5 ms·

The article asks: > How is the public interest served by a policy that only thwarts lawful search warrants? Perhaps the answer is that judges act as rubber st

The article asks: > How is the public interest served by a policy that only thwarts lawful search warrants? Perhaps the answer is that judges act as rubber stamps now, authorizing way too many search warrants. The author assumes that the judges are fairly applying the 4th amendment.

iconjack 12y ago
I too was surprised by the author's question. It's as if he hasn't been following the news lately about the apparent impotence of the 4th amendment these days. Yet his wiki page says he "has been regarded as a leading scholar on Fourth Amendment jurisprudence in electronic communications and surveillance." In light of that, he comes across as extremely naive. (or worse?)
- bjt 12y ago
  His Wikipedia page also relates his career in the DoJ and as a US Attorney, a very different background from the typical libertarian HN reader. I don't agree with Orin Kerr on this, but I'm willing to accept that he's likely seen things about the day-to-day business of law enforcement that I just don't understand. It's worth us spending at least a few moments entertaining the thought that maybe we are the naive ones.
  - jnbiche 12y ago
    > but I'm willing to accept that he's likely seen things about the day-to-day business of law enforcement that I just don't understand...that maybe we are the naive ones. I'm sorry, but no, no, no. I'm perfectly clear on what exactly this move by Apple enables, which is that more criminals -- some horrible -- will go free. But context is important here: 1. By the same token, more innocent people who never should have been charged will also go free. 2. Giving up many of our constitutional rights would also result in more criminals being apprehended, but few of us would do that, because we understand the importance of these rights for our system of government. Why is this any different? 3. Most importantly, many of us would be much more amenable to a compromise here if the government hadn't horribly abused their power over the past 15-20 years. Prosecutorial misconduct and out-of-control blackops agencies have become such a problem that almost any solution is worth consideration. You think Apple would have done this if our government had a reputation for fairly using its power? So no, not falling for the "we've seen things you kids would never understand" ploy -- that's been pulled on us before. It's not working this time.
  - andrewchambers 12y ago
    Of course from his perspective, not being able to access crucial evidence puts peoples lives in danger constantly. So it's not that unreasonable of a position to take. But he has been exposed to highly unusual circumstances with a high bias.
  - r00fus 12y ago
    > I don't agree with Orin Kerr on this, but I'm willing to accept that he's likely seen things about the day-to-day business of law enforcement that I just don't understand. Sorry, it's more likely he's just vested in the current (not-privacy-respecting) system of governance. One which has major drawbacks for many folks who are pushing the envelope or who just happen to be on the wrong side of one of the many folks who have access to the government's powers.
oksawe 12y ago
Not only that, but they're issued in secret by secret courts. This article is very disturbing.
PhantomGremlin 12y ago
> judges act as rubber stamps now Exactly. Our government is as overbearing and oppressive as it's been in a very long time. I read somewhere that judges approve something like 99% of the search warrants presented to them. They no longer serve as a check on law enforcement. I'd love to hear otherwise, to hear how judges are doing a good job balancing the interests of people against the interests of law enforcement.
- vinceguidry 12y ago
  I did not downvote you, but there's a perfectly good explanation for why 99% of warrants would be approved. Consider that the police know what warrants a judge is likely to approve and which he's likely to turn down. Over time, police departments will learn to submit the warrants they can get approved and not bother wasting a judge's time with warrants that won't be approved. So very high approval rates do not necessarily signal the loss of the judge's ability or willingness to check police power. Just that everybody involved is doing their jobs as professionals in their domain.
  - AnthonyMouse 12y ago
    > there's a perfectly good explanation for why 99% of warrants would be approved. Your argument is that the approval rate could be 99% legitimately. Even if true it doesn't actually provide any evidence that judges are not acting as a rubber stamp, it only attempts to discount some evidence in favor of it. Moreover, the fact that the approval rate is 99% is still evidence that judges are not being very critical in approving warrants. The high rate makes it statistically more likely that judges are approving warrants uncritically than would be the case if the rate was lower.
    - vinceguidry 12y ago
      > Moreover, the fact that the approval rate is 99% is still evidence that judges are not being very critical in approving warrants. No it is not. > The high rate makes it statistically more likely that judges are approving warrants uncritically than would be the case if the rate was lower. As I said in another sub-thread, you are going to have to explain the statistics involved if you want to make an argument from them. Otherwise you are just being circular. You cannot expect a statement to be its own proof.
a3_nm 12y ago
Besides, a sufficiently competent criminal could benefit from the same level of security that Apple allegedly provides, using crypto. If something is lawful and technically possible, making it available to the masses (under the assumption that Apple's statements are correct) does not sound like a bad thing.
rmc 12y ago
And that the 4th Amendment doesn't apply outside USA, and Apple is inside the USA.

