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

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.

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

Nice "democracy".

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.

But you're right, none of the people who broke all the laws Snowden showed us were getting broken has suffered any consequences.

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.

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.

> 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.

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.

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?

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

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

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.

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

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

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.

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).

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

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

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.

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.

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

Isn't Google a company with billion dollar government contracts? No coercion required...

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.

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.

And possibly, as mentioned in an earlier post on HN, as a defense against Anti-trust litigation.