US politicians and privacy campaigners are calling for the private hearing between Apple and the UK government regarding its alleged encryption-busting order to be aired in public.

Reports suggest that Apple planned to appeal the demand at a behind-closed-doors High Court hearing of the Investigatory Powers Tribunal (IPT) this morning.

The entire process is shrouded in secrecy, however. The alleged order, made in the form of a technical capability notice (TCN) issued under the UK’s Investigatory Powers Act (IPA), was reportedly issued to Apple last month by the Home Office.

That TCN is understood to have contained an instruction for Apple to introduce a capability that allowed it to decrypt specific users’ iCloud data if requested via the IPA.

Apple and other proponents of encryption have repeatedly said there is no possibility of breaking encryption on-demand in the way the UK appears to think it can. Encryption is either enabled or disabled.

Under UK law, organizations that receive a TCN are unable to confirm or deny the existence of any such order, and the Home Office has also refused to do the same.

However, shortly after the alleged TCN came to light, Apple reluctantly disabled iCloud’s Advanced Data Protection (ADP).

Apple is believed to be appealing the TCN today, but like the notice itself, the IPT hearing is being treated with the same hush-hush approach.

A joint letter [PDF] composed by Senators Ron Wyden (D-Ore.) and Alex Padilla (D-Calif.), along with Representatives Andy Biggs (R-Ariz.), Warren Davidson (R-Ohio), and Zoe Lofgren (D-Calif.), opposed the private nature of the hearing.

The politicians argue that secrecy in this case is “pointless” given the wide reporting on the order.

“Given the significant technical complexity of this issue, as well as the important national security harms that will result from weakening cybersecurity defenses, it is imperative that the UK’s technical demands of Apple – and of any other US companies – be subjected to robust, public analysis and debate by cybersecurity experts,” the letter states.

“Secret court hearings featuring intelligence agencies and a handful of individuals approved by them do not enable robust challenges on highly technical matters.”

The UK generally subscribes to the principle of open justice, where most court hearings are held in public.

There are, however, a number of exceptions where hearings are closed off to the public, such as when the courts try to protect vulnerable witnesses or, in this case, make the national security justification.

Colloquially, the IPA is referred to as the Snooper’s Charter since its aims are to legally empower intelligence agencies with greater surveillance powers. Given the national security implications of this law and the impact on security and intelligence services, it is unsurprising that this morning’s IPT hearing is private.

Like other UK court restrictions, there are ways of appealing to the courts themselves to overturn such orders. Arguing there is a significant public interest in the case that demands a more open court can sometimes be granted by the judge presiding over the case, and it’s the same argument being made by privacy campaigners this week.

An open letter signed by Open Rights Group, Big Brother Watch, and Index on Censorship argues that since the case implicates the privacy rights of millions of Brits, details about the conditions under which compliance with a TCN is required are of “significant public interest.”

The letter was written to Lord Justice Singh, the president of the IPT. It adds: “There are no good reasons to keep this hearing entirely private, not least for the fact that the existence of the TCN has already been widely reported and that Apple’s own actions in removing its ADP feature for UK iCloud users leave no doubt as to what triggered them – despite reports that the government considers this removal does not comply with the TCN.”

The groups also highlighted the importance of end-to-end encryption (E2EE) and the fact that IPT hearings can be made in public unless there is a good reason not to, like preserving national security.

They argue in the letter: “A confirmation of the existence of the TCN would threaten the UK’s interests to a level or in a form that meets the conditions for derogating from the principles of open justice.

“The principles that have in the past allowed the UK government to maintain a [neither confirm nor deny] policy are only relevant to the targeted interception of communications and covert surveillance. They cannot apply to such a wide and already public piece of information about the UK’s attempts to weaken the security of services used by millions of people in and outside the UK.”

The Register contacted Apple for a statement. ®