iconjack 12y ago

I too was surprised by the author's question. It's as if he hasn't been following the news lately about the apparent impotence of the 4th amendment these days. Yet his wiki page says he "has been regarded as a leading scholar on Fourth Amendment jurisprudence in electronic communications and surveillance." In light of that, he comes across as extremely naive. (or worse?)

bjt 12y ago
His Wikipedia page also relates his career in the DoJ and as a US Attorney, a very different background from the typical libertarian HN reader. I don't agree with Orin Kerr on this, but I'm willing to accept that he's likely seen things about the day-to-day business of law enforcement that I just don't understand. It's worth us spending at least a few moments entertaining the thought that maybe we are the naive ones.
- jnbiche 12y ago
  > but I'm willing to accept that he's likely seen things about the day-to-day business of law enforcement that I just don't understand...that maybe we are the naive ones. I'm sorry, but no, no, no. I'm perfectly clear on what exactly this move by Apple enables, which is that more criminals -- some horrible -- will go free. But context is important here: 1. By the same token, more innocent people who never should have been charged will also go free. 2. Giving up many of our constitutional rights would also result in more criminals being apprehended, but few of us would do that, because we understand the importance of these rights for our system of government. Why is this any different? 3. Most importantly, many of us would be much more amenable to a compromise here if the government hadn't horribly abused their power over the past 15-20 years. Prosecutorial misconduct and out-of-control blackops agencies have become such a problem that almost any solution is worth consideration. You think Apple would have done this if our government had a reputation for fairly using its power? So no, not falling for the "we've seen things you kids would never understand" ploy -- that's been pulled on us before. It's not working this time.
- andrewchambers 12y ago
  Of course from his perspective, not being able to access crucial evidence puts peoples lives in danger constantly. So it's not that unreasonable of a position to take. But he has been exposed to highly unusual circumstances with a high bias.
- r00fus 12y ago
  > I don't agree with Orin Kerr on this, but I'm willing to accept that he's likely seen things about the day-to-day business of law enforcement that I just don't understand. Sorry, it's more likely he's just vested in the current (not-privacy-respecting) system of governance. One which has major drawbacks for many folks who are pushing the envelope or who just happen to be on the wrong side of one of the many folks who have access to the government's powers.

oksawe 12y ago

Not only that, but they're issued in secret by secret courts. This article is very disturbing.

PhantomGremlin 12y ago

> judges act as rubber stamps now Exactly. Our government is as overbearing and oppressive as it's been in a very long time. I read somewhere that judges approve something like 99% of the search warrants presented to them. They no longer serve as a check on law enforcement. I'd love to hear otherwise, to hear how judges are doing a good job balancing the interests of people against the interests of law enforcement.

vinceguidry 12y ago
I did not downvote you, but there's a perfectly good explanation for why 99% of warrants would be approved. Consider that the police know what warrants a judge is likely to approve and which he's likely to turn down. Over time, police departments will learn to submit the warrants they can get approved and not bother wasting a judge's time with warrants that won't be approved. So very high approval rates do not necessarily signal the loss of the judge's ability or willingness to check police power. Just that everybody involved is doing their jobs as professionals in their domain.
- AnthonyMouse 12y ago
  > there's a perfectly good explanation for why 99% of warrants would be approved. Your argument is that the approval rate could be 99% legitimately. Even if true it doesn't actually provide any evidence that judges are not acting as a rubber stamp, it only attempts to discount some evidence in favor of it. Moreover, the fact that the approval rate is 99% is still evidence that judges are not being very critical in approving warrants. The high rate makes it statistically more likely that judges are approving warrants uncritically than would be the case if the rate was lower.
  - vinceguidry 12y ago
    > Moreover, the fact that the approval rate is 99% is still evidence that judges are not being very critical in approving warrants. No it is not. > The high rate makes it statistically more likely that judges are approving warrants uncritically than would be the case if the rate was lower. As I said in another sub-thread, you are going to have to explain the statistics involved if you want to make an argument from them. Otherwise you are just being circular. You cannot expect a statement to be its own proof.

a3_nm 12y ago

Besides, a sufficiently competent criminal could benefit from the same level of security that Apple allegedly provides, using crypto. If something is lawful and technically possible, making it available to the masses (under the assumption that Apple's statements are correct) does not sound like a bad thing.

rmc 12y ago

And that the 4th Amendment doesn't apply outside USA, and Apple is inside the USA.