WhatsApp is refused right to intervene in Apple legal action on encryption ‘backdoors’
A court is to hear legal challenges against a secret order issued by the Home Office requiring Apple to give British law enforcement and intelligence agencies the ability to access its users’ encrypted data stored on the iCloud in a public hearing in 2026.
The Investigatory Powers Tribunal (IPT) ruled today that it would hear five legal challenges brought by Apple, Privacy International, Liberty and two individuals, in open court over seven days early next year.
The court, however, refused to allow encrypted messaging service WhatsApp the right to intervene in the case.
The 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.
However, technology companies and security experts have repeatedly warned that government attempts to weaken encryption will inevitably be exploited by cyber criminals and rogue national states, impacting the security of internet users worldwide. They argue that there are other ways to fight crime that do not require weakening encryption.
The Home Office’s decision to issue a technical capability notice (TCN) against Apple in January has raised tensions between US lawmakers and the UK government, over what the US sees as unwelcome interference in US Big Tech companies.
President Trump and US intelligence chief Tulsi Gabbard have both 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 Wall Street Journal, 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”, which will enable the hearing to be held in public without requiring the Home Office or Apple to disclose details of the order that could only be heard in a private court session.
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.
NCND policy ‘absurd’
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 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.
The legal challenges to the Home Office are being brought by Privacy International, Liberty, Gus Hosein and Ben Wizner. Apple is bringing a separate legal challenge.
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