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Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, a

Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, and even other people's servers are becoming invaluable, impossible-to-live-without brain extensions. That they should be allowed to be used against you in court is insane. The communications that they send and receive should be subject to well-overseen surveillance, but the devices themselves are as much you as you are. I imagine a not too far off future where your glasses tell you your schedule, where haptic and audio feedback are constantly feeding you a stream of your important information; Where even moreso than today, your personal data network is you. There's a chapter in Accellerando ^1 where Manfred's glasses are stolen, and the thug who steals them becomes Manfred by simple virtue of putting them on and being overwhelmed by the signals. He's not a very good Manfred, but he quickly is more Manfred than the person he was. It's only a matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc. [1] http://www.antipope.org/charlie/blog-static/fiction/accelerando/accelerando-intro.html http://www.antipope.org/charlie/blog-static/fiction/accelera...

DannyBee 13y ago
The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial. It was never intended to prevent evidence you were stupid enough to write down from being used against you. So basically, "insane or not", the fifth was clearly not intended for this purpose, despite your attempt to view this as "an extension of yourself".
- cgshaw 13y ago
  Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender. Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute) The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
  - DannyBee 13y ago
    >Attorney here. So am I, though not a criminal one :) >The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane. While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.
    - cgshaw 13y ago
      Sweet. I had to jump off last night, but I did some criminal appointments in both federal and state court to get some courtroom experience while fresh out of law school. Certainly not an expert, but capable of having a fairly deep discussion on search & seizure. I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.
  - mikhael 13y ago
    I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?
    - DannyBee 13y ago
      An interesting question. Again, the main historical reason for the fifth amendment was torture, not to avoid knowing the truth, or that you were somehow magically sacred. If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine. Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed). In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)
- linuxhansl 13y ago
  At least that means that I would not need to help them searching my phone. Is that correct? My phone needs a pass code to allow any interaction and I could conceivably encrypt data on it. What if I get arrested, but on grounds of the 4th amendment won't reveal the pass code? Oops. Meant to reply to cgshaw, the child comment.
  - DannyBee 13y ago
    "At least that means that I would not need to help them searching my phone. Is that correct? " This varies right now. Essentially, it depends on whether your giving the password would tell them something they can't otherwise prove, and that thing is testimonial in nature: That you maintain ownership of the item, etc. Basically, if they can authenticate the existence of what information is on the phone, and can authenticate your ownership, you may very well be compelled to give the password. That said, they are very fact specific inquiries, and, AFAIK, the world is still up in the air here. See U.S. v. Boucher, United States v. Fricosu, United States v. Kirschner, etc.
ISL 13y ago
I think many of the founders would have agreed with you. That said, it's my understanding that personal diaries are admissible in court. Our electronics are similarly private, so the fourth amendment, protecting 'persons, houses, papers, and effects', applies.
- DannyBee 13y ago
  "I think many of the founders would have agreed with you." Based on what? The fifth amendment exists mainly to prevent torturing people for extracting information, a practice that was not uncommon in parts of the 16th and 17th centuries. Extending this to "personal assistants" doesn't seem like anything the founders would have supported, so i'd love to see evidence. Again, the fourth amendment, i agree, but the fifth? I don't see it.
  - ISL 13y ago
    My diary is just myself in the past. Must I be compelled to testify against my future self?
    - DannyBee 13y ago
      Yes. Your diary is not testimony. Your blood is not testimony. Your handwriting is not testimony. Testimony is testimony. As mentioned elsewhere, you miss the point of the fifth amendment. It was not because self-testimony was sacred. It is because people were being tortured to get it. Given that a diary is already written, no current harm will come to you from its use. Now, if your question is whether this should be protected that's a question about society and whether we need to pass a new amendment. But it's not what the fifth was there for.
samstave 13y ago
>It's only a matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc. That time is already here, and it has a title: "Strong-Selector"
mistercow 13y ago
The problem is that the Constitution we have simply doesn't offer the protections we need. When it was written, nobody would have thought to even debate protecting against keeping a copy of every single correspondence a person made, or a log of everything a person read, even in their own homes. It would be like today considering if we should have a protection against the government taking our DNA and making half-dinosaur hybrid clones of us to use as soldiers. It is not technically impossible, but it's very difficult to see how it would ever be practical. Unfortunately, the amendment process we have is proving to be rather inadequate. It seems likely that if we didn't already have the Fifth Amendment, we'd never be able to get it considered as a serious issue, much less ratified. Some people would be complaining about the government torturing its own citizens all the time, and the President would be telling us that torture is "a powerful tool, and with great power comes great responsibility", and that we must limit that power so it wouldn't be abused. And at the same time, he'd be going to SCOTUS to try and get permission to do it even more (after all, how can you call it "cruel and unusual" when it's so commonplace?).
- Shivetya 13y ago
  It does provide us the protections we need, the government just violates those protections until a court slaps them down. It becomes a battle of lawyers, between those who twist the words to bypass every protection and those who sit there and pull apart every twist to reveal the deficiency of the argument. The 4th is more than enough to protect the taking of our cellphones. Like any property of ours, our houses for one, it should require a warrant to search
ketralnis 13y ago
> They should be protected by the Fifth A recording of something that you said is admissible. Why wouldn't a digital recording of something you said be? Because you own it and the court doesn't and shouldn't be allowed to search it without probably cause in the first place. > The communications that they send and receive should be subject to well-overseen surveillance Surveillance, all-seeing all-knowing citizen-watching and suspicion-free spying is not okay. Targeted, with-warrant wiretaps are (maybe) a different story. Maybe I define this different than most (please chime in with your own) but the word surveillance means to me that you're being watched from above with many other also-innocent people.

