3 ms·

I think its okay that we expect cops to be good _after_ the rule exists, rather than set the bad guys free to (checks notes) incentivize cops to take our new ru

I think its okay that we expect cops to be good _after_ the rule exists, rather than set the bad guys free to (checks notes) incentivize cops to take our new rule super seriously.

banku_brougham 2y ago
That rule has been around for quite a while, and looks worse for wear now
- refulgentis 2y ago
  > That rule has been around for quite a while The rule established in this case is new, hence TFA, and all the time the lawyers and judge wasted on it :) If I may suggest where wires are getting crossed: You are sort of assuming it's like a logic gate: if 4th amendment violation, bad evidence, criminal must go free. So when you say "the rule", you mean "the 4th amendment", not the actual ruling. That's not how it works, because that simple ultimatum also has edge cases. So we built up this whole system around nominating juries and judges, and paying lawyers, over centuries, to argue out complicated things like weighing intentionality.
everforward 2y ago
It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality. That is that we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand. That is why many people think this should be tossed out. Ignorance that an action was a crime is almost never an acceptable defense, so it should not be an acceptable offense either.
- refulgentis 2y ago
  > we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand. I'm not trying to be funny, or aggressive, or passive aggressive, seriously: there's two entities in the discussion, the cops, and the person with a photograph with a hash matching child porn. I'm phrasing that as passively as possible because I want to avoid the tarpit of looking like I'm appealing to emotion: Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash? > It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality...That is why many people think this should be tossed out. Of course, I could be missing something here because I'm making a hash of parsing the first bit. But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case.
  - everforward 2y ago
    > Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash? This is literally the doctrine behind the good faith argument and qualified immunity. If they have not been informed that this specific act, done in this specific way is not allowed then it is largely permissible. A stupid but equivalent defense from the possessor would be “it’s in Googles possession, not mine, so I had a good faith belief that I did not possess the files”. It’s clearly wrong based on case law, but I wouldn’t expect the average person to have a great grasp of how possession works legally (nor would I claim to be an expert on it). This is effectively what the good faith doctrine establishes for police, even though they really ought to at least have an inkling given that the law is an integral part of their jobs. As long as they can claim to be sufficiently stupid, it is permissible. That is not extended to the defense, for whom stupidity is never a defense. > But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case. Acting in good faith would be getting a warrant regardless, because the issue is not that time-sensitive and there are clear ambiguities here. They acted brashly under the assumption that if they were wrong, they could claim stupidity. It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search. It is, yet again, rules for thee but not for me. Frankly, with the asymmetry of responsibility and experience with laws, the police should need to clear a MUCH higher bar to come within throwing distance of “good faith”.
    - freejazz 2y ago
