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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. T

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.
- dpkonofa 5y ago
  I think you’re missing the point. If the only thing stopping the government is a warrant (which the government itself can authorize) then there’s nothing stopping the government from just issuing those warrants. It may take slightly longer to do so but they will get it and all they need is reasonable suspicion to make that happen. This system makes it impossible for Apple to provide anything to the government outside of anything that is already criminal. If the government entity gets a warrant, they can simply get access to the whole device. This, in theory, prevents that situation because everything is encrypted and only things that are confirmed as being CSAM are provided. They literally can’t provide something they don’t have.
  - nullc 5y ago
    To be equivalent, they'd have to get courts to issue warrants for hundreds of millions of US Apple product users, people who have no reason to suspect they've engaged in any wrong doing. I suspect the courts would take issues with that. Besides, if they could get the warrants they could get access to all the data in any case (e.g. by getting access to the users backups to steal the users credentials and then accessing the icloud accounts).
    - schoen 5y ago
      This is, in part, the "particularity" issue in fourth amendment law. https://www.law.cornell.edu/constitution-conan/amendment-4/particularity https://www.law.cornell.edu/constitution-conan/amendment-4/p... https://en.wikipedia.org/wiki/Writ_of_assistance https://en.wikipedia.org/wiki/Writ_of_assistance
    - dpkonofa 5y ago
      Yes but, effectively, the end result is the same without violating users' privacy. If none of what's on their device matches the hashes, then nothing will have been done and Apple would be able to encrypt those backups also which would invalidate the whole 2nd part of your complaint.
      - 5y ago

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.

dpkonofa 5y ago
I think you’re missing the point. If the only thing stopping the government is a warrant (which the government itself can authorize) then there’s nothing stopping the government from just issuing those warrants. It may take slightly longer to do so but they will get it and all they need is reasonable suspicion to make that happen. This system makes it impossible for Apple to provide anything to the government outside of anything that is already criminal. If the government entity gets a warrant, they can simply get access to the whole device. This, in theory, prevents that situation because everything is encrypted and only things that are confirmed as being CSAM are provided. They literally can’t provide something they don’t have.
- nullc 5y ago
  To be equivalent, they'd have to get courts to issue warrants for hundreds of millions of US Apple product users, people who have no reason to suspect they've engaged in any wrong doing. I suspect the courts would take issues with that. Besides, if they could get the warrants they could get access to all the data in any case (e.g. by getting access to the users backups to steal the users credentials and then accessing the icloud accounts).
  - schoen 5y ago
    This is, in part, the "particularity" issue in fourth amendment law. https://www.law.cornell.edu/constitution-conan/amendment-4/particularity https://www.law.cornell.edu/constitution-conan/amendment-4/p... https://en.wikipedia.org/wiki/Writ_of_assistance https://en.wikipedia.org/wiki/Writ_of_assistance
  - dpkonofa 5y ago
    Yes but, effectively, the end result is the same without violating users' privacy. If none of what's on their device matches the hashes, then nothing will have been done and Apple would be able to encrypt those backups also which would invalidate the whole 2nd part of your complaint.
    - 5y ago