DannyBee 13y ago

The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial. It was never intended to prevent evidence you were stupid enough to write down from being used against you. So basically, "insane or not", the fifth was clearly not intended for this purpose, despite your attempt to view this as "an extension of yourself".

cgshaw 13y ago
Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender. Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute) The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
- DannyBee 13y ago
  >Attorney here. So am I, though not a criminal one :) >The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane. While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.
  - cgshaw 13y ago
    Sweet. I had to jump off last night, but I did some criminal appointments in both federal and state court to get some courtroom experience while fresh out of law school. Certainly not an expert, but capable of having a fairly deep discussion on search & seizure. I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.
- mikhael 13y ago
  I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?
  - DannyBee 13y ago
    An interesting question. Again, the main historical reason for the fifth amendment was torture, not to avoid knowing the truth, or that you were somehow magically sacred. If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine. Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed). In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)
linuxhansl 13y ago
At least that means that I would not need to help them searching my phone. Is that correct? My phone needs a pass code to allow any interaction and I could conceivably encrypt data on it. What if I get arrested, but on grounds of the 4th amendment won't reveal the pass code? Oops. Meant to reply to cgshaw, the child comment.
- DannyBee 13y ago
  "At least that means that I would not need to help them searching my phone. Is that correct? " This varies right now. Essentially, it depends on whether your giving the password would tell them something they can't otherwise prove, and that thing is testimonial in nature: That you maintain ownership of the item, etc. Basically, if they can authenticate the existence of what information is on the phone, and can authenticate your ownership, you may very well be compelled to give the password. That said, they are very fact specific inquiries, and, AFAIK, the world is still up in the air here. See U.S. v. Boucher, United States v. Fricosu, United States v. Kirschner, etc.

ISL 13y ago

I think many of the founders would have agreed with you. That said, it's my understanding that personal diaries are admissible in court. Our electronics are similarly private, so the fourth amendment, protecting 'persons, houses, papers, and effects', applies.

DannyBee 13y ago
"I think many of the founders would have agreed with you." Based on what? The fifth amendment exists mainly to prevent torturing people for extracting information, a practice that was not uncommon in parts of the 16th and 17th centuries. Extending this to "personal assistants" doesn't seem like anything the founders would have supported, so i'd love to see evidence. Again, the fourth amendment, i agree, but the fifth? I don't see it.
- ISL 13y ago
  My diary is just myself in the past. Must I be compelled to testify against my future self?
  - DannyBee 13y ago
    Yes. Your diary is not testimony. Your blood is not testimony. Your handwriting is not testimony. Testimony is testimony. As mentioned elsewhere, you miss the point of the fifth amendment. It was not because self-testimony was sacred. It is because people were being tortured to get it. Given that a diary is already written, no current harm will come to you from its use. Now, if your question is whether this should be protected that's a question about society and whether we need to pass a new amendment. But it's not what the fifth was there for.

samstave 13y ago

>It's only a matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc. That time is already here, and it has a title: "Strong-Selector"

mistercow 13y ago

The problem is that the Constitution we have simply doesn't offer the protections we need. When it was written, nobody would have thought to even debate protecting against keeping a copy of every single correspondence a person made, or a log of everything a person read, even in their own homes. It would be like today considering if we should have a protection against the government taking our DNA and making half-dinosaur hybrid clones of us to use as soldiers. It is not technically impossible, but it's very difficult to see how it would ever be practical. Unfortunately, the amendment process we have is proving to be rather inadequate. It seems likely that if we didn't already have the Fifth Amendment, we'd never be able to get it considered as a serious issue, much less ratified. Some people would be complaining about the government torturing its own citizens all the time, and the President would be telling us that torture is "a powerful tool, and with great power comes great responsibility", and that we must limit that power so it wouldn't be abused. And at the same time, he'd be going to SCOTUS to try and get permission to do it even more (after all, how can you call it "cruel and unusual" when it's so commonplace?).

Shivetya 13y ago
It does provide us the protections we need, the government just violates those protections until a court slaps them down. It becomes a battle of lawyers, between those who twist the words to bypass every protection and those who sit there and pull apart every twist to reveal the deficiency of the argument. The 4th is more than enough to protect the taking of our cellphones. Like any property of ours, our houses for one, it should require a warrant to search

ketralnis 13y ago

> They should be protected by the Fifth A recording of something that you said is admissible. Why wouldn't a digital recording of something you said be? Because you own it and the court doesn't and shouldn't be allowed to search it without probably cause in the first place. > The communications that they send and receive should be subject to well-overseen surveillance Surveillance, all-seeing all-knowing citizen-watching and suspicion-free spying is not okay. Targeted, with-warrant wiretaps are (maybe) a different story. Maybe I define this different than most (please chime in with your own) but the word surveillance means to me that you're being watched from above with many other also-innocent people.