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> Apple is very likely trying to get ahead of what's likely to be requests from the government that they won't be able to just not abide by No. Don't make that

by nullc 5y ago

> Apple is very likely trying to get ahead of what's likely to be requests from the government that they won't be able to just not abide by No. Don't make that excuses for them. If it were true it would be a shocking revelation which might result in thousands of cases being overturned. If the NCMEC searches by providers are being done as a result of government coercion then the fourth amendment requires there be a search warrant. Since there isn't one, these searches would all be unlawful if there was coercion. Thus far, tech companies like Google and AOL have gone out of their way to testify that there is no coercion (I haven't found a case involving Apple). If there were coercion it would be a shocking conspiracy. I wouldn't argue that it's impossible: The USG has done some shockingly unethical and illegal things in the past but it fails occams razor. Moreover, the excuse doesn't actually make apple look better: Instead of being a corporation compromising user privacy and security for commercial gain, they'd be an active participant in a conspiracy to violate the US constitution. Apple is doing this because they believe they'll make more money this way, and because they believe the complaints raised here about people rejecting devices betraying their trust are fundamentally inconsequential. Show them otherwise, don't make excuses. Don't blame the government. The government may well be to blame too, but Apple's actions are apple's fault.

usaman 5y ago
>> If there were coercion it would be a shocking conspiracy. This comment is as if the 2001-2010 decade never happened. Secret wiretaps. Secret Evidence. Overseas torture facilities. Imprisonment without charges. What makes you think that checks and balances would miraculously appear after having disappeared for over a decade. NOTE: this is a USA-centric viewpoint
- nullc 5y ago
  I would not argue that the conspiracy is impossible, but if it exists then it makes Apple's actions less excusable instead of more excusable. If the conspiracy exists Apple is an active participant in secretly and illegally undermining the constitutional rights of well over a hundred million Americans. If the conspiracy does not exist, then they're simply lawfully invading people's privacy in order to improve their profits.
- strken 5y ago
  Those are examples of shocking conspiracies that got uncovered. Illegal wiretapping and Guantanamo Bay ended up in the news and we're still talking about them now.
  - bigfudge 5y ago
    But nobody apologies for them or went to prison. There is little to believe the don’t continue.
    - bigiain 5y ago
      Snowden did. (Well, effectively did. He'd totally go to prison if he stepped foot in a country that'd extradite him to the US.) But you're right, none of the people who broke all the laws Snowden showed us were getting broken has suffered any consequences.
- bigiain 5y ago
  > NOTE: this is a USA-centric viewpoint Those are USA-centric examples. I'm sure the viewpoint is just as valid across five eyes and even worse in places like Saudi Arabia, Turkey, China et al. I'm from Australia, allegedly a 1st world democracy - and secret wiretaps, secret evidence (and even secret trials!), overseas torture facilities, imprisonment without charges - are all public policy, covered my the media, and enshrined in laws passes by both of the two-party political system.
  - torified 5y ago
    >Australia Don't forget raiding journalists homes and public broadcasters (using illegal warrants!) for reporting on proposed secret spying and hacking laws. Nice "democracy".
  - XorNot 5y ago
    "Covered by the media" is a stretch: Murdoch has been hard at work ignoring all of it.
  - thewileyone 5y ago
    I watched "Secret City" and was aghast at the secret trials, evidence, etc. Is all that really happening today in Australia?
simonh 5y ago
> If the NCMEC searches by providers are being done as a result of government coercion then the fourth amendment requires there be a search warrant. Since there isn't one, these searches would all be unlawful if there was coercion. Not a US citizen, so I’m not familiar with this argument. As I understand it the government isn’t searching anything themselves so would the requirement for a search warrant apply? I think what the US government is requiring is that if a service provider comes across CSAM they must report it. Since I don’t see why searching your own service would be anything to do with search warrants either, is it constitutional to make such a requirement for other reasons? Finally even if Apple could avoid this requirement, which they seem to have largely been doing until now, was it viable for them to continue like that? Even without a legal mandate to actively search for CSAM, knowing there must be millions of unreported CSAM images on their service can’t have been a comfortable position to be in.
- nullc 5y ago
