates that this whole process must be shrouded in secrecy. Although the hearing was publicly listed as “an application in private” to be heard in the Investigatory Powers Tribunal, no one involved is legally allowed to comment — or even confirm that the session was related to the Apple case.

I was one of around a dozen campaigners and journalists who spent yesterday in the corridor outside the courtroom, hoping that our submissions urging the Tribunal to open proceedings would be considered and that we might be allowed in. My organisation, Big Brother Watch, had written jointly to the tribunal along with Open Rights Group and Index on Censorship. Privacy International and Liberty also filed a submission, as did a number of the country’s leading media organisations, all seeking for the hearing to be opened to the public.

This performative level of secrecy seems particularly absurd given how much public attention the case has received since it was first reported by the Washington Post last month. Perhaps the British Government underestimated how much pushback it would receive — from the public, civil society organisations, tech companies, politicians, and even across the Atlantic, with US officials now examining whether the UK has violated a key bilateral data treaty.

The reason for this outcry is clear: the privacy rights of millions are at stake, starting with Apple’s British customers. UK users have already lost access to the company’s most secure encryption tool, Advanced Data Protection (ADP), with reporting by the Financial Times suggesting that the Government considered the removal of ADP insufficient to comply with the TCN. If the Government wins in this tribunal, it could force the creation of an encryption backdoor that would compromise all of our personal data.

Even more alarming is what could follow. We could very easily see a proliferation of similar orders to other platforms. And there is no such thing as an encryption backdoor which magically targets only criminals, or which gives access to the UK authorities alone. Once encryption is broken for anyone, it is broken for everyone, leaving our data vulnerable to malicious actors such as hackers or foreign adversaries. No matter how it is sold to the public — whether under the guise of combatting terrorism, protecting children, or other seemingly worthy claims — this erosion of our most fundamental rights doesn’t make anyone safer.

Such brazen efforts by states to access citizens’ data are usually reserved for authoritarian regimes such as China, and have no place in a country which values human rights and civil liberties. When viewed in the context of other ongoing legislative moves seeking access to our data — from provisions in the Data (Use and Access) Bill permitting surveillance of bank accounts, to proposals in the Crime and Policing Bill that would effectively turn the driving licence database into a gallery of police mugshots — the UK is on a very worrying path indeed.

It is currently unclear when the Investigatory Powers Tribunal’s consideration of the Apple encryption case will continue, or whether it will ever be open to the public. But dangers certainly lie ahead if this current trajectory doesn’t change. It’s not too late for the Home Office to rescind its order to Apple, and use the targeted powers already at its disposal to fight crime rather than eroding the rights of an entire population through mass surveillance. It is difficult to imagine any situation where this could be considered proportionate. Just because these powers exist does not mean they should be used, now or ever.

– Rebecca Vincent, Interim Director

UnHerd – UK Government hushes up its Apple data grab

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