By Michael Holden
LONDON, Sept 17 (Reuters) – The British government’s refusal to confirm whether it has issued an order to bypass encryption to access customer data held by Apple has become farcical, a lawyer for civil rights groups told a London tribunal on Thursday.
In January last year, Britain issued an order, known as a technical capability notice, for what is known as a back door to allow it access to encrypted cloud backups of data of U.S. and British citizens.
That demand was dropped following months of negotiations with U.S. President Donald Trump’s administration, but in July Britain issued a second notice that applied just to Apple’s UK customers.
The issue has been clouded in secrecy as the British government says it cannot comment on the existence of individual TCNs because it operates a policy of neither confirm nor deny on security matters.
APPLE AND CAMPAIGN GROUPS HAVE BOTH TAKEN ACTION
Apple has launched a challenge at a specialist court, the Investigatory Powers Tribunal, but has been unable to give public details on why because of legal restrictions.
Campaign groups have also taken action over the order, which they say would violate human rights and weaken security, even though the government refuses to confirm the TCN exists.
At Thursday’s hearing at the IPT, Ben Jaffey, the lawyer for campaign groups, Privacy International and Liberty, said the government’s position had “become farcical”.
“The horse has long bolted,” he noted, meaning it was already public knowledge.
U.S. politicians and officials had publicly referred to the original notice while unnamed UK government sources had also confirmed it to the press, he said.
Both he and Apple’s lawyer said that the UK government’s NCND policy was an affront to open justice and prevented meaningful public discussion of the issue.
The British government’s lawyer Neil Sheldon said the issue went beyond the arguments in the Apple case.
Any move away from the policy posed a national security risk and “would provide material assistance to hostile actors” who would be able to build a picture of which operators were subject to TCNs, he said.
The IPT will give a ruling on the NCND issue at a later date while a full hearing on the case itself is unlikely until next year.
Apple, which itself has no access to the encrypted data of those who make use of its Advanced Data Protection feature on their devices, including iPhones and Mac computers, has said that if it creates an entry point for one government, that could be exploited by hackers or hostile states, weakening security for all.
Following Britain’s demands, Apple withdrew its Advanced Data Protection feature for UK users in February last year, saying it would never build a back door.
(Reporting by Michael Holden; editing by Barbara Lewis)
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