  If the government requires or otherwise coerces someone to perform the search, then the searching party is acting as an agent of the government and is equally subject to the fourth amendment. Similarly, the government can't create a privileged entity like NCMEC and allow it to search without a warrant and pretend it's not the government doing. What is permitted is that if a private entity of their own free will and self interest searches and then finds something, the government can require them to make a report when they found something. Just as you say. But the government cannot require them to search in the first place, not without extending the fourth amendment protection against search. Apple can decide that the commercial value of reducing the risk that they're accused of helping perverts is greater to them than the commercial value of respecting the customers privacy. Indeed. But lets call that what it is, and not make excuses that they're forced to search: They're not. They are choosing to search.
  - dpkonofa 5y ago
    Take your argument one step further - the government knows this and starts issuing warrants for exactly these situations. Now, Apple is in a position where they have to violate their user’s privacy and share content in order to comply with the search warrants. The new system allows them to comply with warrants without ever knowing or needing to know what the contents of users’ phones are and only in cases where it’s known that illegal content exists. Apple can’t divulge any other content from the users’ devices because it doesn’t have it or know what it is in the first place.
dpkonofa 5y ago
I’m not making excuses. The government can mandate that Apple monitor content uploaded to its services. All the other major hosting providers do this already. The only difference here is that Apple is trying to maintain encryption while also giving an out. They can’t give more information to the government if they don’t have it.
- nullc 5y ago
  > The government can mandate that Apple monitor content uploaded to its services. In the US, if the Government were to mandate Apple search the users content, then Apple would be acting as an agent of the government and the searches would require a warrant per the fourth amendment. This is the unambiguous case law. If Apple is being forced they should say so explicitly rather than secretly participating in an unlawful conspiracy to violate their customer's fourth amendment rights. Other providers, such as google, have been unambiguous in their testimony in court that they are not being coerced, for example quoting US v. Miller (6th Cir. 2020): > Companies like Google have business reasons to make these efforts to remove child pornography from their systems. As a Google representative noted, “[i]f our product is associated with being a haven for abusive content and conduct, users will stop using our services.” McGoff Decl., R.33-1, PageID#161. > Did Google act under compulsion? Even if a private party does not perform a public function, the party’s action might qualify as a government act if the government “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the” government. [...] Miller has not shown that Google’s hash-value matching falls on the “compulsion” side of this line. He cites no law that compels or encourages Google to operate its “product abuse detection system” to scan for hash-value matches. Federal law disclaims such a mandate. It says that providers need not “monitor the content of any [customer] communication” or “affirmatively search, screen, or scan” files. 18 U.S.C. § 2258A(f). Nor does Miller identify anything like the government “encouragement” that the Court found sufficient to turn a railroad’s drug and alcohol testing into “government” testing. See Skinner, 489 U.S. at 615. [...] Federal law requires “electronic communication service providers” like Google to notify NCMEC when they become aware of child pornography. 18 U.S.C. § 2258A(a). But this mandate compels providers only to report child pornography that they know of; it does not compel them to search for child pornography of which they are unaware.
coldtea 5y ago
>Thus far, tech companies like Google and AOL have gone out of their way to testify that there is no coercion (I haven't found a case involving Apple). If there were coercion it would be a shocking conspiracy. Isn't Google a company with billion dollar government contracts? No coercion required...
- nullc 5y ago
  If Google is being forced to search their users private data for fear of losing government contracts then they've purjured themselves in court by claiming otherwise. If that were the case and Google honestly testified that they performed the searches based on the belief that the government would withhold business from them it is likely that the warrantless searches would be disallowed. Courts have found that even covert encouragement can apply. What matters is that the if it's functionally the government's choice if the searching does or doesn't happen, then its subject to the fourth amendment.
  - coldtea 5y ago
    >If Google is being forced to search their users private data for fear of losing government contracts then they've purjured themselves in court by claiming otherwise. Doesn't need to be fear. Doesn't even need anybody to insinuate something threatening. The conflict of interest is enough, to willingly do anything you're asked and play the good boy out of greed - to keep/get more contracts.
- nl 5y ago
  This seems to imply "the government" is some single minded entity. Anyone who has had to deal with "the government" knows that it is rare that the same department can stick to a purchasing strategy.
thayne 5y ago
> Apple is doing this because they believe they'll make more money this way And possibly, as mentioned in an earlier post on HN, as a defense against Anti-trust litigation.

