[cormacrelf]

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”.

[jrockway]

The irritating part of encryption is that it's hard to determine what the underlying data is. With one key, it could be a word document that says "paying my taxes is the one joy i have in life" and with another, it could be the most horrifying image you can imagine.

I understand the government's interests in this particular issue, people that abuse children are the biggest pieces of shit that I can imagine, but unfortunately math is a pain in the ass and their laws are not possible to administer.

If you think someone is abusing children, you can always send a cop to their house and have them check. That is well within the rights of the government, and I'd even go so far as to say I support that right.

[cormacrelf]

Not difficult, just limited in power. Any time you find decrypted material on a device, figure out where it was stored, and send that company a penalty notice for failing to report it.

[jrockway]

As far as I know, that's not a federal law. I can walk past someone violating every human right and constitutional amendment in broad daylight and it's my right to tell nobody about it ever. Apple has the same right, it seems. Amend the Constitution if you don't like it.

[cormacrelf]

Uh, I wasn't saying it was. I was sketching out how you would implement such a law without difficulty. The "you" is the FBI. This is all a hypothetical, hence my use of the subjunctive throughout.

[kelnos]

I don't believe that's a constitutional right at all.

Consider "mandatory reporters". People like schoolteachers are legally required to report certain things like parental abuse or neglect of their students. If the government wanted to write a law that said you are required to report a crime if you witness one, I'm not sure that would be unconstitutional.

[Eisenstein]

I don't think they are legally required to do anything. Them having a license to work in their field is dependent on it, though.

As an aside, if you are legally required to report something you have seen, and do not, then you are violating the law, which means legally requiring you to report yourself is unconstitutional under the 5th amendment, so we enter into paradox territory...

[jrockway]

Yeah, I think that if someone lost their medical license for, say, endorsing a particular candidate up for election, that would be an EZ 9-0 supreme court victory for them.

As they said on slashdot 100 years ago, child porn is the root password to the constitution. Configure sshd to only accept keys!

[scott_w]

I can’t speak for the USA but in the UK, professions are required to act in certain cases where a layperson isn’t.

For example, a layperson can ignore someone having a heart attack but a doctor is required to help (even if it’s just calling for an ambulance).