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>> 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

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.

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.

But nobody apologies for them or went to prison. There is little to believe the don’t continue.

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.

> 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.

>Australia

Don't forget raiding journalists homes and public broadcasters (using illegal warrants!) for reporting on proposed secret spying and hacking laws.

Nice "democracy".

"Covered by the media" is a stretch: Murdoch has been hard at work ignoring all of it.

I watched "Secret City" and was aghast at the secret trials, evidence, etc. Is all that really happening today in Australia?

> 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.

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.

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.

A warrant must name the specific persons/places/things to be searched. A automatic dragnet search isn't required with a warrant.

> it’s known that illegal content exists

A point of clarification: The system divulges the encryption keys to content when the content's "perceptual hash" matches one in the database the specific user is being tested against. Apple claims that the hashes are provided by NCMEC "and other parties". It is already known that the NCMEC databases has at least some hits for non-illegal content. Who knows what these databases might contain in the future. There is certainly no structural requirement in the system that the content is illegal or some specific kind of illegal.

For users in Thailand the apple database could just as well be full of hashes of cartoons insulting to the monarch (which are illegal there, as I understand it) and no one would be able to tell, at least not before apple users started being rounded up and summarily executed.

Yes but the criteria for a warrant can be nothing more than reasonable suspicion. So a warrant could be issued for access to someone’s entire device regardless of whether objectionable content exists on it or not. Theoretically, a government could issue a warrant for every single person’s phone and get what they want. This prevents anything even close to that from happening because users aren’t required to provide the keys and Apple won’t have them unless that content matches what’s on the list.

On your second point, yes… that’s a very real possibility and one that I’m sure Apple has already considered and has responded to.

> Theoretically, a government could issue a warrant for every single person’s phone and get what they want.

For that you'd need a sham court full of rubber stamping judges handing out bogus search warrants for every single questionable and illegal request that comes to them. That seems a stretch of the imagination? What judge would to _that?_

We could call that the FISA Court, right?

Glad I’m not the only one.

No, you need just one: "every phone connected to at least two of these N base stations over this 48-hour window".

Which is quite a modern take on a historically reviled phenomenon, so you should call them for what they are: general warrants.

> 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?

There's a difference between cops paying someone to break into a suspect's house to steal evidence without a warrant, and a 3rd party that, while doing business, comes across material that might be criminal evidence.

The former case, in the US, falls under the doctrine of the "fruit of the poisonous tree"[1]. Evidence collected illicitly won't be allowed in court, and any evidence or argument based on the tainted evidence can be thrown out, as well.

I think the line is blurred with the system in the OP, where it seems like it kind of fits the latter case. It's fuzzy to me when parties are working in tandem with law enforcement, even going as far as running law enforcement's own systems voluntarily, or collecting or giving up information without a warrant when simply asked. To me, that seems a lot more like former case, where the government persuades someone to collect evidence on their behalf without warrants or subpoenas.

[1] https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

> voluntarily

In the US, that is currently where we've drawn the line.

They can cooperate, but it has to be voluntarily and the private party can't be government-by-another-name (e.g. not NCMEC which has a special legislative permission to handle child porn and is overwhelmingly funded by the government), but an actual private party.

Hasn't this already been tested in a US court? I can't remember what it was called, but since you're giving away your privacy to a third party, you've given up right for privacy period.

Two different legal doctrines.

https://olemiss.edu/depts/ncjrl/pdf/PrivateSearchDoctrine.pd...

https://en.wikipedia.org/wiki/Third-party_doctrine

Thank you. Third-party doctrine was what I was thinking of. So I'm guessing putting things in your phone will soon be seen as crossing into third-part territory if it hasn't already.

It's not hard to imagine that this kind of automated scanning might be used as an argument for that: "Clearly you had no expectation of privacy for information on your phone..."

Bingo. If you chose devices that aren't open, you're chosing to give away your freedoms. I makes the jump to LineageOS earlier this year because I could see the signs that Apple were getting to comfortable with government. Now, I've got the confirmation I was right in my hunch

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.

> 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.

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.

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).

This is, in part, the "particularity" issue in fourth amendment law.

https://www.law.cornell.edu/constitution-conan/amendment-4/p...

https://en.wikipedia.org/wiki/Writ_of_assistance

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.

Or they could just not invade the users privacy, encrypt the backups, and have no access to the user's data.

They're not invading the users' privacy. They have to comply with a lawful government order. This is allowing them to do that without violating users' privacy.

They could make themselves unable to access any data and still comply with lawful orders. There's no rule that you have to preemptively design systems to make data extraction easier.

This planned system means less violation of privacy in cases where a warrant exists, and more violation of privacy where there is no warrant. That's not exactly an amazing tradeoff.

I don’t follow. This system is exactly what you’re describing. Apple is not able to access any of your data. The most they get access to is the signature of the file (which would already be matched with known CSAM content) and a potential thumbnail of the CSAM content.

I feel like it should be obvious that I'm describing a system where they don't add this code.

And depending on what's in the database, signatures and thumbnails can be really bad.

Apple has not been ordered by the government to scan user's images.

Because the scanning is happening without a warrant, if the government compelled apple to perform the search the search would be illegal. It is only legal for Apple to perform this search because it is in no way compelled by the government.

The government cannot obtain a blanket warrant against everyone. This kind of dragnet scanning has to be voluntarily performed by a private party for it to be lawful.

By all means! please prove to us that the government secretly has ordered Apple and other companies to scan users private data: If you do so it will result in overturning tons of convictions due to the unlawful searches which were concealed due perjury by the government and tech companies who have consistently claimed that the scanning by the tech companies is completely voluntary in in their own self interest.

>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...

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.

>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.

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.

> 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.