The British government’s policy of neither confirming nor denying that it had ordered Apple to put a backdoor into iCloud has been described as “farcical” during a court hearing.
The London-based Royal Courts of Justice is the venue of the Investigatory Powers Tribunal, which on Thursday heard that the “neither confirm nor deny” (NCND) stance was “logically unsustainable” given that everybody already knows the fact.
Ben Jaffey KC, who represents the campaign groups Privacy International and Liberty, told the court that the government was defending a secret that no longer exists.
The tribunal is hearing Apple’s complaint alongside the complaint from Privacy International and Liberty, challenging the home secretary’s power to issue secret orders, known as technical capability notices (TCNs).
The January 2025 leak to the Washington Post revealed that the Home Office had issued a TCN to Apple, requiring access to end-to-end encrypted messages and data stored by Apple customers worldwide in iCloud. Apple did not comply with the order and instead pulled its Advanced Data Protection service from UK users.
But within hours of the Washington Post story, Home Office sources confirmed the report to the Times. In October 2025, the Home Office issued a new TCN, reportedly narrower in scope and aimed at UK users.
As the tribunal was told, this was not the only confirmation of the original order. A post on X by former US director of national intelligence Tulsi Gabbard in August 2025 was seen by more than three million people, while in December 2025, the investigatory powers commissioner, Brian Leveson, said 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.”
Gabbard had reported that the UK had agreed to “drop its mandate” for Apple to provide a “backdoor” that would have enabled access to the protected encrypted data of American citizens.
Jaffey told the court that it was unlikely that Home Office sources would have confirmed the TCN without “tacit approval” from the government. “But here, within hours of reporting by the Washington Post, multiple sources were confirming to the Times the existence of the orders,” he said.
Leveson’s statement, Jaffey continued, “gives the game away.” The commissioner’s report would have been “clearly prejudicial to issues that might come in front of him in the future” had there been no TCN issued at all.
And while the Home Office is sticking to its NCND policy, WhatsApp and Google have confirmed in witness statements that they have not received any such orders – something they are free to say because there is no legal bar on disclosing that you have NOT received a TCN.
Apple, on the other hand, is in a different position because it did receive the order, and is now in court trying to force the government to confirm this, and by extension, admit that the TCN is still in force.
Another argument made by Jaffey is that Apple had to ask for permission before it could discuss the order with the US government, and that permission was granted. “The fact that Apple even needed to ask permission confirms there is a TCN,” he said.
The government’s argument against abandoning the NCND policy is that it would damage national security and hinder the investigation and prosecution of “serious crime,” including terrorism and online child abuse. But Jaffey said that “the horse has long bolted” as far as secrecy around the TCN is concerned, and that the government’s stance is “ridiculous” and “understates the principle of open justice.”
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