5 ms·

The 5th amendment protects evidence inside the brain of the accused. As devices becomes more and more an extension of the brain, the more I think we'll need to

by dplgk 11y ago

The 5th amendment protects evidence inside the brain of the accused. As devices becomes more and more an extension of the brain, the more I think we'll need to adjust the rule of the 5th amendment to cover things outside of the brain.

radiorental 11y ago
I'm having trouble correlating the intent of the law with your suggestion "[No person]…shall be compelled in any criminal case to be a witness against himself" Person/Compelled is key here, not the facts of the case or where they reside.
- dplgk 11y ago
  So when technology arises that can scan a person's brain for memories and thoughts, that will be evidence admissible in court?
  - radiorental 11y ago
    If the person agrees to the scan. I'm not sure you fully understand the law.
BWStearns 11y ago
Think about what we want as a society though. If you did commit a crime, we want to convict you. The reason the 5th protects you from compelled self-incrimination is to prevent unjust interrogation and investigation techniques from the cops[0], not to make the overall likelihood of conviction lower, although it incidentally has this effect. From a policy standpoint the ideal world would be one where all criminals are convicted and no innocents are convicted. In our system we try [see 0 again] to err on the side of letting criminals go rather than convicting innocents. One of the interesting things about the new normal of everything being recorded always and everywhere is how this might change our laws. Laws are supposed to accomplish something, speeding law is supposed to improve road safety for example. If automatic enforcement instead imposes massive taxes on everyone while not improving road safety, society (should) modify the law since it didn't get them to where they wanted to go. Sorry, long winded way of saying, our electronic artifacts aren't really all that different than letters. If I wrote an email to my friend demonstrating premeditation in murdering your puppy, you and everyone else have an interest in that email being valid evidence. That's a wholly separate discussion from the encryption debate. I definitely you're right that we need to think about it but I just wanted to play devils advocate here for why we might want to think twice. [0] Yes, shit still happens, but the system is SUPPOSED to limit these abuses.
- meric 11y ago
  Email is communication between two people, and is a complete different matter to if a person wrote in their iOS Notes "Feb 17, I've been fantasising eating BWStearns dog. He looks yum. Should I or should I not?". And if you dog really got murdered, that note will implicate whoever wrote it, even if they didn't do it! Thinking about performing a criminal act is not a crime. Conspiring to do it is.
  - BWStearns 11y ago
    But let's say that I/you killed your/my dog is not in question. The killer's notes on dog killing are relevant to the case. Your iOS notes are no closer to being part of your brain as a dead tree journal is. Other than (as someone else brought up) a hypothetical brain scanning technology that claims to reveal thoughts[0] I can't think of a category of digital evidence that is so substantively different from analogue predecessors as to warrant folding the whole category into some protected class of information. [0] I do think that precedent regarding the inadmissibility of the polygraph will probably protect us on that front for at least a while after someone pulls it off.
    - meric 11y ago
      If there's no question someone killed your dog, then you don't need to read what's in the phone, do you? There's a point to your analogy.
      - BWStearns 11y ago
        Oh yeah, sorry. Distinguishing between premeditation or not in order to charge and sentence properly. Without premeditation there may be no crime at all. I did not spell that out well and only touched directly on it in the first post. The point is that it's evidence and not really different than if I wrote it in my dead tree diary. I'm hobbled a bit here because I'm trying to make the very unsexy point that most electronic things are not unique because they're electronic (kinda like how "doing it on a computer" shouldn't be sufficiently novel to justify patent protection). The extent to which "devices becomes more and more an extension of the brain" is at the moment not far enough to justify unique treatment to your iOS notes.
ank_the_elder 11y ago
Wouldn't that also apply to, say, a small paper notebook that the accused carries with him/her? Surely there's been plenty of people who used such paper notebooks as an "extension of the brain"...
kordless 11y ago
Let's go off the deep end, shall we, and speculate? Consciousness (the process that manages your evidence) is already encrypted. It's encrypted by quantum events occurring in the brain. The going conjecture is that microtubules in brain cells provide a latticework to maintain and force collapse of quantum states which somehow drive neuron activity. Regardless if you believe that or not, it is now known that brains are storing information in DNA and that DNA processes appear to be governed by quantum events. It's a reasonably palatable conjecture which may be testable in the next few years, and it's speculation for the hell of it here anyway. Having essentially hardware equipped encryption, you brain ends up being completely unique and probably uncopyable in total from a quantum level process, given it lives half here and, ahem, half there. Any connection to it by a non-quantum devices in reality, especially high speed ones, are probably a bad idea as it increases the exposure surface area beyond what nature has likely already secured. Given your brain is reprogrammable, it's probably not a good idea to hook up weird shit to it until we know more about how the universe and it work. That includes any shit a government asks you to hook up to yourself now and again when you pass through its borders. The 5th amendment being out of date is the least of our problems. Our government in the US, in its valiant attempt to protect us, has somehow decided it needs to keep increasing the efficiency of protection in response to what appear to be escalating abilities with the bad guys. The problem is, of course, is that eliminating all suffering is completely impossible, and that the idea of what is a decent amount of suffering to endure is constantly shifting as it's being squabbled over by people infected with angry cooperative memes...memes which have forgotten that this country was founded on freedom to do whatever you wanted, when you wanted to do it, as long as you weren't shitting on your neighbor when you did it. Frankly, I'm more concerned about cloud services nowadays than phones. Seems as if a phone is just a viewport to the cloud and with so many services and apps accessing my phone's data (seems like every day another apps asks for more data) that the exposure area of my phone's cloud footprint is probably easier to hack than the phone itself.
jasonlotito 11y ago
Regardless, this wouldn't apply in this case however. The device wasn't the shooter's to begin with. He didn't own it. His employer did. They've already given permission to access the device.

by dplgk 11y ago

radiorental 11y ago

I'm having trouble correlating the intent of the law with your suggestion "[No person]…shall be compelled in any criminal case to be a witness against himself" Person/Compelled is key here, not the facts of the case or where they reside.

dplgk 11y ago
So when technology arises that can scan a person's brain for memories and thoughts, that will be evidence admissible in court?
- radiorental 11y ago
  If the person agrees to the scan. I'm not sure you fully understand the law.

