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> 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 argume

> 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.
- everforward 2y ago
  > 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. The ACLU has a decent article about it [1]. Beyond that, there is a substantial power imbalance between law enforcement and private citizens implying that private citizens should be favored by the law where possible to even that out (this is well upheld in case law and documents from the founding of the country). As a private citizen, if you want to do something but are not sure about its legality, do you a) yell "YOLO" and go ahead and do it, b) consult a lawyer, or c) just not do it at all? I believe law enforcement should be held to that same bar. > 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. "Good faith" is at odds with recklessness and negligence; an action cannot be made both recklessly or negligently and in good faith (supported by majority opinion in Leon v United States, which established the good faith exception). I cannot see a way in which taking an action of unknown legality, while possessing both the time and means to take an alternate action of known legality, is not acting with reckless disregard or negligence to the rule of law and thus incompatible with good faith. From Leon v United States: "The deference accorded to a magistrate's finding of probable cause for the issuance of a warrant does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based, and the courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police." > 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 would genuinely encourage you to review the history of 4th Amendment jurisprudence. It has been continually weakened to the point that only the most flagrant and loudly-announced violations are found unconstitutional, and even then the punishments are virtually non-existent. Again, the ACLU has a very informative document on it literally called "The Crisis in Fourth Amendment Jurisprudence" [2]. Criminals aren't doing anything particularly new; stashing files somewhere and even encrypting them isn't anything new. Encrypting something in a way that was virtually undecipherable was possible even when the 4th Amendment was written. These are not novel criminal techniques, but the broad liberties given to police with regards to the 4th very much are. You are welcome to consider me unreasonable. I think there is a fundamental gap in core beliefs causing that. I do not believe criminals are doing anything categorically new, nor that crime is suddenly worse, nor that crime is currently so bad that it demands an exceptional response. Under that set of beliefs, I think opposition to exceptional police powers is reasonable. You seem to believe the opposite, and I can see how my opposition seems unreasonable. I would say that you have fallen victim to unfounded propaganda, and I presume you have a similar accusation to level at me. Regardless, I do appreciate you engaging in good faith and I wish you weren't ratio-ed on your comment. I do think you have brought interesting points to the discussion. 1. https://www.aclu.org/news/national-security/polices-get-out-jail-free-card https://www.aclu.org/news/national-security/polices-get-out-... 2. https://www.aclu.org/publications/crisis-fourth-amendment-jurisprudence https://www.aclu.org/publications/crisis-fourth-amendment-ju...
HideousKojima 2y ago
>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. For criminal actions an entirely different set of standards exists, and has longstanding legal precedent. Two in particular: mens rea and strict liability
- everforward 2y ago
  Right, and my argument is that the double standard itself is not just. I do know as a matter of practicality that I don't really have a legal leg to stand on here; the law is what judges say it is, and they've said it is the way it currently is. I do not find "the justice system treats them differently, therefore they are different and the justice system is just in treating them differently" to be a compelling argument that the double standard is just. It's just a circular appeal to authority; any behavior by the justice system is morally permissible under that idea, simply because the justice system declares it to be so. My question is how is it just that differing standards apply? And furthermore, how is it just that that leniency is granted to the benefactor of a severe power imbalance? Unconstitutional search and seizure could absolutely be a crime; in this situation, a citizen would likely be charged under the CFAA, which is a crime.
  - HideousKojima 2y ago
    It's not a double standard though, it's different standards for fundamentally different kinds of actions (state police action vs criminal activity)
    - everforward 2y ago
      Those are only nominally different, insofar as the justice system chooses to call some acts one and some acts another. It doesn't speak to the nature of the act, only what we choose to classify it as. I.e. unconstitutional searches could be criminal activity if the judiciary just decides to classify it differently. There are certainly differences in the nature of the act that we could talk about, but how the judiciary classifies them is only a nominal difference.

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.

everforward 2y ago
> 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. The ACLU has a decent article about it [1]. Beyond that, there is a substantial power imbalance between law enforcement and private citizens implying that private citizens should be favored by the law where possible to even that out (this is well upheld in case law and documents from the founding of the country). As a private citizen, if you want to do something but are not sure about its legality, do you a) yell "YOLO" and go ahead and do it, b) consult a lawyer, or c) just not do it at all? I believe law enforcement should be held to that same bar. > 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. "Good faith" is at odds with recklessness and negligence; an action cannot be made both recklessly or negligently and in good faith (supported by majority opinion in Leon v United States, which established the good faith exception). I cannot see a way in which taking an action of unknown legality, while possessing both the time and means to take an alternate action of known legality, is not acting with reckless disregard or negligence to the rule of law and thus incompatible with good faith. From Leon v United States: "The deference accorded to a magistrate's finding of probable cause for the issuance of a warrant does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based, and the courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police." > 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 would genuinely encourage you to review the history of 4th Amendment jurisprudence. It has been continually weakened to the point that only the most flagrant and loudly-announced violations are found unconstitutional, and even then the punishments are virtually non-existent. Again, the ACLU has a very informative document on it literally called "The Crisis in Fourth Amendment Jurisprudence" [2]. Criminals aren't doing anything particularly new; stashing files somewhere and even encrypting them isn't anything new. Encrypting something in a way that was virtually undecipherable was possible even when the 4th Amendment was written. These are not novel criminal techniques, but the broad liberties given to police with regards to the 4th very much are. You are welcome to consider me unreasonable. I think there is a fundamental gap in core beliefs causing that. I do not believe criminals are doing anything categorically new, nor that crime is suddenly worse, nor that crime is currently so bad that it demands an exceptional response. Under that set of beliefs, I think opposition to exceptional police powers is reasonable. You seem to believe the opposite, and I can see how my opposition seems unreasonable. I would say that you have fallen victim to unfounded propaganda, and I presume you have a similar accusation to level at me. Regardless, I do appreciate you engaging in good faith and I wish you weren't ratio-ed on your comment. I do think you have brought interesting points to the discussion. 1. https://www.aclu.org/news/national-security/polices-get-out-jail-free-card https://www.aclu.org/news/national-security/polices-get-out-... 2. https://www.aclu.org/publications/crisis-fourth-amendment-jurisprudence https://www.aclu.org/publications/crisis-fourth-amendment-ju...

HideousKojima 2y ago

>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. For criminal actions an entirely different set of standards exists, and has longstanding legal precedent. Two in particular: mens rea and strict liability

everforward 2y ago
Right, and my argument is that the double standard itself is not just. I do know as a matter of practicality that I don't really have a legal leg to stand on here; the law is what judges say it is, and they've said it is the way it currently is. I do not find "the justice system treats them differently, therefore they are different and the justice system is just in treating them differently" to be a compelling argument that the double standard is just. It's just a circular appeal to authority; any behavior by the justice system is morally permissible under that idea, simply because the justice system declares it to be so. My question is how is it just that differing standards apply? And furthermore, how is it just that that leniency is granted to the benefactor of a severe power imbalance? Unconstitutional search and seizure could absolutely be a crime; in this situation, a citizen would likely be charged under the CFAA, which is a crime.
- HideousKojima 2y ago
  It's not a double standard though, it's different standards for fundamentally different kinds of actions (state police action vs criminal activity)
  - everforward 2y ago
    Those are only nominally different, insofar as the justice system chooses to call some acts one and some acts another. It doesn't speak to the nature of the act, only what we choose to classify it as. I.e. unconstitutional searches could be criminal activity if the judiciary just decides to classify it differently. There are certainly differences in the nature of the act that we could talk about, but how the judiciary classifies them is only a nominal difference.