Americans value their privacy. It is considered a right. Americans especially value the right to privacy from government intrusions. The Constitution’s 4th Amendment, which requires probable cause for a warrant to search or seize a person’s belongings, has been interpreted to include this right to privacy. This Constitutional protection against unreasonable searches and seizures applies to governmental actions. But what about the actions of private companies? Can private companies search our stuff?
For private companies to be able to search our stuff, they generally get our permission. Many people don’t realize they’re giving permission for their computers and phones to be searched because the permission is couched in the fine print of the terms and conditions of the product they’re using. And to be able to use the product, the terms and conditions must be agreed to. For example, when someone sets up a new iPhone, accepting Apple’s terms and conditions is required for the phone to be used.
Included in Apple’s new terms and conditions for its iPhone will be a term allowing a program to search phones for child pornography. The program that will search iPhones for child pornography (called Child Sexually Abusive Material in Michigan) is called NeuralHash. This program will search the phone’s contents for hash values that indicate child pornography. Hash values are essentially digital fingerprints of files. NeuralHash will search hash values as opposed to actually viewing the files. If the hash values indicate child pornographic images as defined in the National Center for Missing and Exploited Children’s (NCMEC) database, NeuralHash will alert the NCMEC. From there, law enforcement could be alerted, a warrant obtained, the devices seized and searched, and criminal charges filed.
If someone is caught with child pornography on their Apple device, they could face both state and federal criminal charges. Under Michigan Compiled Laws, Sec. 750.145c, possession of Child Sexually Abusive Material is a felony punishable by up to four years in state prison. There are aggravating factors which can increase the potential sentence including if the child is prepubescent, if the images were re-shared (distributed), and if the defendant produced the images.
Under federal law, possession of child pornography is prohibited under 18 USC Section 2252. If convicted of federal child pornography possession, a defendant faces zero to 10 years in federal prison. Like state law, federal penalties increase depending on age of the victim and whether the defendant produced or distributed the child pornography. Penalties are also enhanced if the defendant has prior convictions for sex crimes.
Although law enforcement and child protection groups are celebrating the move by Apple, some privacy groups are very concerned about the use of NeuralHash. The concern is that the program will be abused and that governments will use it to surveil its citizens illegally and unnecessarily. Because NeuralHash can search encrypted devices and files, privacy groups are also worried that encryption won’t provide the level of security for which it’s intended. Lastly, there are worries that NeuralHash will flag things that aren’t really illegal or that, because of the break in the security, hackers will be able to place illegal files on people’s devices without their knowledge.
With Apple’s announcement of its implementation of NeuralHash, it’s clear that enforcement of of Michigan child pornography laws is getting stricter. More resources are being devoted to protecting children from predators. Hopefully, innocent people won’t inadvertently get caught up in the effort to end child pornography. In any case, if you’ve been contacted by law enforcement about involvement in child pornography, contact the child pornography defense attorneys at the Barone Defense Firm for consultation about your rights in dealing with police.