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points by EPWN3D 2 days ago | 0 comments

Like it or not, the other team get to play lawyer too. Flock's argument is almost certainly along the lines of "If we had police officers stationed at all these intersections writing down license plate numbers, no one would bat an eye at it. Why is a camera any different?"

We know why it's different of course: scale. But there was never a general principle about scale and automation articulated in the Constitution because it just wasn't a thing to worry about in the 1700s.

We're left to hope that courts agree that just because something is okay for one police officer in one place to do, that doesn't mean the police department can perform that same task a thousand times in a thousand places with a thousand machines and still have it be okay.

[–] taurath 2 days ago

> "If we had police officers stationed at all these intersections writing down license plate numbers, no one would bat an eye at it."

This is literally the definition of a police dragnet.

[–] slg 2 days ago

>We know why it's different of course: scale. But there was never a general principle about scale and automation articulated in the Constitution because it just wasn't a thing to worry about in the 1700s.

If we're doing the whole "the other team get to play lawyer too" thing, your logic can become dangerous when applied to other issues. For example, almost no one had the ability to protect their communication and personal files from warrants when the laws regarding that sort of thing were written and computers have now made that trivial. Would people here treat that as a valid argument against end-to-end encryption?

[–] simoncion 2 days ago

> For example, almost no one had the ability to protect their communication and personal files from warrants when the laws regarding that sort of thing were written...

Pardon? We know that encryption was used at least as far back as the days of Julius Caesar. [0] Clever kids and adults have almost certainly been making their own ciphers since the invention of written language, and their own conlangs since the invention of verbal language.

I expect that -in the US- one could not be compelled to provide the decryption methods for one's papers and journals to the cops back in the 1700s just like cannot be compelled to provide one's passphrase to decrypt one's encrypted data today. Both are really obviously testimony, which cannot be legally compelled. [1]

[0] <https://en.wikipedia.org/wiki/Caesar_cipher>

[1] ...abuse of contempt of court charges notwithstanding...

[–] slg 2 days ago

Maybe you skipped over the "almost no one" aspect of that section you quoted. I didn’t claim that encryption was historically impossible in the same way the original comment didn't claim that it’s impossible for a cop to just sit around and watch a public road. The original point was about scale and the scale (and strength) of encryption available today was not possible for most people until the advent of computers.

[–] cucumber3732842 2 days ago

When the constitution was written correspondance (papers and effects) was physical and you could destroy it. It was not kept for years in a "oh it's deleted but that's just a flag, until we need the space it's still there" on some other party's servers like it is today.

[–] simoncion 2 days ago

> Maybe you skipped over the "almost no one" aspect of that section you quoted.

Nope! These methods were available to everyone who was literate as well as anyone who either maintained oral traditions describing how to perform them or just decided to make up a language for fun. Maybe you're forgetting that our ancestors were generally just as smart as we are today.

> The original point was about scale and the scale (and strength) of encryption available today was not possible for most people until the advent of computers.

This is completely irrelevant. Why? Cops have access to computers that can brute-force most everyday ciphers that would have been cooked up in the 1700s. The just outcome is for non-cops to have access to those same computers to create and use ciphers that restore the ability to keep one's private communications safe from the eyes of the police back to what it was hundreds of years ago.

This just outcome is -incidentally- what we have today because of a lot of tireless, difficult, thankless, ongoing work by some absolute heroes starting most visibly in the 1990s and continuing through today.

As a bonus, none of this has anything to do with the establishment of dragnet surveillance systems built and operated by private companies that are defacto acting as agents of The State. Dragnet surveillance is -at minimum- plainly antisocial and has no place in any civil society.

EPN3D's point stands despite your complaints: the only reason that the illegality of these dragnet surveillance systems wasn't immediately obvious to the courts is because the US Constitution doesn't explicitly mention that courts must always consider the expanded scale of what enhanced technology makes possible, so courts are very slow to incorporate it into their decision making process. Judges and lawyers rely heavily on tradition, so this slowness is only natural.

[–] slg 2 days ago

You are arguing against no one. The "almost" indicated an admission it was possible. No one was accusing people in the past of being stupid. My point was about the practicality of it. Or to rephrase the same idea, what percentage of human communication do you think was encrypted in the 18th century compared to today?

That's why it works as an analogy to mass surveillance. Surveillance was always possible, but now it is scaled up so a much higher percentage of our activity is surveilled. The commonality is that computers made these two things much easier to do. The purpose of my comment was to show that's not inherently good or bad by showing one example of when that's viewed as good and another when it's viewed as bad.

