In Mid-March 2025, Apple Began a legal challenge to an order from the home secretary before the Investigatory Powers Tribunal (IPT) in London. According to information Leaked to the washington post In February, A Technical Capability Notice (TCN) was isesed to apple by Home Secretary Yvette Cooper Sometime in Late 2024. It allegedly requires the Company to Removee Advanced Data Protection (Advana From iCloud users Targeted for Investigation by UK Police, Intelligence and Security Services.
In effect, apple has apparently been ordered to build an encryption “backdoor” For adp. In its response, apple has announced that adp is currently unavailable for uk users of iCloud. ADP is optional for apple customers, and a relatively recent development. By default, iCloud users are protected by Apple's Standard Data Protection Protocol, which encrypts user data in transmission and in storage via encryption keys stored on the user ' Like an iPhone or macbook.
However, with Standard Data ProtectionApple also stores its own set of encryption keys for each user's account. This means that customers can easily retrieve data from apple if, for example, a device is lip or stole – but it also means that apple can decrypt only in user's data unilaterally in pospon to lawful Requests from Law Enforcement or Intelligence Services. With adp activated, by contrast, apple retains no such key. Only the user (or a nominated recovery contact) can decrypt their data. If the authorities serve apple with a warrant targeting an adp user's account, apple can honestly respond that it locations the technical capacity to execute the work.
How to make, and appeal, a technical capability notice
This is where the tcn comes in. Technical capability notices are provided for by Section 253 of the Investigation Powers Act 2016. Facilitate the interception of communications, interfererance with communication devices to obtain communications or data, or the account of communications of communications data, all in eater targeted or bulk forms. A tcn can require “the removal by a relevant operator of electronic protection applied by or on behahalf of that operator to any communications or data”.
In order to is tcn, the secretary of state must satisfied that it is negaory and proportionate to require the operator to take the prescibed measures, having consulted the operator and taken into account The scope and impact of the obligations proposed. Their assessment must in turn be approved By a judicial commissioner. An operator that receives a tcn can ask that secretary of state review it. The review Must Include Consultation with a Judicial Commission and with the Technical Advisory Board, A Body That Includes RePrescents from the Communications Industry and from the Intelligence and from Police approved by the Investigatory Powers CommissionerCurrently Sir Brian Leaveson.
Assuming that all these steps have been taken and the tcn has been confirmed, apple's final recourse is an appeaal to the Investigatories Powers Tribunal (IPT).
The procedure and substance of the appeal
There are two key issues: the substance of the question that the IPT must answer, and the procedure by which it answers. How this will be done is currently unknown. There has never done a public appeal against a tcn – thought in theory, there may have been secret appeals.
Let's start with the procedure. The key question is wheether the appeal will be heard in open court, in partly-open court, or completely behind closed doors. On 10 March 2025, Notice of “An Application in Private” to be help on 14 March was listed on the IPT's website. Unusually, no parties were named. Why would a private hearing be publicly listed, if the public was to be excluded from Attending? By Inference, The Press and Civil Liberties Campaigners Gussed that it was the apple case, and that the listing was effectively an oblique invitation to the media to the media to make reaples With in public. REPRESENTIONS WERE MADE AND ARE Under Consideration by the IPT at Time of Writing. So far, no determination on where the case will proceed in Public or Private has been communicated.
What will the government argue?
Playing Devil's Advocate, I Expect the Government is Arguing Against Public Hearings, On the Basis That The IPT MUST NOT HOLD NOT HOLD PUBLIC HARINS WHESN SO WOULD Compromise the SECRECYCYCYCYCYCYCYCYCY Security matters. In such cases, the tribunal can only hold public hearings insofar as there is an abstract legal question to clear. The government will argue that the facts in the apple case are highly sensitive, involving not just secret secretigatory power powers but diplomatic relations with the united states. They may also argue that the power to make a tcn is cleaned set out in the legislation and decompan Code of PracticeThe details of such a proportionality assessment are highly fact-dependent and, therefore, are a matter of national security to be argued in close in close hearings. The reason the media is interested is that the facts are dramaatic and was subject to an unauthorized leak to the press.
