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August 6, 2021 3:49PM

Apple’s iPhone: Now With Built‐​In Surveillance

By Julian Sanchez

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In recent years, Apple has sought to brand itself as a strong defender of user privacy, boasting that they don’t need to monetize your personal data—since their business model is based on selling pricy hardware—and admirably fighting off government pressure to weaken or break strong encryption on its devices. That’s why it’s so alarming to see the Cupertino‐​based tech giant has decided that a shockingly misguided surveillance apparatus will soon be built right into the company’s widely‐​used operating systems.

Apple this week announced two major updates coming soon to its iOS, iPadOS, and macOS operating systems. Both have an unimpeachably laudable goal: fighting the spread of Child Sexual Abuse Material (CSAM) and victimization of children by online predators. But at least one of the two represents an extraordinarily dangerous idea that will be a dream‐​come‐​true for repressive regimes: That personal computing devices should be designed to spy on their users’ activity—and report it to the authorities.

Since I’ve seen the two very different systems Apple announced conflated in some of the public reactions, it’s worth distinguishing them briefly.

First, Apple announced an optional parental‐​control feature for its Messages app. When activated, the app will scan messages sent on the device using machine learning algorithms to detect what it believes may be nude images. The child will see a notice that the message they are about to view may contain explicit content, and if they nevertheless choose to view it, a notification with a blurred copy will be sent to the parent. While I am not wildly enamored of training children to be accustomed to digital surveillance as a parenting strategy—especially when it runs the risk of outing gay or gender‐​non‐​conforming teens to their parents before they are ready—this is not the truly dangerous tool. Parents who are inclined to do so already have plenty of options for installing spyware on their kids’ devices, and failing that can usually just take the device and look through it.

The really dangerous tool is the second one Apple announced—its “CSAM detection” system. This one operates, not by attempting to detect nudity in novel images, but by scanning the user’s Photo Library for matches against a table of “hash values” of known child abuse images maintained by the National Center for Missing and Exploited Children (NCMEC). (A “hash value” is a short string derived by running a larger file through a mathematical algorithm, and routinely used to quickly determine whether two files are identical.) If a certain “threshhold” of matches is reached—indicating a collection of child abuse imagery—the device notifies Apple, which in turn reports the user to NCMEC (and, by extension, the authorities). At least initially, this scan will only run on photos that have been designated for backup to Apple’s iCloud service—which is to say, photos that the user had already chosen to “share” with Apple. This is, however, a design choice rather than a technical limitation: The system could easily be altered to scan all images in the library—and, for that matter, to scan for matches to content other than child abuse images. As with the parental control tool for Messages, this system of “Client Side Scanning” circumvents any encryption that may protect files in transit by running the scans on the device itself, where the files are unencrypted while the device is unlocked.

Apple’s tool is based on an idea I called the “Pinpoint Search” (or “Zipless Search”) in a cover story I wrote for Reason more than a decade ago: A method of “searching” for illegal activity that only reveals the presence or absence of illicit material, without incidentally revealing other private information, in the way a traditional physical search would. If catching pedophiles who traffic in images of child abuse were the only way such a system could be deployed, it might be difficult to object to in principle.

The trouble is that the algorithm doesn’t know or care what sort of files it’s looking for. The same architecture that looks for images of child abuse could just as easily search for copyrighted material or memes that ridicule government officials. North Korea’s authoritarian regime already uses a similar system—mandated on all computing devices—to detect media the government considers “impure.”

Described more abstractly and content neutrally, here’s what Apple is implementing: A surveillance program running on the user’s personal device, outside the user’s control, will scan the user’s data for files on a list of prohibited content, and then report to the authorities when it finds a certain amount of content on the list. Once the architecture is in place, it is utterly inevitable that governments around the world will demand its use to search for other kinds of content—and to exert pressure on other device manufacturers to install similar surveillance systems.

Apple is, of course, already under significant government pressure to weaken encryption for the convenience of law enforcement—and this announcement is doubtless an attempt to relieve that pressure by demonstrating that the company is dedicated to combatting a particularly loathesome misuse of its products. Companies like Facebook, after all, routinely scan the unencrypted messages stored on their platform for CSAM, and it would not be surprising if this were a step toward resuming the plan—abandoned last year under FBI pressure—to store iCloud backups in an encrypted form.