      Your argument is a bit disingenuous because it's not applicable in situation where there is clear law clarifying that something can't be done. You're pretending that cops are using this in situations where it's known that a warrant is needed, as opposed to it being an exception to "fruit of the poisonous tree" doctrine when new caselaw is being made. > Acting in good faith would be getting a warrant regardless That's not what "good faith" means, that's just something entirely made up by you. From a reasonable perspective that could be described as foolish and a waste of time and the public's resources. > It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search. There's a constant tension between technology, crime and the police that's reflected in the history of 4th amendment jurisprudence and it's not at all like what you describe. The criminals are pushing the boundaries to which the police must catch up, and the law must determine what is fair as society changes over time. I'm not particularly pro cop, but you don't seem to be reasonable about any of this.
_Algernon_ 2y ago
The 4th amendment was written in 1791
- mobb_solo 2y ago
  And one thing we learn as we've been hanging around in Time long enough to recognize larger cycles, is the world changes, people dont. Even as we change the world.
- GuB-42 2y ago
  The 4th amendment is about unreasonable searches and seizures, it is also about "persons, houses, papers, and effects", that is, not files stored in someone else's computer. The police here considered that a hash match was a reasonable enough condition to conduct a search, and that Google's TOS allowed it. They were wrong, but it is not obvious that they were by just reading the 4th amendment, and the situation is rather new, so it is reasonable to assume that the police acted in good faith.
  - thanksgiving 2y ago
    If I have documents in a locked briefcase in a hotel room, does the police get to read and copy them with the hotel operator's permission while I am in the shower? Assume that the locked briefcase is not particularly tamper proof. Anyone with decent lock picking skills can open one.
    - scott_w 2y ago
      Is it your locked briefcase or the hotel's? I believe hotels have the ability to unlock their own safe, so I suspect they're allowed to ask the hotel's permission to look without a warrant. Also, if a hotel cleaner found illegal material lying in your room, the police don't need a warrant to seize it and prosecute you. If it's your briefcase then I think they need a warrant.
  - salawat 2y ago
    The type of person who cannot draw a line of semantic equivalence between papers and files on a computer, is uniquely devoted to entertaining a level of obtuseness it is hard to seriously entertain. On par with people who think that "Arms" in the second amendment must only apply to muskets, cannons and such, and nothing after. Tell me. When you put a bunch of papers in a folder, then put them in a cabinet, arguably under some semblance of organization in order to make later retrieval easier, what are you doing? Filing. The entire desktop metaphor, (the basis around which most computer UI is based), was chosen in part specifically for it's compatibility with non-digital processes at the time of software and the personal computer's fruition. Files on a disk, are in a literal sense, your papers. They are stored in directories(lists of things and where to find them, a.k.a. folders), areanged under the abstractive auspices of a "file system", and at times "archived" for convenient storage or transport. Gee. Same verbage as what you do with papers... In fact, your papers have nothing to do with dead trees except as an accident of it being the first prevalent medium for persistent info storage. Your papers covers the set of information through which you conduct your business with the outside world. Those packets of paper are files. Those collections of 0's and 1s on a disk are files. Files are papers. Papers are protected. The involvement of a computer in the chain suddenly nullifying the essence of what point was being made by the Founders is as worthy of ridicule as thinking they went to war with their colonial parent state only because of a tax spiff. Or the civil war being only about slavery. It's evidence of a worldview most tragically impoverished; either by accident (which while regrettable, is at least amenable to remedy), or intention to push a state of affairs; to which one can only shake one's head and push on with their own life, and hope that maybe there are enough like minded individuals out there to counterbalance the individual's in questions aspirations. Already spent more cycles on this than I should have, good day.