[–] joshAg 2 days ago

> But there was never a general principle about scale and automation articulated in the Constitution because it just wasn't a thing to worry about in the 1700s.

> We're left to hope that courts agree that just because something is okay for one police officer in one place to do, that doesn't mean the police department can perform that same task a thousand times in a thousand places with a thousand machines and still have it be okay.

There are multiple court cases that have done this exactly this. Carpenter v. United States and Chatrie v. United States are the ones you want.

[–] nostrademons 2 days ago

I'm reminded of Jeff Dean's maxim "Plan for 10x growth, but somewhere along the line to 100x, you are going to need an entirely different architecture, because the bottlenecks shift."

We've had certain areas of technology get 5-6 orders of magnitude more efficient, which shifts the bottlenecks and introduces new possible abuses. Government hasn't caught up. The last time this happened (with the industrial revolution), we had 3 major waves of wars between 1861-1945 that finally refactored the governments of the world into a working state. I'm hoping this time around can be less bloody, but I don't have very high hopes.

[–] nilamo 2 days ago

We used to call second hand information "circumstantial", and it couldn't be used against you. If the officer sitting in court didn't personally see it, then it didn't happen.

Or did Law and Order lie to us?

[–] treetalker 2 days ago

Circumstantial evidence is certainly sufficient to convict in most (if not all) US jurisdictions.

Since you mentioned secondhand information, I think you might be thinking of hearsay.

[–] nilamo 2 days ago

Yes I was absolutely thinking of hearsay, thank you.

[–] cogman10 2 days ago

There are also several exceptions to the hearsay rule.

[–] treetalker 2 days ago

… and certain evidence that would otherwise be hearsay is often deemed non-hearsay by rule or statute!

[–] hnlmorg 2 days ago

I wasn’t aware CCTV was ever called circumstantial. At which point does the principal end? Are forensics circumstantial because a police officer wasn’t there when the material was deposited?

Maybe this is me being naive?

[–] HWR_14 2 days ago

Being in an area is circumstantial.

[–] s1artibartfast 2 days ago

Not only are you wrong, you are mixing up court evidence and police investigation.

Your fingerprint at a crime scene or DNA on a victim is circumstantial evidence. It is weaker evidence in court than hard evidence, but still valid.

This circumstantial evidence is more than sufficient to search your house or car and find a body (hard evidence).

[–] cogman10 2 days ago

Law and Order lied to us. Courts run on circumstantial evidence. A lot of cases turn on it.

For criminal law, prosecutors have to prove beyond reasonable doubt. If they have a gun, search history for "how to kill someone and get away with it", blood in their car, and someone that's been missing for an extended period of time. They can and have gotten convictions based on that. Hans Reiser was convicted under pretty much those circumstances.

[–] dTal 2 days ago

Your example evidence set is actually quite robust by US justice system standards. There are countless cases of innocent people getting sentenced to death for e.g. being the one to report the murder, often in the face of strong circumstantial counter evidence.

[–] dualvariable 2 days ago

Law and order lied to you. Circumstantial evidence can be enough for a conviction, provided that all the evidence adds up to enough to prove guilt beyond a reasonable doubt. And it can certainly provide a reasonable suspicion for a traffic stop.

[–] freeone3000 2 days ago

Law and Order absolutely lied to you, in many ways. Video evidence is absolutely evidence. Also, the threshold for a traffic stop is very low. “I thought I saw something on a camera” absolutely meets the limit for a traffic stop.

[–] hamburglar 2 days ago

Law and Order lied in many ways, but calling out evidence for being circumstantial isn’t one of them. “Circumstantial” doesn’t mean it doesn’t count, but it does discount its evidentiary strength.

[–] zetanor 2 days ago

>We know why it's different of course: scale

I think it's more about abstraction. If someone is standing on the street corner taking down your plate number, you know they're likely up to no good. If there's a camera on the street corner, it may bother me, but the vast majority of people just go "eh".

[–] gambiting 2 days ago

There was a case exactly like this, and the ruling was literally "just because you could post officers next to the suspects house 24/7 and record their comings and going, doesn't mean that using illegal survailence to record their movement is the same". It has been tried in court and lost.

[–] R1D3R 2 days ago

I would definitely bat an eye at cops acting like human flock cameras. That sounds like an incredible waste of resources.

[–] HWR_14 2 days ago

In the several years it will take to resolve, the one side will get to do what they want and the other will not.

[–] fluidcruft 2 days ago

Flock has no power vs the commerce clause. Congress just has to use it.

[–] calvinmorrison 2 days ago

laws are a tacit agreement between the people and government that is all.