>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…
>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.]
IANAL and all.