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Abstract
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Available at: https://digitalcommons.law.seattleu.edu/sjteil/vol13/iss2/4
Just how you can go find a car--it was a picture, a description, and a price."2 Approximately 500 Child Sex Abuse Materials (CSAM), also known as child pornography, will be traded online roughly every sixty seconds.3 The proliferation of CSAM has continued in the last fifteen years, and the problem was only accelerated by the rise of the internet and social media.4 A study by Thorn, an international anti-human trafficking organization, found that 70% of child sex trafficking victims were sold online.5
As a result, major tech media companies, such as Google, Microsoft, and Meta (formerly known as Facebook), have been scanning for CSAM on their platforms for years.6 Apple, on the other hand, did not have anything similar in place.7 In fact, around 2019, the National Center or Missing & Exploited Children (NCMEC) released a report documenting how often tech companies reported cases of CSAM on their platforms.8 Apple was relatively low on the list compared to other similarly prominent tech companies.9 The inattentiveness of Apple prompted members of Congress to demand that Apple do more to combat the issue.10 In response, Apple announced two Child Safety Features in August of 2021.11 The more controversial of the two would scan an Apple user's photos that were backed up to iCloud for CSAM ("CSF" or "Feature").12 After these Child Safety Features were announced, intense backlash among the public, privacy experts, politicians, and even Apple employees followed regarding the Fourth Amendment and privacy implications.13
The Hash Value Model (HVM) technology used in Apple's CSF does not violate the Fourth Amendment and maintains a user's privacy; however, guidance on how to gather evidence of CSAM using the HVM in criminal prosecution must be clarified to remedy the circuit split throughout the United States. Part I describes the mechanics of the HVM and explores how Apple and other tech companies use it to combat CSAM. Part II provides a history of the Fourth Amendment's intersection with technology and discusses two cases that illustrate the current circuit split on how to gather evidence in CSAM cases using the HVM legally. Finally, Part III addresses common critiques of Apple's CSF and proposes three solutions to the current circuit split.
2 Thorn, We Are Thorn., YOUTUBE (Nov. 14, 2013), https://www.youtube.com/watch?v=Se4OvAGJu4U&ab_channel=Thorn [https://perma.cc/35GF- WEFZ].
3 Microsoft Digital Crimes Unit, Microsoft PhotoDNA Cloud Service, YOUTUBE (July 14, 2015), https://www.youtube.com/watch?v=4TCj40IZHdk&t=2s&ab_channel=MicrosoftDigitalCrimesUnit [https://perma.cc/V3F7-K6ZD].
4 Technology Has Made It Easier To Harm Kids., Thorn, https://www.thorn.org/child-sexual- exploitation-and-technology/ [https://perma.cc/4KP3-88B8] (last visited Feb. 6, 2022, 10:00 PM); Thorn, supra note 2.
5 Thorn, supra note 2.
6 Joanna Stern, Apple's Child-Protection Features and the Question of Who Controls Our Smartphones, THE WALL STREET JOURNAL (Aug. 13, 2021), https://www.wsj.com/articles/apple- child-protection-features-11628861782?mod=searchresults_pos3&page=1 [https://perma.cc/ZHS6- 2KEV]. See Tracy Ith, Microsoft's PhotoDNA: Protecting children and businesses in the cloud, MICROSOFT (July 15, 2015) https://news.microsoft.com/features/microsofts-photodna-protecting- children-and-businesses-in-the-cloud/ [https://perma.cc/N84G-KLBQ] (Microsoft has used the technology since 2015); Paul Sawers, Google releases AI-powered Content Safety API to identify more child abuse images, VENTUREBEAT (Sept. 3, 2018), https://venturebeat.com/ai/google- releases-ai-powered-content-safety-api-to-identify-more-child-abuse-images/ [https://perma.cc/BLZ5-QZV7] (Google has used this technology since 2018); Casey Newton, Facebook open-sources algorithms for detecting child exploitation and terrorism imagery, THE VERGE (Aug. 1, 2019), https://www.theverge.com/2019/8/1/20750752/facebook-child-exploitation- terrorism-open-source-algorithm-pdq-tmk [https://perma.cc/RY68-BUU9] (Facebook has used this technology since 2019).
7 Michael H. Keller & Gabriel J.X. Dance, Child Abusers run Rampant as Tech Companies Look the Other Way, NEW YORK TIMES (Nov. 9, 2019), https://www.nytimes.com/interactive/2019/11/09/us/internet-child-sex-abuse.html [https://perma.cc/GQ28-LSDA]
8 NATIONAL CENTER FOR MISSING & EXPLOITED CHILDREN, 2019 REPORTS BY ELECTRONIC SERVICE PROVIDERS 1 (2019), https://www.missingkids.org/content/dam/missingkids/pdfs/2019- reports-by-esp.pdf [https://perma.cc/6JRN-XX6S].
9 Id.
10 Id.; See @mhkeller, TWITTER (Nov. 19, 2019, 7:53 AM), https://twitter.com/mhkeller/status/1196818679683530752 [https://perma.cc/3PGX-HYCS].
11 Tatum Hunter, Apps offer teens some one-and-done settings to stay safer online., THE WASHINGTON POST (Nov. 3, 2021), https://www.washingtonpost.com/technology/2021/11/03/social-media-safety-teens/ [https://perma.cc/F23D-26J6].
12 Tom Rolfe, Child Safety on iOS--Apple walks back photo-scanning plans, TAPSMART (Dec. 9, 2022), https://www.tapsmart.com/news/child-safety-ios/ [https://perma.cc/GV2F-VPPC].
13 Kellen Browning, Cybersecurity Experts Sound Alarm on Apple and E.U. Phone Scanning Plans, THE NEW YORK TIMES (Oct. 14, 2021), https://www.nytimes.com/2021/10/14/business/apple-child- sex-abuse-cybersecurity.html [https://perma.cc/4SKD-9HYV]; Gordon Kelly, Snowden Slams Apple CSAM: Warns iPad, iPhone, Mac Users Worldwide, FORBES (Apr. 28, 2021), https://www.forbes.com/sites/gordonkelly/2021/08/28/apple-iphone-warning-csam-threat-edward- snowden-upgrade-ios-15-privacy/?sh=29991ef71978 [https://perma.cc/PYJ3-7VME]; Apple criticism from the Bundestag, IFUN (Aug. 18, 2021), https://www.ifun.de/apple-kritik-csam- bundestag-174310/ [https://perma.cc/HSL2-G448]; Julia Love, Apple's child protection features spark concern within its own ranks, REUTERS (Aug. 12, 2021), https://www.reuters.com/technology/exclusive-apples-child-protection-features-spark-concern- within-its-own-ranks-2021-08-12/ [https://perma.cc/4PGD-73R4].
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