I think its okay that we expect cops to be good _after_ the rule exists, rather than set the bad guys free to (checks notes) incentivize cops to take our new rule super seriously.

banku_brougham 2y ago

That rule has been around for quite a while, and looks worse for wear now

refulgentis 2y ago
> That rule has been around for quite a while The rule established in this case is new, hence TFA, and all the time the lawyers and judge wasted on it :) If I may suggest where wires are getting crossed: You are sort of assuming it's like a logic gate: if 4th amendment violation, bad evidence, criminal must go free. So when you say "the rule", you mean "the 4th amendment", not the actual ruling. That's not how it works, because that simple ultimatum also has edge cases. So we built up this whole system around nominating juries and judges, and paying lawyers, over centuries, to argue out complicated things like weighing intentionality.

everforward 2y ago

It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality. That is that we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand. That is why many people think this should be tossed out. Ignorance that an action was a crime is almost never an acceptable defense, so it should not be an acceptable offense either.

refulgentis 2y ago
> we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand. I'm not trying to be funny, or aggressive, or passive aggressive, seriously: there's two entities in the discussion, the cops, and the person with a photograph with a hash matching child porn. I'm phrasing that as passively as possible because I want to avoid the tarpit of looking like I'm appealing to emotion: Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash? > It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality...That is why many people think this should be tossed out. Of course, I could be missing something here because I'm making a hash of parsing the first bit. But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case.
- everforward 2y ago
  > Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash? This is literally the doctrine behind the good faith argument and qualified immunity. If they have not been informed that this specific act, done in this specific way is not allowed then it is largely permissible. A stupid but equivalent defense from the possessor would be “it’s in Googles possession, not mine, so I had a good faith belief that I did not possess the files”. It’s clearly wrong based on case law, but I wouldn’t expect the average person to have a great grasp of how possession works legally (nor would I claim to be an expert on it). This is effectively what the good faith doctrine establishes for police, even though they really ought to at least have an inkling given that the law is an integral part of their jobs. As long as they can claim to be sufficiently stupid, it is permissible. That is not extended to the defense, for whom stupidity is never a defense. > But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case. Acting in good faith would be getting a warrant regardless, because the issue is not that time-sensitive and there are clear ambiguities here. They acted brashly under the assumption that if they were wrong, they could claim stupidity. It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search. It is, yet again, rules for thee but not for me. Frankly, with the asymmetry of responsibility and experience with laws, the police should need to clear a MUCH higher bar to come within throwing distance of “good faith”.
  - freejazz 2y ago
    Your argument is a bit disingenuous because it's not applicable in situation where there is clear law clarifying that something can't be done. You're pretending that cops are using this in situations where it's known that a warrant is needed, as opposed to it being an exception to "fruit of the poisonous tree" doctrine when new caselaw is being made. > Acting in good faith would be getting a warrant regardless That's not what "good faith" means, that's just something entirely made up by you. From a reasonable perspective that could be described as foolish and a waste of time and the public's resources. > It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search. There's a constant tension between technology, crime and the police that's reflected in the history of 4th amendment jurisprudence and it's not at all like what you describe. The criminals are pushing the boundaries to which the police must catch up, and the law must determine what is fair as society changes over time. I'm not particularly pro cop, but you don't seem to be reasonable about any of this.

_Algernon_ 2y ago

The 4th amendment was written in 1791

mobb_solo 2y ago
And one thing we learn as we've been hanging around in Time long enough to recognize larger cycles, is the world changes, people dont. Even as we change the world.
GuB-42 2y ago
The 4th amendment is about unreasonable searches and seizures, it is also about "persons, houses, papers, and effects", that is, not files stored in someone else's computer. The police here considered that a hash match was a reasonable enough condition to conduct a search, and that Google's TOS allowed it. They were wrong, but it is not obvious that they were by just reading the 4th amendment, and the situation is rather new, so it is reasonable to assume that the police acted in good faith.
- thanksgiving 2y ago
  If I have documents in a locked briefcase in a hotel room, does the police get to read and copy them with the hotel operator's permission while I am in the shower? Assume that the locked briefcase is not particularly tamper proof. Anyone with decent lock picking skills can open one.
  - scott_w 2y ago
    Is it your locked briefcase or the hotel's? I believe hotels have the ability to unlock their own safe, so I suspect they're allowed to ask the hotel's permission to look without a warrant. Also, if a hotel cleaner found illegal material lying in your room, the police don't need a warrant to seize it and prosecute you. If it's your briefcase then I think they need a warrant.
- salawat 2y ago
  The type of person who cannot draw a line of semantic equivalence between papers and files on a computer, is uniquely devoted to entertaining a level of obtuseness it is hard to seriously entertain. On par with people who think that "Arms" in the second amendment must only apply to muskets, cannons and such, and nothing after. Tell me. When you put a bunch of papers in a folder, then put them in a cabinet, arguably under some semblance of organization in order to make later retrieval easier, what are you doing? Filing. The entire desktop metaphor, (the basis around which most computer UI is based), was chosen in part specifically for it's compatibility with non-digital processes at the time of software and the personal computer's fruition. Files on a disk, are in a literal sense, your papers. They are stored in directories(lists of things and where to find them, a.k.a. folders), areanged under the abstractive auspices of a "file system", and at times "archived" for convenient storage or transport. Gee. Same verbage as what you do with papers... In fact, your papers have nothing to do with dead trees except as an accident of it being the first prevalent medium for persistent info storage. Your papers covers the set of information through which you conduct your business with the outside world. Those packets of paper are files. Those collections of 0's and 1s on a disk are files. Files are papers. Papers are protected. The involvement of a computer in the chain suddenly nullifying the essence of what point was being made by the Founders is as worthy of ridicule as thinking they went to war with their colonial parent state only because of a tax spiff. Or the civil war being only about slavery. It's evidence of a worldview most tragically impoverished; either by accident (which while regrettable, is at least amenable to remedy), or intention to push a state of affairs; to which one can only shake one's head and push on with their own life, and hope that maybe there are enough like minded individuals out there to counterbalance the individual's in questions aspirations. Already spent more cycles on this than I should have, good day.