From a strictly technical perspective, this approach probably does have fewer cybersecurity downsides than compromising encryption wholesale. From the point of view of privacy more broadly, however, this is at least equally dangerous. It is the endorsement by one of the largest industry players of the principle that ubiquitous spyware on consumer computing devices is normal and acceptable in free societies.

There are some more mundane reasons to doubt the efficacy of these systems. Pedophiles and child abusers with a modicum of technical sophistication will quickly learn to shut off iCloud backups, or switch to other messaging applications. It’s unclear yet how readily malicious actors may be able to deliberately create false‐​positive reports by crafting innocuous‐​looking images that yield “hash collisions” tricking the system into thinking it’s found CSAM. A scanning system implemented at the OS level with administrative privileges may be an attractive target for co‐​opting by other spyware, like the Pegasus tool deployed by many governments, which was recently found to have compromised the devices of numerous journalists and human rights activists around the world.

Ultimately, however, these are secondary considerations. The core question is whether we wish to normalize the sale of personal computing devices that come preinstalled with spyware outside the control of the user and owner, however noble the purpose to which that spyware is initially put. The answer free societies have given to that question for the past five decades is the right one: No.

Related Tags
Technology and Privacy
August 6, 2021 2:24PM

Overbroad Cryptocurrency Regulation Threatens Speech Too

By Will Duffield

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In search of money to pay for its trillion‐​dollar infrastructure bill, Congress turned to cryptocurrency. The bill imposes new reporting requirements on cryptocurrency brokers, intended reduce tax evasion. However, the proposed reporting requirements are too broad, and would hobble the development of cryptocurrency services. These reporting requirements could also hurt efforts to provide alternatives to mainstream social media platforms. Many of the most promising alternatives rely on cryptocurrency to coordinate hosting speech across decentralized networks. Imposing reporting requirements on user‐​operated nodes within these networks would make their deployment difficult.

The provision would dramatically expand the definition of a cryptocurrency broker, imposing reporting requirements on a wide range of cryptocurrency intermediaries. Any person “responsible for regularly providing any service effectuating transfers of digital assets on behalf of another person” would be deemed a broker by the proposed bill. Covered brokers would be required to file tax information reports detailing cryptocurrency transfers, even those not involving USD.

While far from the services of a broker, cryptocurrency developers, miners, and wallet operators all regularly “effectuate transfers of digital assets.” Imposing expansive reporting requirements on these actors would raise comparatively little revenue. The Wall Street Journal reports that the broader definition of broker would be responsible for only $5 billion of the $28 billion in revenue that the Joint Committee on Taxation expects the broker reporting requirements to raise. The proposal would also make developing services utilizing cryptocurrencies more difficult and expensive.

Decentralized hosting networks such as the Interplanetary File System (IPFS) use cryptocurrencies to pay users who provide storage space to the network. IPFS hosts files in exchange for filecoins, which are distributed to users who offer the network storage space on their computers. The protocol hosts speech across a distributed array of servers, it isn’t controlled by any central authority. However, if each transfer of filecoins in this process makes the facilitator a broker, taking part in the IPFS network will become administratively burdensome. While intended as a revenue generation provision, expanding the definition of a cryptocurrency broker will make it more difficult to compete with “big tech.”

Thankfully, Senators Ron Wyden (D-OR), Cynthia Lummis (R-WY), and Pat Toomey (R-PA) have proposed an amendment that would limit the definition of brokers to actual brokers, such as Robinhood or Coinbase. Their amendment specifically excludes “developing digital assets,” providing cryptocurrency wallets, and “validating distributed ledger transactions,” (mining) from the broker definition. This remedy received an initial endorsement from Sen. Rob Portman (R-OH), author of the initial cryptocurrency reporting provision.

The Wyden/​Lummis/​Toomey amendment was set to receive a vote on Thursday, but its consideration was interrupted by the introduction of a comparatively more limited amendment by Senators Mark Warner (D-VA,) Kyrsten Sinema (D-AZ), and a quickly shifting Rob Portman. This alternative amendment would only protect some wallet providers and miners using proof‐​of‐​work validation schemes, which are more energy intensive than proof‐​of‐​stake systems. Proof‐​of‐​work systems requires computers to solve complicated math problems to verify transactions, proof‐​of‐​stake merely needs users willing to provide collateral. The Ethereum blockchain’s environmentally friendly move to a proof‐​of‐​stake system would be punished by the Warner amendment. The Amendment would, without any justification, privilege proof‐​of‐​work‐​over proof‐​of‐​stake in American law.

