On his Real Time show on HBO recently, in his “New Rules” segment, political pundit Bill Maher raised the specter of a new threat to privacy, noting that Apple Computer has announced it will begin scanning iPhones and other Apple devices for child pornography, which it will then presumably report to law enforcement. Maher suggested that this policy violates legal privacy protections, especially the Fourth Amendment. As he spoke, a graphic behind him helpfully displayed the Fourth Amendment as if written on 18th century parchment.
There was one small flaw in Maher’s editorial: Apple is a private company, and is doing this not at the behest of the government, but on its own initiative. And while the Fourth Amendment protects Americans against “unreasonable searches and seizures” of their “persons, houses, papers, and effects,” a long series of Supreme Court decisions make it clear that a search done by a private party — whether legal or illegal — is not subject to the Fourth Amendment.
Thus, if the police started going through the drawers in your living room, without your permission and without a search warrant, any evidence of criminal activity would almost certainly be inadmissible in court. But if the same search were done by a neighbor while you’re in the bathroom or the kitchen, they can hand it over to the police and it’s admissible.
This principle is colorfully known as the “silver platter doctrine,” meaning that the police can use the fruits of a privately-conducted search as long as it’s handed to them “on a silver platter.” Of course, you could sue your neighbor for damages — but lawsuits are notoriously hard to file while you’re in prison.
In a story in the Washington Post published around the same time as Maher’s editorial, the Post noted that similar software has been used for years by, among others, Facebook. But those programs only check photos uploaded to their sites — whereas, in the words of the Post, “[Apple’s] new software will perform scans on its users’ devices without their knowledge or explicit consent, and potentially put innocent users in legal jeopardy.”
All of this became particularly relevant with the news this week that Spencer Elden has filed a lawsuit against the estate of the late Kurt Cobain and several members of Cobain’s band Nirvana about the cover photo of Elden on Nirvana’s 1991 album “Nevermind.” Elden was photographed fully submerged in a swimming pool, wearing the clothes he had been born in four months earlier (i.e., none), and his genitalia are partly visible in the photo. He is flailing his arms slightly, as though swimming, and the photo was altered to add a dollar bill on a fishing hook in the water just ahead of him.
The album cover became world-famous, and for years Elden participated in recreations of the photo (albeit partially clothed) on various anniversaries of the album’s release. But now his lawsuit complains that it constitutes child pornography, and notes that neither his parents (nor, of course, he) ever signed a release for the use of the photo.
Elden’s lawsuit does raise questions about Apple’s decision to become the kiddie porn kops. While Apple has insisted that the chances that a photo on someone’s phone could be improperly flagged as an illegal image are “a trillion to one,” the fact that someone who once embraced the use of his own photo now decries it as child pornography demonstrates how slippery these terms can be. Many news stories about Elden’s lawsuit, for example, note that non-sexualized images of nude children, especially infants, are ordinarily not considered child pornography.
Organizations like the Electronic Frontier Foundation have also noted that this could just be the first step in Apple and other cell phone companies monitoring all your phone’s content — again, without your knowledge or consent. And they have the backing of the courts, including the Supreme Court, which have not only exempted private companies from the Fourth Amendment, but also upheld the use of broad contractual language that basically give corporations whatever rights they want to assert over consumers.
And what is your “remedy” if you’re a consumer who is unhappy about this? Just give up using your phone!
The Washington Post story also noted something particularly ironic about Apple’s new policy. In 2015, Apple was asked by law enforcement to help unlock an iPhone belonging to one of the two people who murdered 14 of their co-workers in San Bernardino. Apple refused, citing “moral” objections to invading the privacy of its phone users (even though this particular user was already dead).
What a difference a few years makes.