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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-incriminati

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.
Zigurd 11y ago
>If you did commit a crime, we want to convict you. That's a massive assumption in an age when there is a law, somewhere, that make you and me criminals. It's a small ask for laws that are impractical to enforce remain impractical.
Lawtonfogle 11y ago
>If you did commit a crime, we want to convict you. There are too many bad laws out there. If I meet a bad guy, I can defend myself. If I cross the government, I'm doomed. I much rather support things that increase my likelihood of meeting a bad guy that I can defend myself against while reducing my ability to cross the government and being doomed without recourse. This is the whole reason I justify that it is better to let 99 guilty go free than to jail 1 innocent (assuming the government doesn't also take away my ability to defend myself, which it does seem intent on doing).
- BWStearns 11y ago
  It is unjust to jail Rick for jay walking and ignore that Morty jay walks. A system of partial enforcement is not intrinsically more just because we haven't jailed Morty. It's actually unjust because if Morty is free to jay walk then how can we justify locking up Rick if jay walking is the crime? We probably just like Rick less. Partial enforcement is a practical reality because we're willing to accept the injustice of partial enforcement rather than live in an Orwellian police state (a decision I'm thrilled with!). > There are too many bad laws out there. That's the point! If bad laws stay on the books and aren't generally enforced then they can be enforced capriciously as punitive weapons by government officials. If bad laws are fully enforced, they won't stay on the books for very long. This is why it is in the best interest of a society to have as high an enforcement rate as possible before increasing false positives. It discourages bad laws from existing in the first place and surviving in the second.
  - Lawtonfogle 11y ago
    >Partial enforcement is a practical reality because we're willing to accept the injustice of partial enforcement rather than live in an Orwellian police state (a decision I'm thrilled with!). False dichotomy. If all laws are fully enforced, bad laws will soon be done away with by popular demand. If the government won't do so willingly, then they will be forced to do so by the people.
    - BWStearns 11y ago

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.

Zigurd 11y ago

>If you did commit a crime, we want to convict you. That's a massive assumption in an age when there is a law, somewhere, that make you and me criminals. It's a small ask for laws that are impractical to enforce remain impractical.

Lawtonfogle 11y ago

>If you did commit a crime, we want to convict you. There are too many bad laws out there. If I meet a bad guy, I can defend myself. If I cross the government, I'm doomed. I much rather support things that increase my likelihood of meeting a bad guy that I can defend myself against while reducing my ability to cross the government and being doomed without recourse. This is the whole reason I justify that it is better to let 99 guilty go free than to jail 1 innocent (assuming the government doesn't also take away my ability to defend myself, which it does seem intent on doing).

BWStearns 11y ago
It is unjust to jail Rick for jay walking and ignore that Morty jay walks. A system of partial enforcement is not intrinsically more just because we haven't jailed Morty. It's actually unjust because if Morty is free to jay walk then how can we justify locking up Rick if jay walking is the crime? We probably just like Rick less. Partial enforcement is a practical reality because we're willing to accept the injustice of partial enforcement rather than live in an Orwellian police state (a decision I'm thrilled with!). > There are too many bad laws out there. That's the point! If bad laws stay on the books and aren't generally enforced then they can be enforced capriciously as punitive weapons by government officials. If bad laws are fully enforced, they won't stay on the books for very long. This is why it is in the best interest of a society to have as high an enforcement rate as possible before increasing false positives. It discourages bad laws from existing in the first place and surviving in the second.
- Lawtonfogle 11y ago
  >Partial enforcement is a practical reality because we're willing to accept the injustice of partial enforcement rather than live in an Orwellian police state (a decision I'm thrilled with!). False dichotomy. If all laws are fully enforced, bad laws will soon be done away with by popular demand. If the government won't do so willingly, then they will be forced to do so by the people.
  - BWStearns 11y ago