First, I don’t think a civil suit by people caught by the hash-checking would be the remedy any of them would seek. More than likely, they would be trying to convince a court that Apple, acting on behalf of the government, violated their rights by searching their device without a warrant. The remedy they’d likely be seeking would be to have the “fruit of the poisonous tree” (Apple pun intended) excluded in their criminal prosecution.
I guess maybe they could file a civil suit afterwards but I’m having a little trouble imagining the assemblage of a class around which to file a class action since (allegedly) this hash matching system should “catch” innocent people extremely rarely.
And what duty does Apple owe to users? The duty not to inform the police that they might be committing a crime? This seems pretty shaky.
The problem with all this is the liability they’d be seeking to impose on Apple is specifically relieved by 18 U.S.C. 2259 (barring recklessness, malice, or a disconnect between apples action and 2258A).
The other thing is that “forwarding the results on[ ]to the government for the purposes of law enforcement” explicitly, under Miller, is not government action. It’s the law enforcement function itself that would be interpreted as state action.
> How is it different to charge for a subscription to an icloud folder vs a paid substack?
I think the answer is that liability for failure to moderate substack might be relieved under section 230 of the CDA[0], while liability for the act of moderating Apple’s cloud by scanning hashes and reporting hits to the FBI would be relieved under 18 U.S.C. 2259.
[0]: assuming, of course, su stack didn’t/shouldn’t have known about the offense. Once they know they have a 2259A duty to report.
Sadly, I think you will find we don’t have any constitutionally protected privacy rights. We used to have some, and that’s where the protection for abortion rights came from, but the current court (at least in my interpretation) believes that interpreting the Constitution that way was a huge mistake. We still have some remnant of these rights, but as they come up for review by the Roberts court, they will be abolished one by one until they run out of time or we run out of patience with them and enshrine these rights in statutes.
But I think when you say privacy rights you mean “fourth amendment rights against unreasonable search and seizure” and insofar as that’s the case, I agree with you: Apple has a lot more power to violate these rights than most people think, because they have smart lawyers who have advised them exactly how much leeway they have before they become “state actors”; their software stops just shy of that point.
I think one thing that’s important to remember is that Apple has a lot of power but only because we give it to them. All you have to do to avoid this hash scanning nonsense forever is just throw away your iPhone. (The problem is, at least for me, I’m not ready to do that).
a private company can always publish terms that grant them on-device or in-cloud access to whatever data they are manipulating or storing or whatever. One could argue that clicking ok on "we can manipulate your data" is legal umbrage for "running a hash search and forwarding material to fbi".
Is "post fib.gov" the new "Sunset Filter"? and can they run that filter automatically?