Americans value their privacy. It is considered a right. Americans especially value the right to privacy from government intrusions. The Constitution’s 4th Amendment requires probable cause for a warrant to search or seize a person’s belongings. This is also where we find our right to privacy.
Does the Right to Privacy Apply to Private Cell Phone Companies?
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 voluntarily giving permission for their computers and phones to be searched. This is 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 and Searches for 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.
Penalties for Child Porn Often Include Long Prison Sentences
If someone is caught with sexually explicit 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. These include if the child is prepubescent, if the images were re-shared (distributed), and if the defendant produced the images.
Federal Child Porn Sentences are Harsh!
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 prison. Like state law, federal penalties increase depending on age of the victim and whether the defendant produced or distributed the child pornography.
Federal penalties are also enhanced if the defendant has prior convictions for sex crimes. As a result, persons with child pornography convictions can end up being sent to prison for 15 years or even 20 years.
If you are facing federal child pornography charges, be sure and hire an federal crimes expert. Federal courts have their own rules and procedures and require someone with much experience in these courts. To help you understand some of these rules and procedures, we have posted a series of articles that appear elsewhere on this website. This series begins with; What Are the Steps in a Federal Criminal Case and How are These Different from State Crimes?
Cell Phone Privacy Concerns
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. Others worry 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 follow these steps:
Dos and Don’ts When Facing a Child Pornography Case
If you have been charged with child pornography, the first thing to do is not agree to any searches. This includes a search of your phone or computer. The second thing is, don’t agree to give an interview or answer any questions.
The third thing to do is to contact the child pornography defense attorneys at the Barone Defense Law Firm. We can handle your case in any court in the State of Michigan. We can also represent you in federal court if you’re charged with a federal crime of any kind.
Avoid become branded as a sex offender and having to put your name on the sex offender registry. Call today for a free consultation.