4 ms·

Shouldn't the first discussion be about the legality and constitutionality? If it is deemed to be such, only then does it make sense to be discussing whether i

• tptacek 13y ago
  The legality of a search follows from whether the search complies with the law. The constitutionality of the search follows from whether the law the search complies with is permitted by the Constitution. The Constitution asks: "is this search unreasonable?" So, to answer the previous two questions, you usually have to confront the reasonableness question first.
  • rhizome 13y ago
    So, in the "Bomb Wall Street," case cited today, does the fact that nobody was charged for planning to bomb Wall Street speak to reasonableness?
    • tptacek 13y ago
      No? It has no bearing either way on the reasonableness of the search, right?
      • rhizome 13y ago
        It's probably a matter of opinion. Personally, I'd call a search that didn't result in charges for what they were searching for a false positive, if not unreasonable fishing.
        • potatolicious 13y ago
          "Were charges filed" is not a productive criteria for whether or not a search was reasonable. A cop can pull you over for swerving on the road for suspicion of DUI, even though he/she has no definitive proof you are drunk - and it may very well turn out you were sober. This does not make the stop unreasonable. A search that does not lead to charges is a false positive, but a false positive is not in and of itself indication of reasonable-ness.
          • rhizome 13y ago
            "Were charges filed" is not a productive criteria for whether or not a search was reasonable. In this case, it should be! Keep in mind the kind of evidence they were working with. And nobody's talking about traffic stops, but call me crazy when I say I think terrorism should entail a slightly higher standard than that.
            • potatolicious 13y ago
              Careful down this path. What you're saying is that law enforcement re: terrorism should not have to respect the same principles and standards we place on other law enforcement action. Which is the precise argument that the other side is making. When we special-case terrorism we're no longer on solid ground - whether it's in favor of looser or stricter treatment. So, here's the thing: the level of false positives, when calculated in aggregate can suggest unreasonable enforcement. If 95% of all searches yield nothing, there is a legitimate question of whether or not your targeting is reasonable. This is the primary legal argument being used, for example, in the ACLU's case against NYC's stop and frisk policy. But a single case of a false positive, with no further information, cannot be taken as evidence either way. The fact that the Wall Street plot may have been a false positive sheds no light on whether or not the suspicion was reasonable in the first place.
              • rhizome 13y ago
                Supposedly there have been 10 "plots" in the last 12 years that have been disrupted by US government surveillance of its citizens. That's much higher than 95% yielding nothing. This is a fact, something we already know. I think you're making a category with respect to traffic stops, though. It's not "law enforcement" at the point the searches are being done in the context of surveillance, and I'd argue that meatspace comparisons here are inapt on the whole. The level of inquiry through surveillance would be comparable to a LEO having reasonable suspicion of something, then downloading your GPS history and searching your car after you leave it at your destination (imperfect, but close enough for internet debate).
        • bashinator 13y ago
          False positives seem like an inevitable side-effect of wanting to minimize false negatives. I've been tuning snort rules for the past couple weeks...
• rayiner 13y ago
  Well yes, if the searches are illegal under FISA/ECPA/etc, there is no point asking if they are illegal under the Constitution. I'm skipping the first part because it's less interesting than the second part.