WhatsApp is refused right to intervene in Apple legal action on encryption ‘backdoors’
Investigatory Powers Tribunal to hear arguments in public over lawfulness of secret UK order requiring Apple to give UK law enforcement access to users’ encrypted data stored on the Apple iCloud
A court is to hear legal challenges against a secret order issued by the Home Office that requires Apple to give British law enforcement and intelligence agencies the ability to access users’ encrypted data stored on iCloud in a public hearing in 2026.
The Investigatory Powers Tribunal (IPT) ruled on 23 July that it would hear five legal challenges, brought by Apple, Privacy International, Liberty and two individuals, in open court over seven days at the “earliest opportunity” next year.
The court refused to allow encrypted messaging service WhatsApp the right to intervene and submit evidence in the case brought by campaign groups Privacy International and Liberty. Apple is bringing its own case, which will be considered alone.
WhatsApp CEO Will Cathcart submitted evidence to the tribunal in June, raising concerns that the move by the UK government would undermine the security of people using encrypted communication and cloud services.
He said the technical capability notice (TCN) would set a “dangerous precedent for security technologies that protect users around the world”.
Next year’s hearing will test the ability of technology companies to use encryption to secure their customers’ data without being ordered to create “backdoors” to provide access to UK law enforcement and intelligence services.
The Home Office argues that it needs the capability to access encrypted data stored by Apple users anywhere in the world on its iCloud service to fight terrorism and child abuse.
President Donald Trump and US intelligence chief Tulsi Gabbard have criticised the Home Office’s move against Apple. Gabbard warned that any attempt by the UK to create a backdoor that would allow the UK to access the data of Americans would be a “clear and egregious violation”.
Court permits Home Office NCND
Although the existence of the order became public knowledge when it was leaked to the Washington Post, the IPT found that the Home Office should be allowed to continue its policy of “neither confirming nor denying” (NCND) the existence of the order against Apple.
Judges rejected arguments from Privacy International and Liberty that the court should hear legal arguments over whether the Home Office should be allowed to continue with its NCND policy, as this would delay hearing Apple’s case against the Home Office.
The court will proceed based on “assumed facts” rather than “actual facts”. This will enable the hearing to be held in public without requiring the Home Office or Apple to disclose details of the order, which could only be heard in a private court session.
In April, the IPT dismissed attempts by the Home Office to require all legal arguments to be heard in a secret “closed” court that would exclude the public, press and Apple’s lawyers, following the intervention of a consortium of 10 media organisations, including Computer Weekly, the BBC, the Guardian, the Telegraph and Reuters.
NCND policy ‘absurd’
Caroline Wilson Palow, legal director and general counsel of Privacy International, said she welcomed the court’s decision to hear Apple’s case, and that of Privacy International and Liberty, in largely public hearings.
But she said the UK government’s insistence on maintaining its “neither confirm nor deny” policy, when the existence of the order has been widely leaked, reported and discussed, was “absurd”.
We’ve applied to intervene in this case to protect people’s privacy globally. Liberal democracies should want the best security for their citizens. Instead, the UK is doing the opposite through a secret order
Will Cathcart, WhatsApp
“We are being forced to sustain the fiction that the order does not exist, which may hinder our ability to grapple fully with its legal ramifications,” she said.
The Privacy International lawyer said the tribunal’s refusal to allow WhatsApp to intervene in the case “denied the largest provider of end-to-end encrypted services in the world a chance to defend itself and its users”.
“There should be no mistake – the fight over the Apple order is ultimately about end-to-end encryption and whether the UK government can dictate if this vital form of digital security should exist for users worldwide,” she added.
WhatsApp warned in June that the case could undermine the security of people’s private communications and expose them to attacks from hackers and hostile nation states.
“We’ve applied to intervene in this case to protect people’s privacy globally. Liberal democracies should want the best security for their citizens. Instead, the UK is doing the opposite through a secret order,” said Cathcart.
“This case could set a dangerous precedent and embolden nations to try to break the encryption that protects people’s private communication,” he added.
WhatsApp will continue to oppose moves to break encryption
A WhatsApp spokesman said last night that the company was disappointed at not being allowed to present its arguments in the Investigatory Powers Tribunal but would continue to oppose attempts by governments to weaken encryption.
“This is deeply disappointing, particularly as the UK’s attempt to break encryption continues to be shrouded in layers of secrecy. We will continue to stand up to governments that try to weaken the encryption that protects people’s private communication,” the spokesman added.
The legal challenges to the Home Office are being brought by Privacy International; Liberty; Gus Hosein, executive director of Privacy International, and Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project. Apple is bringing a separate legal challenge.
Timeline of UK government’s order for a backdoor into Apple’s encrypted iCloud service
7 April: Investigatory Powers Tribunal rejects Home Office arguments that identifying the ‘bare details’ of legal action by Apple would damage national security, leaving open possibility of future open court hearings.
14 March: The Investigatory Powers Tribunal holds a day-long secret hearing into an appeal brought by Apple against a government notice requiring it to provide law enforcement access to data encrypted by its Advanced Data Protection service on the iCloud, despite calls for the hearing to be opened to the public.
