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Can someone explain how Apple being coaxed or coerced into searching all of our personal devices for illegal files by federal law enforcement is not an unconsti
by travoc 5y ago
Can someone explain how Apple being coaxed or coerced into searching all of our personal devices for illegal files by federal law enforcement is not an unconstitutional warrantless search?
- michaelbjames 5y agoAs I understand, they're acting as an agent of the government, it's a private company. So, the 4th amendment protecting against unreasonable searches _by the government_ does not apply.
- himaraya 5y agoNo, the Fourth Amendment applies to private actors acting on behalf of the government.
- dragonwriter 5y ago> No, the Fourth Amendment applies to private actors acting on behalf of the government. It applies to private actors acting as agents of the government, it doesn't apply to private actors who for private reasons not directed by the government conduct searches and report suspicious results to the government (other property and privacy laws might, though.)
- simondotau 5y agoSo the 4th Amendment doesn't cover Apple voluntarily inducing their devices to check for CSAM prior to cloud upload. But the 4th Amendment would cover Apple being forced to modify their system to scan for anything else the Government has told them to.
- 0x426577617265 5y agoThat's correct. If the government asked them to do it, then it would require a warrant to conduct the search.
- syshum 5y agoActing as a agent, used to anyway, mean the 4th amendment attached to the company if they WERE NOT acting as an agent then the 4th would not apply. I think they way they get around that is not do not report to the FBI but instead to NCMEC a "non-profit"
- ahnick 5y agowho in turn reports to the government?
- syshum 5y agoYes, but this is what happens when you make the 4th amendment in to Swiss cheese with exception after exception you do not want criminals to escape justice to do you???? /s
- dragonwriter 5y agoReporting to the government doesn't make you a government agent, doing the search at the direction of the government does. If a private citizen, on their own initiative, searches your house, finds contraband, and reports it to the government, they may be guilty of a variety of torts and crimes (both civil and criminal trespass, among others, are possibilities), there is no fourth amendment violation. If a police officer asks them to do it, though, there is a different story.
- nullc 5y ago> I think they way they get around that is not do not report to the FBI but instead to NCMEC a "non-profit" No. The courts have already explicitly rejected the entity that NCMEC is a private entity. NCMEC can only handle child porn via special legislative permission and is 99% funded by the government. The searches here are lawful because Apple searches out of their own free will and commercial interest and when there is something detected their employees search your private communications (which the EULA permits). This is also why Apple must review the matches before reporting them-- if they just matched an NCMEC database and blindly forwarded then to NCMEC then it would be the NCMEC conducting the search and a warrant would be required.
- mc32 5y agoIt’s that third party doctrine that is so convenient when acquiring information otherwise requiring a warrant to obtain.
- throwaway0a5e 5y agoIt's right up there with Wickard v. Filburn in terms of SCOTUS screw-ups.
- slapfrog 5y agoWhy stop there? Instead of getting pesky warrants to search apartments, the government could just contract the landlord to do the search for them. After all, the landlord owns the property and ownership trumps every other consideration in libertarian fantasy-land.
- syshum 5y agoBecause for the last at least 80 years the constitution as not been seen as a document limiting government power, but instead as a document limiting the peoples rights it has literally been inverted from it original purpose
- derwiki 5y agoIANAL but I presume I consented to this in their EULA.
- ahnick 5y agoA EULA cannot force you to give up your constitutional rights.
- C19is20 5y agoWhat about all the people not USA?
- vageli 5y agoThe USA is not the only country with a constitution.
- int_19h 5y agoIt's not, but it's one of the few that doesn't have some verbiage along the lines of UDHR: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."
- greyface- 5y agoConstitutional rights can be voluntarily waived.
