The government’s policy to neither confirm nor deny whether it has ordered Apple to provide ‘backdoor’ access to encrypted messages and data stored on Apple’s iCloud is “farcical”, a court heard today.
Ben Jaffey KC representing campaign groups Privacy International and Liberty told the Investigatory Powers Tribunal that it was no longer sustainable for the Home Office to neither confirm nor deny that it had issued an order to the US technology company.
“That horse has long bolted,” he told the court. “It would be much more sensible to get on with the case based on the actual facts,” he added.
The Investigatory Powers Tribunal is hearing a complaint from Apple alongside a complaint from campaign groups, Privacy International and Liberty, challenging the home secretary’s powers to issue secret orders, known as Technical Capability Notices (TCNs), to technology companies.
The government argues that confirming or denying the existence of the TCN would damage national security and enable criminals, including terrorists or those engaged in online abuse, to cover their tracks. It said in written submissions that “were confirmation of the existence or denial of any TCN to be publicly disclosed, the damage to NCND in other cases would be particularly acute”.
Jaffey told the tribunal that the government’s reliance on the principle of NCND in this case was not sustainable following widespread reporting of the existence of the TCN by UK and US newspapers and confirmation of its existence by members of the US government and anonymous UK government officials cited in newspaper reports. The case had also been referred to by the investigatory powers commissioner.
“There comes a point in which the plea of NCND is ridiculous and logically unsustainable,” he told the hearing at London’s Royal Courts of Justice, adding that if there was any damage to national security it had already been done.
A leak to the Washington Post revealed that the Home Office issued a Technical Capability Notice to Apple in January 2025 requiring it to provide access to end-to-end encrypted messages and data stored by Apple’s customers worldwide on the iCloud.
Rather than comply, Apple withdrew its Advanced Data Protection service from UK users, stating “we have never built a backdoor or master key to any of our products and services and never will.”
The Home Office issued a new TCN to Apple in October 2025, which was reportedly more narrowly focused on providing access to end-to-end encrypted messages and data stored by British users.
Jaffey told the court in written submissions that the first TCN was not only widely reported but that its existence was confirmed to the Times newspaper by Home Office sources. It was also the subject of published comment by both the US director of national intelligence (DNI) and the US president, Donald Trump.
A post on X by former US DNI Tulsi Gabbard, in August 2025, which had over 3 million views, reported that the “UK had agreed to ‘drop its mandate’ for Apple to provide a ‘back door’ that would have enabled access to the protected encrypted data of American citizens” – confirming the existence of the TCN.
Jaffey told the court that it was clear Apple had withdrawn its ADP service from the UK because it had been served with a TCN and that the company was legally prevented from saying so. This contrasts with WhatsApp and Google which have confirmed in witness statements that they have not received TCNs. “WhatsApp are free to say that because there is no legal constraint on anybody saying they have not received a TCN,” he said.
Home Office ‘has not addressed issues’
Jaffey said that the Home Office had not dealt with the issues raised over NCND in a witness statement supplied to the tribunal by Andrew Scurry, director of technology, data and innovation at the department’s Homeland Security Group.
The revelation of the TCN first reported by the Washington Post had been confirmed to the Times by Home Office sources, he said.
“We say it is unlikely that Home Office sources would confirm a TCN without having tacit approval,” said Jaffey. “But here within hours of reporting by the Washington Post, multiple sources were confirming to the Times the existence of the orders”.
Jaffey said that if the confirmations were really unauthorised the Home Office would have been expected to carry out serious investigations into the leak. The officials had breached the Official Secrets Act, which was a criminal matter and it would have justified removal from their post, he said.
Another article quoted officials from the then Department for Science, Innovation and Technology (DSIT) criticising the Home Office’s handling of the Apple case and confirming that there was a TCN and the Americans were upset.
Scurry’s witness statement said that ministers and Home Office officials had maintained a position of NCND, said Jaffey. “That is obviously not true because Home Office officials have confirmed the existence of the TCN,” he said.
He said that the government witness statement does not address the comments made by DSIT officials, whether the comments made about the TCN by government officials were authorised, or whether there was a leak investigation.
Congress writes to IPT
The court heard that a letter sent to the Tribunal this week by US Democratic senator, Ron Wyden, and Republican Warren Davidson, disclosed that Apple had given permission to discuss the UK’s order with the US government but not with the US Congress. “The fact that Apple even needed to ask permission confirms there is a TCN,” said Jaffey.
The court heard that the investigatory powers commissioner, Lord Leveson, had expressed views about the Apple case in his December 2025 report. Leveson stated that “lawful access can be achieved in a way that strikes a balance between maintaining strong encryption and ensuring law enforcement and the government can protect the public from terrorism, serious crime, and hostile state activity.”
“Logically we say that gives the game away,” Jaffey told the court. “If there had never been any such TCN, this statement would be clearly prejudicial to issues that might come in front of him in the future.”
Departure from NCND would ‘damage national security’
Speaking for the government, Neil Sheldon KC, told the court that any public departure from NCND would be damaging to national security and could impact the prevention and detection of serious crime including terrorism and online abuse of children.
He said that the secretary of state’s assessment that NCND should be maintained was “neither irrational nor unsupported by evidence”. Confirming which telecommunications operators have or have not received TCNs would provide “material assistance” to people engaged in terrorism or online abuse on how to hide their activities.
He said that if there was a departure from NCND in this case it would be harder to maintain it for other cases. People would be able to build up a picture of which operators had TCNs and would be able to take steps to hide their data from lawful access.
It may be the case that some people have read the reporting of the Apple case, the investigatory powers commissioner’s reports and other material, drawn conclusions and modified their behaviour, but other people would not have done so, the court heard.
“The NGOs represented by Jaffey and Apple and possibly the tribunal may have doubts about strength of the secretary of state’s assessment,” said Sheldon. But even “if it were thought that the secretary of state’s assessment was overstated or overcautious the consequences of being wrong would be very different depending on which side of the argument you stand”.
He said that the net effect on maintaining NCND on the openness of the proceedings would be limited, as hearings can be held in open court based on “assumed facts”. But a breach of national security by departing from NCND could have serious consequences, the court heard.
“The secretary of state’s position on NCND is based on absolutely nothing more or less than harm to national security that would be caused by departing from it,” he said.
Open justice
Jaffey told the court that the claim that the net effect of continuing with NCND would have a limited impact on the claimants “rather understates the principle of open justice.”
He told the court the home secretary had argued that it would be impossible to change the “assumed facts” in the light of new information as this could disclose information about the TCN.
He said that the true position is that the hearings should be held in open court unless there were national security reasons not to.
“There does come a point when maintenance of NCND becomes embarrassing. That point has been reached,” said Jaffey.
Speaking for Apple, Daniel Beard KC, said the account of the secretary of state that moving to assumed facts to maintain NCND has “no consequences” was “just wrong”.
President of court did not need to be recused
Earlier in the hearing the court heard that a witness for the Home Office had sat a tribunal appointment panel with president of the Investigatory Powers Tribunal, Lady Ailsa Carmichael, without disclosing their involvement as a key government witness in the Apple case.
Carmichael had written to the parties asking whether she should recuse herself from the hearings, after learning that Lucy Montgomery-Pott, head of the Investigatory Powers Unit in the Homeland Security Group, was a key witness in the Apple case. The court decided that it was not necessary for Carmichael to do so.
Montgomery-Pott, had previously said in a witness statement that it would damage national security if “the fact, substance or parties to these proceedings be made public”, a claim rejected by the tribunal, which subsequently agreed to open hearings. She has given further evidence in her statement on the need to maintain the NCND policy.