Both amendments are now likely to receive a vote on Saturday. The outcome could have a dramatic effect on the viability blockchain‐​based alternatives to established social media platforms. Comparing the two amendments, Sen. Lummis writes “Our amendment protects miners as well as hardware and software developers. The other does not. The choice is clear.”

Related Tags
Internet Governance and Regulation
August 6, 2021 1:15PM

Infrastructure Bill Made Simple

By Chris Edwards

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The Congressional Budget Office (CBO) released an analysis of the infrastructure bill that is winding its way through Capitol Hill. The Committee for a Responsible Federal Budget (CRFB) summarizes the CBO report here. CBO found that the bill would increase federal deficits, but the more important problem is that the spending itself is harmful and unneeded.

CRFB finds that the infrastructure bill would increase gross outlays by $517 billion over the coming decade, based on the CBO data. The CRFB and CBO examine the spending by activity, such as highways, transit, and broadband. But I’ve reorganized the spending into three buckets as follows:

Federal. The bill would increase spending about $101 billion on federal infrastructure, such as Amtrak and water facilities. I have argued that these and other federal assets should be privatized and self‐​funded.

State‐​Local. The bill would increase spending about $287 billion on state and local infrastructure, including highways, transit, airports, and local water systems. But the states can and should fund their own infrastructure, especially now that they are enjoying a gusher of revenues.

Private. The bill would increase spending about $129 billion on subsidies for businesses and individuals, including for electricity, broadband, EV charging, and renewable energy. This spending would intensify corporate lobbying and political corruption in Washington.

America would have more efficient investment and operation of infrastructure if the federal government ended subsidies to the states and private sector and all three levels of government privatized assets that could be supported by user charges.

The chart summarizes the proposed new infrastructure spending. The categorization into the three buckets is a rough first take.

s

Related Tags
Tax and Budget Policy, Urban Growth and Transportation
August 6, 2021 1:13PM

The Police Can’t Arrest You for Mocking Them

By Thomas A. Berry

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Anthony Novak of Parma, Ohio, created a Facebook page parodying his local police department. The page superficially resembled the department’s official Facebook page, but its content was far too outlandish to be easily mistaken for a police department’s communications. Satirical posts promoted free abortions for teens out of a police van, a contest featuring removal from the sex offender registry as the grand prize, and other Onion‐​style “fake news.”

The Facebook page was only online for twelve hours, but on the basis of nothing more than Novak’s Facebook posts, the Parma Police obtained warrants to arrest Novak and search his apartment. Novak was charged under a statute criminalizing disrupting police operations, even though the only effect that Novak’s Facebook page had on the police department consisted of a few citizens’ phone calls to the police station that took up a total of twelve minutes of their time.

The case went to trial and a jury acquitted Novak. Novak then sued the city and police for retaliating against First Amendment protected speech. After an appeal and remand on preliminary issues, the district court dismissed Novak’s case, holding that the police had probable cause to arrest him even if his Facebook parody was protected speech under the First Amendment.

Novak has again appealed to the Sixth Circuit, and Cato has joined the American Civil Liberties Union and ACLU Ohio on a brief supporting Novak. In the brief, we explain that the First Amendment protects Americans’ right to criticize their government, and that includes not only sober and straightforward speech but also mockery, satire, and parody. The government officials who are the targets of this speech are not always pleased, but the First Amendment protects speakers against government retaliation. If police could arrest citizens based on nothing more than their constitutionally protected expression, the First Amendment’s protections would be severely undermined.

Because parody and criticism of police officers had already been held to be protected speech well before Novak’s arrest, it should have been clear to any reasonable officer that Novak’s parody page could not establish probable cause for his arrest. We urge the Sixth Circuit to reverse the district court and make clear that citizens have a right to mock and parody the government without fear of retaliation.

Related Tags
Constitutional Law, Free Speech and Civil Liberties
August 5, 2021 4:48PM

Momentum Is Building to Restrain Risky Arms Sales

By A. Trevor Thrall

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Media reports recently revealed that President Biden will revise the nation’s Conventional Arms Transfer Policy, with an eye to elevating concerns for the human rights implications of arms exports. Such a move is long overdue, as we have argued in the Arms Sales Risk Index reports over the past several years. Over the past twenty years, the United States has sold billions of dollars worth of weapons to governments with horrendous human rights records. Tragically, some of those weapons have been used to kill civilians and political opponents.