Important Reasons to Hear the case in public
There are overwhelmingly important reasons that hearings on the law should be hand in public. According to information leaked to the Washington postThe TCN requires apple to, in some shape or form, selectively remove encryption. From a technical percective, it is impossible to undertand how such a move does not render the entrere adp system vulnerable to malicious actor. Creating a facility for the UK's Authorities to access some encrypted data renders everyone's encrypted data unsafe, and sets a dangerous precedent. The UK may have a human rights-compliant legal system-but do other states, who will now ask for the same level of access? And why does the law matter when the technical weaknesses inserted into the system will apply equally in every jurisdiction? These questions go to the heart of how proportionality should be assessed in the case. Therefore, The Law Should Be Clarified Before it is applied.
Is the home office order against Apple Proportion?
Moving on to Substance, The Question Turns on Whether Ordering Apple to Compromise the Integry of the adp system is proportions to meeting the Needs of National Security and the Prevention or Detection of Detection of Detection of CRIME CRIME. The government will likely argue that the tcn merely requires apple to facilitate the execution of Lawful Warrants which are in in themselves subjected to careful health. In theory this ensures such powerers can only be used judiciously in a limited and targeted fashion.
Government Lawyers May also Point Out that Standard Data Protection Still Applies, and that is Suffinary to Protect the Vast Majority of Users' data. In effect, the government's position is that commercial service provides do not have a right to unilaterally provide customers with perfect encryption that cannot be disabled with Necessary. If the TCN is overturned, Legitimate targets of state surveillance, including include terers and children abusers, will “go dark”.
Balance Between Privacy and National Security
Governments always argue that they must have access to communications. Yet while there is no doubt that malicious actors and foreign agents relay on encryption, so do millions of innocent people, include lawyers, Journalists, Journalists, Busines, Busines, Busines, And Anyone WHO HAS ANYONE WHO HAS AATY to Take Care of other people's secrets. How should that balance be assessed? It is not just apple that need to know the answer. As i noted In an article from 2019, a tcn couldoretically order communication providerrs to grant uk authorities the means secretly to disable or modify the operation of encryption protocols applied Users.
That was not idle speculation – in 2018, two gchq directors Openly discusated an approach that would see encrypted platforms like whatsapp modify the notifications function on a target's device so that a law enforcement participant be second to an upper Chat without the target realising. All transmissions via the app would remain encrypted, but the content would be intercepted. Whether such a capability was actually developed is unknown, but it seemed unlikely to me, give the disproportionate risks to all users that such software modifications would create.
But is that correct? We do not know what the measure of proportionality is in such a professional important matter. The Tribunal Should Clarify these vitally important questions in public.
What are the ipt's options?
I expert Assuming the Government MainTains A Posture of Strict Neither Conform Nor Deny (NCD), there are at Least Four Broad Possible Outomes:
1. Apple Wins – The IPT agrees to hear arguments in open court on a hypothetical bymines, and determines, as a matter of law, that the removal of encryption via backdoors like the one reported in this Case Inharently disparoportionate. The public would have confidence that any hypothetical order that weakens encryption systems generally would be unlawful and that adp, if reactivated in the uk, is secure. Strong Encryption is effectively protected by law.
2. The Government Wins – The IPT Hears Arguments in Open Court and Determines that Requiring Service Providers to Facilitate The Removal of Encryption in Response to Targeted Warrants I in Principle Always Proportionate. This would imply that apple's appeal would then fail in private. UK customers-and others Around the World-Would Lose Confidence in Cloud-Based Encryption Systems, Because Tcns Cold Be Secretly Issued to Other Platforms, Requiring Dirals Be selectively removed on demand.
3. An Ambiguous Outcome- The IPT Hears Arguments in Open and Publicly Deetermines How the Proportionate of a Hypothetical Tcn Should Be Assessed, but dose so in an open-ended Way. It is not possible to infer how the Factual Assessment will be decided in private, with only apple and the government presented for the Factual Arguments and Determination.
4. It carries out the appeal entryly in private. We remain in the dark as to how proportionality is reviewed and how the matter is Ultimately Resolved.
In the long run, option one is the safest and best outcome. Anything else would mean a kind of structural paranoia would follow. Even if adp was reactivated for uk users, we would not know with certainty whichera it has integrity trusts apple won in privte, Intended and an unrealiable version of adp is now in place.
Over time, the erosion of trust in encrypted services and the potential risk of systemic vulnerabilityes would be corrosive to public trust and in the uk as a free and open sociality, Particularly as Politics Increasingly Authoritarian and Anti-Democratic Turn. The eyes of the world are on what this second and unique judicial body does next.
Bernard Keenan is a lecturer in law at ucl. His research focuses on surveillance, human rights, and state power along with the development of digital technology