by nullc 5y ago

usaman 5y ago

>> If there were coercion it would be a shocking conspiracy. This comment is as if the 2001-2010 decade never happened. Secret wiretaps. Secret Evidence. Overseas torture facilities. Imprisonment without charges. What makes you think that checks and balances would miraculously appear after having disappeared for over a decade. NOTE: this is a USA-centric viewpoint

nullc 5y ago
I would not argue that the conspiracy is impossible, but if it exists then it makes Apple's actions less excusable instead of more excusable. If the conspiracy exists Apple is an active participant in secretly and illegally undermining the constitutional rights of well over a hundred million Americans. If the conspiracy does not exist, then they're simply lawfully invading people's privacy in order to improve their profits.
strken 5y ago
Those are examples of shocking conspiracies that got uncovered. Illegal wiretapping and Guantanamo Bay ended up in the news and we're still talking about them now.
- bigfudge 5y ago
  But nobody apologies for them or went to prison. There is little to believe the don’t continue.
  - bigiain 5y ago
    Snowden did. (Well, effectively did. He'd totally go to prison if he stepped foot in a country that'd extradite him to the US.) But you're right, none of the people who broke all the laws Snowden showed us were getting broken has suffered any consequences.
bigiain 5y ago
> NOTE: this is a USA-centric viewpoint Those are USA-centric examples. I'm sure the viewpoint is just as valid across five eyes and even worse in places like Saudi Arabia, Turkey, China et al. I'm from Australia, allegedly a 1st world democracy - and secret wiretaps, secret evidence (and even secret trials!), overseas torture facilities, imprisonment without charges - are all public policy, covered my the media, and enshrined in laws passes by both of the two-party political system.
- torified 5y ago
  >Australia Don't forget raiding journalists homes and public broadcasters (using illegal warrants!) for reporting on proposed secret spying and hacking laws. Nice "democracy".
- XorNot 5y ago
  "Covered by the media" is a stretch: Murdoch has been hard at work ignoring all of it.
- thewileyone 5y ago
  I watched "Secret City" and was aghast at the secret trials, evidence, etc. Is all that really happening today in Australia?

simonh 5y ago

> If the NCMEC searches by providers are being done as a result of government coercion then the fourth amendment requires there be a search warrant. Since there isn't one, these searches would all be unlawful if there was coercion. Not a US citizen, so I’m not familiar with this argument. As I understand it the government isn’t searching anything themselves so would the requirement for a search warrant apply? I think what the US government is requiring is that if a service provider comes across CSAM they must report it. Since I don’t see why searching your own service would be anything to do with search warrants either, is it constitutional to make such a requirement for other reasons? Finally even if Apple could avoid this requirement, which they seem to have largely been doing until now, was it viable for them to continue like that? Even without a legal mandate to actively search for CSAM, knowing there must be millions of unreported CSAM images on their service can’t have been a comfortable position to be in.

