The government tried to suppress disclosure of a data privacy row with tech giant Apple, the Investigatory Powers Tribunal has revealed.
In a judgment handed down today, tribunal president Lord Justice Singh and Mr Justice Johnson said preventing disclosure even of the fact that a hearing was taking place would have represented 'the most fundamental interference with the principle of open justice'.
Despite widespread media coverage that Apple was taking legal action to overturn a demand by the government to access users’ data if required, neither party has publicly confirmed the dispute. However, in its judgment, the Investigatory Powers Tribunal confirmed Apple had filed a claim and complaint over the home secretary’s powers to make ‘technical capability notices’ under the Investigatory Powers Act 2016.
According to the judgment, the government argued that publishing the fact or details of the claim, or identities of the parties, would be damaging to national security ‘with reference to the longstanding policy of neither confirming nor denying the existence of individual notices’.
The tribunal scheduled a hearing for 14 March. The published court list would not reveal the parties’ names, but only the fact of the hearing, the case number and the names of the judges. However, the government asked that the hearing not be publicly listed at all.
The tribunal refused. ‘It would have been a truly extraordinary step to conduct a hearing entirely in secret without any public revelation of the fact that a hearing was taking place. That would be the most fundamental interference with the principle of open justice. It would require a correspondingly compelling justification. We do not rule out the possibility that there may be exceptionally rare cases where such a step can be justified. On the evidence, this is not such a case,’ the judges said.
As well as written representations from media organisations, the tribunal received a letter from members of the US Congress arguing against the proceedings taking place in secret.
Today's judgment also revealed that the tribunal will hear a legal challenge from Liberty and Privacy International over the legality of the home secretary’s notice against Apple and general ability to issue such notices.
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