BWStearns 11y ago

Think about what we want as a society though. If you did commit a crime, we want to convict you. The reason the 5th protects you from compelled self-incrimination is to prevent unjust interrogation and investigation techniques from the cops[0], not to make the overall likelihood of conviction lower, although it incidentally has this effect. From a policy standpoint the ideal world would be one where all criminals are convicted and no innocents are convicted. In our system we try [see 0 again] to err on the side of letting criminals go rather than convicting innocents. One of the interesting things about the new normal of everything being recorded always and everywhere is how this might change our laws. Laws are supposed to accomplish something, speeding law is supposed to improve road safety for example. If automatic enforcement instead imposes massive taxes on everyone while not improving road safety, society (should) modify the law since it didn't get them to where they wanted to go. Sorry, long winded way of saying, our electronic artifacts aren't really all that different than letters. If I wrote an email to my friend demonstrating premeditation in murdering your puppy, you and everyone else have an interest in that email being valid evidence. That's a wholly separate discussion from the encryption debate. I definitely you're right that we need to think about it but I just wanted to play devils advocate here for why we might want to think twice. [0] Yes, shit still happens, but the system is SUPPOSED to limit these abuses.

meric 11y ago
Email is communication between two people, and is a complete different matter to if a person wrote in their iOS Notes "Feb 17, I've been fantasising eating BWStearns dog. He looks yum. Should I or should I not?". And if you dog really got murdered, that note will implicate whoever wrote it, even if they didn't do it! Thinking about performing a criminal act is not a crime. Conspiring to do it is.
- BWStearns 11y ago
  But let's say that I/you killed your/my dog is not in question. The killer's notes on dog killing are relevant to the case. Your iOS notes are no closer to being part of your brain as a dead tree journal is. Other than (as someone else brought up) a hypothetical brain scanning technology that claims to reveal thoughts[0] I can't think of a category of digital evidence that is so substantively different from analogue predecessors as to warrant folding the whole category into some protected class of information. [0] I do think that precedent regarding the inadmissibility of the polygraph will probably protect us on that front for at least a while after someone pulls it off.
  - meric 11y ago
    If there's no question someone killed your dog, then you don't need to read what's in the phone, do you? There's a point to your analogy.
    - BWStearns 11y ago
      Oh yeah, sorry. Distinguishing between premeditation or not in order to charge and sentence properly. Without premeditation there may be no crime at all. I did not spell that out well and only touched directly on it in the first post. The point is that it's evidence and not really different than if I wrote it in my dead tree diary. I'm hobbled a bit here because I'm trying to make the very unsexy point that most electronic things are not unique because they're electronic (kinda like how "doing it on a computer" shouldn't be sufficiently novel to justify patent protection). The extent to which "devices becomes more and more an extension of the brain" is at the moment not far enough to justify unique treatment to your iOS notes.

ank_the_elder 11y ago

Wouldn't that also apply to, say, a small paper notebook that the accused carries with him/her? Surely there's been plenty of people who used such paper notebooks as an "extension of the brain"...

kordless 11y ago

Let's go off the deep end, shall we, and speculate? Consciousness (the process that manages your evidence) is already encrypted. It's encrypted by quantum events occurring in the brain. The going conjecture is that microtubules in brain cells provide a latticework to maintain and force collapse of quantum states which somehow drive neuron activity. Regardless if you believe that or not, it is now known that brains are storing information in DNA and that DNA processes appear to be governed by quantum events. It's a reasonably palatable conjecture which may be testable in the next few years, and it's speculation for the hell of it here anyway. Having essentially hardware equipped encryption, you brain ends up being completely unique and probably uncopyable in total from a quantum level process, given it lives half here and, ahem, half there. Any connection to it by a non-quantum devices in reality, especially high speed ones, are probably a bad idea as it increases the exposure surface area beyond what nature has likely already secured. Given your brain is reprogrammable, it's probably not a good idea to hook up weird shit to it until we know more about how the universe and it work. That includes any shit a government asks you to hook up to yourself now and again when you pass through its borders. The 5th amendment being out of date is the least of our problems. Our government in the US, in its valiant attempt to protect us, has somehow decided it needs to keep increasing the efficiency of protection in response to what appear to be escalating abilities with the bad guys. The problem is, of course, is that eliminating all suffering is completely impossible, and that the idea of what is a decent amount of suffering to endure is constantly shifting as it's being squabbled over by people infected with angry cooperative memes...memes which have forgotten that this country was founded on freedom to do whatever you wanted, when you wanted to do it, as long as you weren't shitting on your neighbor when you did it. Frankly, I'm more concerned about cloud services nowadays than phones. Seems as if a phone is just a viewport to the cloud and with so many services and apps accessing my phone's data (seems like every day another apps asks for more data) that the exposure area of my phone's cloud footprint is probably easier to hack than the phone itself.

jasonlotito 11y ago

Regardless, this wouldn't apply in this case however. The device wasn't the shooter's to begin with. He didn't own it. His employer did. They've already given permission to access the device.