> "in the absence of a law that compels us to write software, which is unconstitutional btw"
This isn't really settled. Writing software is not always constitutionally protected speech, and Apple being compelled to write software would probably not constitute a violation of the First Amendment. Federal wiretap law can compel companies to make it easy for the government to get data via a warrant (which necessarily entails writing code to produce that data) and has been upheld in the past. Also companies are often liable for the code they write. Both of those are examples of when code is not considered speech.
The government compelling apple to cause peoples phones to search themselves (with no probable cause that the suspects of the searches committed a crime) would be facially unconstitutional under the fourth amendment, not the first.
Compelled speech would be an interesting argument against compelled writing of software, but is definitely the weaker one here.
Edit: Oh, I see in one of the other replies GP raised the first amendment. Just take this as a reply to the idea in general...
The government need not care how Apple complies with the law, which could merely state that cloud storage providers are liable for illegal material stored there by their customers, regardless of the cloud provider's knowledge. This would be catastrophic to cloud storage in general, of course, but given that strict liability is a thing, I don't see how such a law could be ruled unconstitutional.
Trying to workaround the 4th like that might manage to make the law facially constitutional, but I'd be surprised if it made the searches conducted as a result of it valid.
By my understanding you have to avoid a "warrantless search by a government agent" to avoid violating the constitution. The "warrantless search" part is really beyond dispute, so it's the "government agent" part that is in question. In general "government agent" is a term of art that means "acting at the behest of the government", but I don't know exactly where the boundary lies. I'd be fairly surprised if any law that allowed for accidentally storing CSAM after a failed search, but didn't allow for accidentally storing CSAM content without a search, didn't make the party doing the search a government agent. If you make the former illegal, cloud storage at all (scanning or not) is an impossible business to be in.
You already have the FBI partnering with computer repair shops to do dragnet searches of customer's hard drives for CSAM when they bring their computers in for repairs.
Section I of the Thirteenth Amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
There is a difference between regulations and compelled action. The government make your ability to do X conditional on you also doing Y, but it generally can't just make you do Y.
The exceptions are actually quite few outside of conscription, eminent domain sales, wartime powers.
That sounds right to me. The government has tremendous powers. Forcing people to write computer programs isn't one of them. (They could have saved a lot of money on healthcare.gov if they had that power!)
I agree with that. Especially in recent years, it's nearly impossible to tell what is and isn't settled case law.
It would be an expensive battle for the taxpayers to compel Apple to write software, I think. They've tried and failed. It will just be more expensive next time.
> Federal wiretap law can compel companies to make it easy for the government to get data via a warrant
Not the same thing. The wiretap law cannot compel any company; only licensed telcos. These companies, in exchange for license to be able to provide such service to general public get some advantages, but have to agree to a set of limitations.
I have my doubts that Apple would be a holder of such license that would make it a subject to such regulations.
This isn't really settled. Writing software is not always constitutionally protected speech, and Apple being compelled to write software would probably not constitute a violation of the First Amendment. Federal wiretap law can compel companies to make it easy for the government to get data via a warrant (which necessarily entails writing code to produce that data) and has been upheld in the past. Also companies are often liable for the code they write. Both of those are examples of when code is not considered speech.