Mike Masnick at Techdirt, on West Virginia’s demand that Apple scan for CSAM in iCloud:

Here is the part McCuskey’s complaint does not engage with: the moment a court orders Apple to conduct those scans, any CSAM those scans find becomes evidence obtained through a warrantless government search—and under well-established Fourth Amendment doctrine, that evidence gets excluded. Defense attorneys will move to suppress it. They will win. And without the CSAM itself as evidence, convictions become nearly impossible. […]

Read that again. If West Virginia wins—if an actual court orders Apple to start scanning iCloud for CSAM—then every image flagged by those mandated scans becomes evidence obtained through a warrantless government search conducted without probable cause. The Fourth Amendment’s exclusionary rule means defense attorneys get to walk into court and demand that evidence be thrown out. And they’ll win that motion. It’s not even a particularly hard case to make.

Masnick also notes that the lawsuit’s very basis is dangerously flawed:

Count I—strict liability for design defect—alleges that by choosing to implement end-to-end encryption and not build surveillance capabilities into iCloud, Apple has defectively designed its product.

Think through what that means if it succeeds. Any company offering customers strong encryption becomes potentially liable for design defects unless it simultaneously builds government-accessible backdoors. Signal is a defective product. ProtonMail is a defective product. Any messaging app that doesn’t scan your conversations for the government is a defective product.

From the out-of-context executive quote to the “defective by design” conceit, this lawsuit never smelled right. Now I know why.