> Nearly. If the government is requiring this then it becomes improper.
Even if the government does not require it, if it acquiesces, and the action is the exclusive province of the government, it’s state action (i.e., improper).
But yes, if they require it, it’s state action too. 18 U.S.C. 2258A allows but does not require scanning hashes, and scanning hashes is not the exclusive realm of the state, so it’s fair game.
The idea that the FBI is somehow twisting Apple’s arm doesn’t really ring true to me. The FBI has lawyers, they understand state action doctrine, and they know if they were coercing Apple, one leak could ruin a lot of prosecutions. I guess I couldn’t say it’s impossible though.
I’m kind of interested in this idea elsewhere in the thread that executing this hash-matching code on your device as opposed to in the cloud is somehow more deserving of 4A protection. One part of me says a textual originality SCOTUS is pretty unlikely to read “mobile handset” as “house” but who really knows what those characters would say these days.
These days, your handset is de facto your personal id (via eSim) and contains your personal digital possessions. A person taking over your handset could easily impersonate you and there's a good chance they could access your medical and banking records.
I am far from being a legal expert, but I see there's a 9-0 ruling in Riley v. California that a smartphone has 4A protections.
Your point is valid and I think it makes me change my argument somewhat.
On the other hand, Riley (and Wurie , from the companion case) were arrested, though, prior to their phones being searched without a warrant.
Here, though, there is no arrest and no government search, just a software provider selling you a phone running software that does something that dozens amount to state action.
With the benefit of your post, I think I can say that what I meant was that I doubt today’s Supreme Court is going to tell us that Apple can sell a service in the cloud that scans hashes, but they can’t sell a phone running software that does the same thing in your phone in the logic of “your phone is your house.”
Put another way, if you invite me into your house (like you welcome Apple software in to your phone) and I want to search your house, that’s not a violation of the Fourth Amendment (it’s just very rude and maybe trespassing).
>just a software provider selling you a phone running software that does something that dozens amount to state action.
>Put another way, if you invite me into your house... and I want to search your house
Say Apple did implement client-side scanning. I think you're right here that Apple's would-be actions would not amount to state action. However, we would be allowing a broad-based search of users' personal files whose results may be auto-forwarded to government agencies based on a private actor's whims.
Say there was a private militia searching people's homes, and forwarding anything too suspicious to the police. Say that the only way to buy a house (in Cupertino, or in the entire country) would be signing a deal with an HOA to allow the militia in. Or less than that, that not signing a deal would merely be arduous and subject you to penalties. At which point of annoyance you'd be de facto cancelling 4A?
So there needs to be some sort of a line, and it could be debated where to put it. In this case it seems that multiple separate people have come around to separating the local device from the cloud as a line, and this does have the advantage of being a clear line.
> they can’t sell a phone running software that does the same thing in your phone
Note that this equivalence also works against allowing this search. If Apple (and others) have a widely-accepted equivalent alternative there isn't a need to allow running the scan locally. [EDIT: They could have chosen a different method, like scanning all the files. Or at least implementing while/after doing E2E. Doing it the way they did made the approach appear like crossing a line without any benefit to anyone but Apple, leading to increased backlash.]
YMNBALBYTLY: you may not be a lawyer but you’re thinking like one.
I want to again make clear that I think this kind of scanning sucks. I line the idea of a line. I like the idea of the line being that I decide which software functionality runs in my device. Your hypo about the militia is a great one. I would not live in a country like that, but I have an iPhone…
Even if the government does not require it, if it acquiesces, and the action is the exclusive province of the government, it’s state action (i.e., improper).
But yes, if they require it, it’s state action too. 18 U.S.C. 2258A allows but does not require scanning hashes, and scanning hashes is not the exclusive realm of the state, so it’s fair game.
The idea that the FBI is somehow twisting Apple’s arm doesn’t really ring true to me. The FBI has lawyers, they understand state action doctrine, and they know if they were coercing Apple, one leak could ruin a lot of prosecutions. I guess I couldn’t say it’s impossible though.
I’m kind of interested in this idea elsewhere in the thread that executing this hash-matching code on your device as opposed to in the cloud is somehow more deserving of 4A protection. One part of me says a textual originality SCOTUS is pretty unlikely to read “mobile handset” as “house” but who really knows what those characters would say these days.