Comment by bko
17 hours ago
This may be unpopular opinion, but I'm more or less okay with things like search records and Uber receipts being included as evidence when there's probable cause.
It's no different than the contents of your home. Obviously we don't want police busting in to random homes to search, but if you're the suspect of a crime and police have a warrant, it's entirely reasonable to enter a home and search. I guess it can't necessarily help clear you up like an alibi would, but if the party is guilty is could provide things like more certainty, motivation, timeline of events, etc.
I think people conflate the two. They hold that certain things should remain private under all circumstances, where I believe the risk is a large dragnet of surveillance that affects everyone as opposed to targeted tools to determine guilt or innocence.
Am I wrong?
I don’t think you hold an unreasonable position on that issue. If everything is operating as it should then many would agree.
We’ve long ago entered a reality where almost everyone has a device on them that can track their exact location all the time and keeps a log of all their connections, interests and experiences. If a crime occurs at a location police can now theoretically see everyone who was in the vicinity, or who researched methods of committing a crime, etc. It’s hard to balance personal freedoms with justice, especially when those who execute on that balance have a monopoly on violence and can at times operate without public review. I think it’s the power differential that makes the debate and advocacy for clearer privacy protection more practical.
I shouldn't have to remind everyone that cops already can skip getting a warrant for things like phone location data.
Plenty of big services will just give cops info if they ask for it. It's legal. Any company or individual can just offer up evidence against you and that's fine, but big companies will have policies that do not require warrants.
Despite this atrocious anti-privacy stance, cops STILL clear around half of violent crimes, and that's only in states with rather good police forces, usually involving higher requirements than "A pulse" and long training in a police Academy. Other states get as low as 10% of crimes actually solved.
When you've built a panopticon and cops STILL can't solve cases, it's time to stop giving up rights and fix the cops.
> Plenty of big services will just give cops info if they ask for it. It's legal. Any company or individual can just offer up evidence against you and that's fine, but big companies will have policies that do not require warrants.
I think this is where policy is failing. No clear protections on privacy and collusion between corporations and the state is allowed. It’s outdated and impractical to have the limits on search and seizure at physical boundaries but not electronic ones.
1 reply →
There are two questions that come up.
1. How wide is the search net dragged?
2. Who can ask for access?
The first shows up in court cases about things like "which phones were near the crime" or "who in the area was talking about forest fires to ChatGPT?" If you sweep the net far enough, everyone can be put under suspicion for something.
A fun example of the second from a few years ago in the New York area was toll records being accessed to prove affairs. While most of us are OK with detectives investigating murders getting access to private information, having to turn it over to our exes is more questionable. (And the more personal the information, the less we are OK with it.)
Sure, warrants and subpoenas need to exist in order for the legal system to function. However, they have limits.
The modern abuse of the third-party doctrine is a different topic. Modern usage of the third-party doctrine claims (for instance) that emails sent and received via Gmail are actually Google's property and thus they can serve Google a warrant in order to access anyone's emails. The old-timey equivalent would be that the police could subpoena the post office to get the contents of my (past) letters -- this is something that would've been considered inconceivably illegal a few decades ago, but because of technical details of the design of the internet, we have ended up in this situation. Of course, the fact there are these choke points you can subpoena is very useful to the mass surveillance crowd (which is why these topics get linked -- people forget that many of these mass surveillance programs do have rubber-stamped court orders to claim that there is some legal basis for wiretapping hundreds of millions of people without probable cause).
In addition (in the US) the 5th amendment allows you the right to not be witness against yourself, and this has been found to apply to certain kinds of requests for documents. However, because of the third-party doctrine you cannot exercise those rights because you are not being asked to produce those documents.
> Am I wrong?
As a naturally curious person, who reads a lot and looks up a lot of things, I've learned to be cautious when talking to regular people.
While considering buying a house I did extensive research about fires. To do my job, I often read about computer security, data exfiltration, hackers and ransomware.
If I watch a WWI documentary, I'll end up reading about mustard gas and trench foot and how to aim artillery afterwards. If I read a sci-fi novel about a lab leak virus, I'll end up researching how real virus safety works and about bioterrorism. If I listen to a podcast about psychedelic-assisted therapy, I'll end up researching how drugs work and how they were discovered.
If I'm ever accused of a crime, of almost any variety or circumstance, I'm sure that prosecutors would be able to find suspicious searches related to it in my history. And then leaked out to the press or mentioned to the jury as just a vague "suspect had searches related to..."
The average juror, or the average person who's just scrolling past a headline, could pretty trivially be convinced that my search history is nefarious for almost any accusation.
Notorious hacker floor2 openly published comments online about misusing judicial process and the difficulty of covering his tracks.
Sometimes you are better off not invoking your right to a jury trial because if there is straight up evidence in your favor, it's easier to get a jury to ignore that for emotional bullshit than a judge.
DAs for bigger departments are likely well equipped, well trained, and well practiced at tugging on the heartstrings of average juries, which are not average people, because jury selection is often a bad system.
I think you're right, but the two collide over the question of whether police have the right to be able to access your stuff, or merely the right to try to access it.
In the past, if you put evidence in a safe and refused to open it, the police could crack it, drill it, cut it open, etc. if all else failed.
Modern technology allows wide access to the equivalent of a perfectly impregnable safe. If the police get a warrant for your files, but your files fundamentally cannot be read without your cooperation, what then?
It comes down to three options: accept this possibility and do without the evidence; make it legally required to unlock the files, with a punishment at least as severe as you're facing for the actual crime; or outlaw impregnable safes.
There doesn't seem to be any consensus yet about which approach is correct. We see all three in action in various places.