nullc 5y ago
If the government requires or otherwise coerces someone to perform the search, then the searching party is acting as an agent of the government and is equally subject to the fourth amendment. Similarly, the government can't create a privileged entity like NCMEC and allow it to search without a warrant and pretend it's not the government doing. What is permitted is that if a private entity of their own free will and self interest searches and then finds something, the government can require them to make a report when they found something. Just as you say. But the government cannot require them to search in the first place, not without extending the fourth amendment protection against search. Apple can decide that the commercial value of reducing the risk that they're accused of helping perverts is greater to them than the commercial value of respecting the customers privacy. Indeed. But lets call that what it is, and not make excuses that they're forced to search: They're not. They are choosing to search.
- dpkonofa 5y ago
  Take your argument one step further - the government knows this and starts issuing warrants for exactly these situations. Now, Apple is in a position where they have to violate their user’s privacy and share content in order to comply with the search warrants. The new system allows them to comply with warrants without ever knowing or needing to know what the contents of users’ phones are and only in cases where it’s known that illegal content exists. Apple can’t divulge any other content from the users’ devices because it doesn’t have it or know what it is in the first place.

dpkonofa 5y ago

I’m not making excuses. The government can mandate that Apple monitor content uploaded to its services. All the other major hosting providers do this already. The only difference here is that Apple is trying to maintain encryption while also giving an out. They can’t give more information to the government if they don’t have it.

nullc 5y ago
> The government can mandate that Apple monitor content uploaded to its services. In the US, if the Government were to mandate Apple search the users content, then Apple would be acting as an agent of the government and the searches would require a warrant per the fourth amendment. This is the unambiguous case law. If Apple is being forced they should say so explicitly rather than secretly participating in an unlawful conspiracy to violate their customer's fourth amendment rights. Other providers, such as google, have been unambiguous in their testimony in court that they are not being coerced, for example quoting US v. Miller (6th Cir. 2020): > Companies like Google have business reasons to make these efforts to remove child pornography from their systems. As a Google representative noted, “[i]f our product is associated with being a haven for abusive content and conduct, users will stop using our services.” McGoff Decl., R.33-1, PageID#161. > Did Google act under compulsion? Even if a private party does not perform a public function, the party’s action might qualify as a government act if the government “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the” government. [...] Miller has not shown that Google’s hash-value matching falls on the “compulsion” side of this line. He cites no law that compels or encourages Google to operate its “product abuse detection system” to scan for hash-value matches. Federal law disclaims such a mandate. It says that providers need not “monitor the content of any [customer] communication” or “affirmatively search, screen, or scan” files. 18 U.S.C. § 2258A(f). Nor does Miller identify anything like the government “encouragement” that the Court found sufficient to turn a railroad’s drug and alcohol testing into “government” testing. See Skinner, 489 U.S. at 615. [...] Federal law requires “electronic communication service providers” like Google to notify NCMEC when they become aware of child pornography. 18 U.S.C. § 2258A(a). But this mandate compels providers only to report child pornography that they know of; it does not compel them to search for child pornography of which they are unaware.

coldtea 5y ago

>Thus far, tech companies like Google and AOL have gone out of their way to testify that there is no coercion (I haven't found a case involving Apple). If there were coercion it would be a shocking conspiracy. Isn't Google a company with billion dollar government contracts? No coercion required...

nullc 5y ago
If Google is being forced to search their users private data for fear of losing government contracts then they've purjured themselves in court by claiming otherwise. If that were the case and Google honestly testified that they performed the searches based on the belief that the government would withhold business from them it is likely that the warrantless searches would be disallowed. Courts have found that even covert encouragement can apply. What matters is that the if it's functionally the government's choice if the searching does or doesn't happen, then its subject to the fourth amendment.
- coldtea 5y ago
  >If Google is being forced to search their users private data for fear of losing government contracts then they've purjured themselves in court by claiming otherwise. Doesn't need to be fear. Doesn't even need anybody to insinuate something threatening. The conflict of interest is enough, to willingly do anything you're asked and play the good boy out of greed - to keep/get more contracts.
nl 5y ago
This seems to imply "the government" is some single minded entity. Anyone who has had to deal with "the government" knows that it is rare that the same department can stick to a purchasing strategy.

thayne 5y ago

> Apple is doing this because they believe they'll make more money this way And possibly, as mentioned in an earlier post on HN, as a defense against Anti-trust litigation.