- dragonwriter 5y ago> Constitutional rights can be voluntarily waived. That...varies. The right to a speedy trial can be waived. The right against enslavement cannot. You can consent to a warrantless or otherwise unreasonable search given adequate specificity, but outside of a condition for release from otherwise-constitutional more severe deprivation of liberty (e.g., parole from prison) I don't think it can be generally waived in advance, only searches specifically and immediately consented to when being executed. But I don't have any particular cases in mind, and that understanding could be wrong. But “constitutional rights can be waived” is definitely way to broad to be a good useful guide for resolving specific isssues.
- tartoran 5y agoThey’re not coaxed nor coerced
- paulie4542 5y agoNo reasonable company would do something unreasonable as this without being pressured.
- stjohnswarts 5y agoYou can bet they were by the TLA intel agencies, but you will not find that documented anywhere other than "Met with FBI/NSA/XXX for liason purposes". I'm sure they were given an ultimatum and they folded.
- mc32 5y agoProbably the same way people say that when Twitter moderates speech on their platform it’s not censorship.
- amznthrwaway 5y agoAnd it’s not censorship when HN bans some posts.
- throwaway0a5e 5y agoOr when the NSA feeds your texts through their ML and into their DB it's not a "search" because humans haven't gone looking for it.
- corobo 5y agoOoh the copilot defence
- Componica 5y agoIt's most likely a demand by China so that they can create an infrastructure to locate political dissidents. Oh look, a Winnie the Pooh Xi meme ended up in your gallery/inbox. Why is there a knock at the door? I'm pretty sure thats the real reason.
- endisneigh 5y agowhat's this take based on - have a link or anything?
- kurofune 5y ago>what's this take based on Racism and ignorance.
- mmastrac 5y agoIn fairness, this is literally happening on Chinese messenger services today so I wouldn't call it either of those
- XorNot 5y agoApple isn't being pressured from China, but criticizing the CCP as the brutal dictatorship it is is not racist (and that idea is done verbatim CCP propaganda).
- kurofune 5y agoRandomly suggesting that every authoritarian decision taken unilaterally by an american company was made to please the evil chinese government while offering no substantial proof is not "criticizing the CCP", it is just shoehorning US's far-right talking points into a thread that has nothing to do with it.
- someperson 5y agoI don't know about the suggestion that it's the government of China pushing for the feature itself, but the fact the feature now exists and WILL be used by authoritarian regimes to scan for political content is clearly understood by Apple employees. From the article: > Apple employees have flooded an Apple internal Slack channel with more than 800 messages on the plan announced a week ago, workers who asked not to be identified told Reuters. Many expressed worries that the feature could be exploited by repressive governments looking to find other material for censorship or arrests, according to workers who saw the days-long thread.
- ajsnigrutin 5y agoTechnically it's not apple searching, it's your phone searching itself. Sadly, they'll probably put it somewhere on page 89 of their ToS.
- bobsterman 5y agoIf you do not understand what the software on your phone is doing; you cannot control it; you do not own it. Apple owns it.
- alpaca128 5y agoNational Security Letters for example. They wouldn't even be allowed to talk about it.
- gbrown 5y agoSimple - our laws haven't evolved with technology. That's why your mail has about a million times more protection than your email.
- kilroy123 5y agoYup. That's what happens when the country is ran by a bunch of old lawyers.
- Barrin92 5y agoprobably depends more on the kind of old lawyer. I've actually noticed that in general older people tend to be more privacy conscious than younger ones. Old people at least still know what secrecy of correspondence even is. It's not even a concept that exists any more for a lot of gen z. In particular American supreme court arguments often stand out to me in how clearly the judges manage to connect old principles to newer technologies.
- stjohnswarts 5y agoIt has nothing to do with them being "old". Saying that is a very ageist thing to say. I know a bunch of old techies who are completely against this. It's about lack of technical knowledge and how this is being twisted to seem okay. Your average millennial doesn't give a damn about it either.
- EpicEng 5y ago>old lawyers Meanwhile, it's predominantly young people who freely hand their information to mega-corps to be disseminated and distributed. Outside your (our) bubble young people don't give two craps about privacy.
