West Virginia’s anti-Apple CSAM lawsuit would help child predators walk free, Mike Masnick writes in a TechDirt article.
On February West Virginia’s attorney general filed a consumer protection lawsuit against Apple, claiming the tech giant has failed to prevent child sexual abuse materials from being stored and shared via iOS devices and iCloud services, reports CNBC.
Republican John “JB” McCuskey accuses the tech giant of prioritizing privacy branding and its own business interests over child safety. He claims other big tech companies, including Google, Microsoft, and Dropbox have been more proactive, using systems like PhotoDNA to combat such material.
In 2021, Apple tested its own CSAM-detection features, then chose to delay them. Here’s what the company said in a statement to 9to5Mac at the time regarding the delay: Last month we announced plans for features intended to help protect children from predators who use communication tools to recruit and exploit them, and limit the spread of Child Sexual Abuse Material. Based on feedback from customers, advocacy groups, researchers and others, we have decided to take additional time over the coming months to collect input and make improvements before releasing these critically important child safety features.
Masnick says that what McCuskey is actually doing, if he succeeds, is building an extraordinarily effective legaldefense mechanism for child predators. He adds that here’s the part McCuskey’s complaint does not engage with: the moment a court orders Apple to conduct those scans, any CSAM those scans find becomes evidence obtained through a warrantless government search—and under well-established Fourth Amendment doctrine, that evidence gets excluded. Defense attorneys will move to suppress it. They will win. And without the CSAM itself as evidence, convictions become nearly impossible.
“If West Virginia wins—if an actual court orders Apple to start scanning iCloud for CSAM—then every image flagged by those mandated scans becomes evidence obtained through a warrantless government search conducted without probable cause,” Masnick says. “The Fourth Amendment’s exclusionary rule means defense attorneys get to walk into court and demand that evidence be thrown out. And they’ll win that motion. It’s not even a particularly hard case to make.
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