Scanning iPhones t Scanning iPhones to Save Childr e Children: Apple en: Apple’s On-De s On-Device Hashing vice Hashing Algorithm Should Survive a Fourth Amendment Challenge
Abstract
When Apple announced it would combat the growth of child
sexual abuse material (CSAM) on its platform by scanning all its
users’ devices without their consent, many of its loyal customers
felt betrayed. With tech companies such as Google and Facebook
arranging their business models around selling their customers’
personal information, Apple customers saw the company’s focus
on privacy as a refreshing alternative. However, as Apple itself
privately acknowledged, this emphasis on privacy had led to it
becoming a haven for CSAM. Despite the reputational damage it
would incur with its customers, Apple resolved to confront
CSAM on its platform in an unprecedented manner. Until Apple’s announcement, no major tech company had resolved to install a hashing algorithm directly onto its devices to search for
CSAM.
Apple’s move places itself in the middle of a legal firestorm
with the protections of the Fourth Amendment squaring off
against the public demand to eradicate CSAM and protect the
nation’s children from abuse. In deciding CSAM cases, courts
have often focused on the application of the private search doctrine. Tech companies implementing anti-CSAM hashing protocols have sometimes run afoul of this doctrine and other aspects
of Fourth Amendment jurisprudence.
This Comment argues that Apple’s move not only complies
with the constitutional standards expressed by circuit courts but
exceeds those standards. In addition, a strong public policy justification exists for Apple’s initiative. Congress has repeatedly expressed its intent to combat CSAM and protect children from
sexual abuse, and by complying with this congressional intent, Apple aligns with public policy. Finally, this Comment recommends that the U.S. Supreme Court resolve the circuit split regarding Fourth Amendment-implicated CSAM cases by adopting
a new rule.
Description
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Article
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Keywords
child sexual abuse material, technology, law, privacy, hashing algorithm, investigation
Citation
Gernand, T. (2022). Scanning iPhones t Scanning iPhones to Save Childr e Children: Apple en: Apple’s On-De s On-Device Hashing vice Hashing Algorithm Should Survive a Fourth Amendment Challenge. Dickinson Law Review. Penn State University.