- ink404 5y agoOutside this bubble most people young or not don't give two craps about privacy
- shuckles 5y ago
- schaefer 5y agoI am not a Lawyer, but my understanding is: The wording of the CSAM law is that content should be scanned when uploaded. That condition "upon upload" triggers the 3rd party doctrine. Apple has gone above and beyond here, not the actual US gov. So, the bill of rights doesn't apply to Apple's decision to scan content on device, just before it is uploaded.
- nullc 5y agoThere is no law that requires providers to scan users private documents, even uploaded. However, if they do review the material and see child porn they're obligated to report it.
- istingray 5y agoAny chance you have a good link explaining this? I saw the parent comment earlier and wanted to add this. But I only recently learned that the US federal government cannot require or incentivize providers to scan user's private documents, so didn't want to post without clear sources.
- 0x426577617265 5y agoIt's covered in 18 U.S. Code § 2258A - Reporting requirements of providers
- stjohnswarts 5y agoApple hasn't gone above and beyond anything here. The only way they can save face is laugh at the government and not give into their demands to set up a backdoor tool to scan every iphone user.
- nullc 5y agoThey aren't being coaxed or coerced. If they were forced-- or even incentivized-- by the government to perform these searches than they'd be subject to the fourth amendment protecting against warrantless searches. Apple is engaging in this activity of their own free will for sake of their own commercial gain and are not being incentivized or coerced by the government in any way. As such, the warrantless search of the customer data is lawful by virtue of the customer's agreements with Apple.
- azinman2 5y ago> Apple is engaging in this activity of their own free will for sake of their own commercial gain What's the commercial gain?
- slg 5y agoThis will likely be paired with the rollout of full encryption for iCloud and they will sell the entire thing as a pro-privacy move.
- ninkendo 5y agoThat would appear to have backfired.
- sethammons 5y agoMore access to markets subject to totalitarian regimes
- azinman2 5y agoI'm assuming you're kidding here, but if you look at the list of countries already selling/supporting iPhones, what's not on the US export ban list that's a totalitarian regime? https://www.apple.com/iphone/cellular/ https://www.apple.com/iphone/cellular/
- stjohnswarts 5y ago
- breck 5y agoMy money is this is secretly about nuclear, bio, chemical or other WMD or “dangerous” material. I can’t imagine that Apple would be so stupid to open such a Pandora’s box to an Orwellian state and crimes against all children in the name of making no statistical difference in the porn problem. There has got to be a hidden story here and severe pressure on top executives, otherwise I can’t see how the math makes sense. Please keep digging, journalists!
- cucumb3rrelish 5y agoSomething tells me people with access to nuclear arsenal are not going to take pictures of it with an iphone and share them via imessages
- 6AA4FD 5y agoYou mean like american soldiers wouldn't store sensitive nuclear info on public Quizlet decks? Hmm
- tibyat 5y agoDon't know where you have been the past four years, frankly I'm jealous. The US president literally did this: https://www.wired.com/story/trump-tweeted-a-sensitive-photo-internet-sleuths-decoded-it/ https://www.wired.com/story/trump-tweeted-a-sensitive-photo-...
- akira2501 5y ago> the porn problem. Is the pornography the problem, or is the the abuse of children?
- stjohnswarts 5y agoBecause it's a contract between you and apple. You don't have to use their phones and they're a corp not the government. Personally I see it as an underhanded attempt for the government to use apple as a police force in everything but actually deputizing them. They're using a loop hole in the 4th amendment to spy on you without a warrant.
- mzs 5y agoBecause it's only a hash that matches and then a court order is needed to get the actual contents.
- alfiedotwtf 5y ago"The third-party doctrine is a United States legal doctrine that holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have "no reasonable expectation of privacy."" https://en.m.wikipedia.org/wiki/Third-party_doctrine https://en.m.wikipedia.org/wiki/Third-party_doctrine