Congress has also been focused on the arms sales and human rights nexus. In a recent piece up at Defense One, Jordan Cohen and I analyze the National Security Powers Act, sponsored by Chris Murphy (D-CT), Mike Lee (R-UT), and Bernie Sanders (I-VT). This legislation would strengthen Congress’ role in the arms sales process by requiring the White House to get congressional approval for major arms sales. The Stop Arming Human Rights Abusers Act, introduced recently by Rep. Omar (D-MN), would provide another useful mechanism, automatically prohibiting sales to any government guilty of gross violations of international human rights or humanitarian law.

These are positive steps, but one should remain skeptical about their likely impact. First, though Biden might be willing to sign them into law, it is far from certain that the two bills will make it that far given other congressional priorities and likely Republican opposition. Second, arms sales have long been a favorite foreign policy tool of presidents. During Biden’s time in office, the United States has continued to sell weapons to pretty much whoever wants them. Thus, there is good reason to suspect that any revisions to the Conventional Arms Transfer Policy will be more rhetoric than real.

Related Tags
Defense and Foreign Policy
August 5, 2021 2:32PM

Infrastructure Bill: Needless Expansion in Subsidies

By Chris Edwards

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Congress is considering a $550 billion increase in federal infrastructure subsidies. The subsidies and related new regulations will be damaging for many reasons, as Randal O’Toole and I have noted.

If Congress wanted to raise highway and transit spending, it could have done so with a one‐​page bill, but the bill being considered is 2,702 pages. What is in all those pages? Likely, many new mandates and red tape that will reduce the freedom and autonomy of states, businesses, and individuals. Infrastructure bill supporter Senator Rob Portman (R-OH) claims that the bill will speed project permitting, but any such benefit will be likely outweighed by the costs of regulations attached to new subsidies for highways, the electric grid, and other facilities.

Perhaps the bill’s supporters think that more regulations are an unavoidable cost to gain the benefits of new spending. But most of the new spending will be for infrastructure owned by state and local governments. Those governments can fund their infrastructure with their own taxes and user charges without any new top‐​down rules from Washington. Senator Portman claims that the new federal spending will boost productivity and growth. But if new spending on, say, highways in Ohio would have such good effects, why doesn’t the Ohio legislature do it?

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Related Tags
Tax and Budget Policy, State and Local Fiscal Policy, Urban Growth and Transportation
August 5, 2021 12:56PM

FAQ on Biden’s Extension of the Eviction Moratorium

By William Yeatman

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How did the eviction moratorium come about? In early 2020, as part of the first major pandemic stimulus, Congress passed a 120-day eviction moratorium for rental properties receiving federal assistance. After the moratorium expired, President Trump announced that “unlike the Congress, I cannot sit idly and refuse to assist vulnerable Americans in need.” So he ordered his administration to “do all that it can to help vulnerable populations stay in their homes.” Accordingly, the Center for Disease Control (CDC) promulgated an eviction moratorium more restrictive than the one enacted by Congress. Whereas Congress’s moratorium applied only to certain federally backed rental properties, the CDC’s applied to all rental properties nationwide.

What’s the economic fallout from the eviction moratorium? The CDC’s eviction moratorium shifts the pandemic’s financial burdens from the nation’s 30 to 40 million renters to its 10 to 11 million landlords— most of whom are individuals and small businesses. In litigation documents, landlord associations claim they’re losing between $13.8 and $19 billion each month in unpaid rent. In late May, the Urban Institute estimated the amount of back rent then-owed to be about $50 billion.

What's the legal basis for the eviction moratorium? As a legal basis or the moratorium, the CDC adopted an expansive interpretation of a vague provision in a rarely used statute from 1944, the Public Health Service Act. Specifically, Section 361 authorizes the agency to mitigate the spread of disease by requiring “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” (emphasis added). On its face, Section 361 plainly pertains to specific restrictions on property, such as inspections, fumigation, and the like. But the Trump administration zeroed in on the phrase “other measures,” which, according to the CDC, confers limitless regulatory power over the housing market, so long as the agency pays lip service to fighting the pandemic.

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Related Tags
Constitution and Law, Constitutional Law, Politics and Society, Government and Politics

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