(Apple has cited Bernstein v. US as the reason they didn't have to write an app to unlock some mass shooter's phone for a fishing expedition, so that's why I think they agree with my didn't-go-to-law-school opinion there.)
(BTW, an aside aside. DJB represented himself in that case. Just some random number theory lover / C programmer that increased freedom for everyone in the country in his spare time. Super cool guy.)
From the wikipedia article you linked, the 1999 case that is cited as precedent and is the one that matters was not self-represented.
> Bernstein was represented by the Electronic Frontier Foundation, who hired outside lawyer Cindy Cohn and also obtained pro bono publico assistance from Lee Tien of Berkeley; M. Edward Ross of the San Francisco law firm of Steefel, Levitt & Weiss; James Wheaton and Elizabeth Pritzker of the First Amendment Project in Oakland; and Robert Corn-Revere, Julia Kogan, and Jeremy Miller of the Washington, DC, law firm of Hogan & Hartson
As for the original question, the framework for this kind of legislation is usually “we ban the hosting of CSAM, you either implement something that eliminates it or you risk being fined for breaking the law”. That may not sound different to you but it is an extremely clear distinction in first amendment terms from “the state department may deny you an export license to publish your code”. Bernstein v US was saying that the burdens to publishing were too high and so he was unable to speak. The burdens did include submitting code and ideas to the government. With CSAM scanning, you are not forced to publish your code (speak), just to do something that satisfies the ban on hosting the content. There are thousands of completely constitutional laws that require you to do stuff a certain way that may involve writing code. This would be one of those.
The San Bernardino thing is a bit more like Bernstein — the government wanted Apple to give them a software tool to unlock a phone. A bit like “give us your code and ideas” but still not quite “give us your code and ideas or we silence you”.
I must be missing something. The government compels people to speak all the time. In courtrooms every day, witnesses are brought to testify in a manner they can only refuse if it criminally implicates them. A witness simply not wanting to answer a question can and will be held in contempt of court and subject to imprisonment.
jrockway|3 years ago
There is some case law on the saying something you don't want to say part: https://www.mtsu.edu/first-amendment/article/933/compelled-s...
And there is some case law on the whole "code is speech" thing: https://en.wikipedia.org/wiki/Bernstein_v._United_States
(Apple has cited Bernstein v. US as the reason they didn't have to write an app to unlock some mass shooter's phone for a fishing expedition, so that's why I think they agree with my didn't-go-to-law-school opinion there.)
(BTW, an aside aside. DJB represented himself in that case. Just some random number theory lover / C programmer that increased freedom for everyone in the country in his spare time. Super cool guy.)
cormacrelf|3 years ago
> Bernstein was represented by the Electronic Frontier Foundation, who hired outside lawyer Cindy Cohn and also obtained pro bono publico assistance from Lee Tien of Berkeley; M. Edward Ross of the San Francisco law firm of Steefel, Levitt & Weiss; James Wheaton and Elizabeth Pritzker of the First Amendment Project in Oakland; and Robert Corn-Revere, Julia Kogan, and Jeremy Miller of the Washington, DC, law firm of Hogan & Hartson
As for the original question, the framework for this kind of legislation is usually “we ban the hosting of CSAM, you either implement something that eliminates it or you risk being fined for breaking the law”. That may not sound different to you but it is an extremely clear distinction in first amendment terms from “the state department may deny you an export license to publish your code”. Bernstein v US was saying that the burdens to publishing were too high and so he was unable to speak. The burdens did include submitting code and ideas to the government. With CSAM scanning, you are not forced to publish your code (speak), just to do something that satisfies the ban on hosting the content. There are thousands of completely constitutional laws that require you to do stuff a certain way that may involve writing code. This would be one of those.
The San Bernardino thing is a bit more like Bernstein — the government wanted Apple to give them a software tool to unlock a phone. A bit like “give us your code and ideas” but still not quite “give us your code and ideas or we silence you”.
kelseyfrog|3 years ago
refurb|3 years ago