"""Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in MN, CO, and WA since their founding in the 1850s, it seems quite unlikely that these recent changes would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?"""
This, a thousand times this.
I was struck with the same idea in the past. Law should not be 100% enforced, or it will be a dystopia. I wouldn't want to live in a world were the Grateful Dead couldn't do any drugs, teenagers could never drink a beer, nobody could express himself with a graffiti in a drab wall, no child that wants to be a graphic designer could ever pirate Photoshop, being a few months less or more than the legal age to date sends you off as a molester, playing a different region DVD lands you to jail, and a million other things...
This is why there should be fewer laws, with proper penalties for those laws. Many of our laws are designed to prevent us from doing worse things.
Imagine driving on a residential street at 60 mph. That in and of itself is not a problem (other than noise), but hitting something at that speed most certainly is, especially in a neighborhood. Likewise, drunk driving is not a problem until you hit someone or crash yourself. Not coming to a complete stop at a 4-way stop sign. (all traffic examples, sorry)
Those traffic behaviors are not destructive, until something goes wrong. So if we reduce the law count but increase penalties, we're on the right track. For instance, if we really want to stop the effects of drunk driving, we have 30 days jail time for the first offense.
I think that if we had the proper (minimum) set of laws, then we should have no problem with 100% enforcement.
Now, on the issue of privacy, actually achieving 100% enforcement would be impossible without a complete surveillance state (or zero laws, but this is the trivial case).
We do have the power to change the direction of this country, and the author of the article points to gay marriage and pot use to champion this idea of liberty. But the author also points at the sheer scope of federal law as a huge problem. If the government has a problem with you, they can (probably) put you behind bars -- and this is a problem indeed.
So how should you vote? Vote for candidates who want to reduce the burden of government on the people and enhance personal freedom. I contend that gay marriage wouldn't even be an issue if the government weren't involved in marriage in the first place (and it shouldn't be). The Left loves tearing down the moral codes of previous generations, claiming bigotry, homophobia, etc., but it also loves to build up government in a huge way. The Republicans, unfortunately, have lost the way of small government, but I believe they are a better hope than the Dems, in the long run.
Your idea simply doesn't work, because people are terrible at evaluating risk and consequences. For example, say we abolished all the traffic laws and said that drivers would be responsible for any damage they cause. You'd end up with less experienced drivers doing 80mph through a residential area, since there's no speed limit. The penalty for their poor judgement is a dead kid who happened to chase a ball. But since this "seems" like a less likely event, the driver doesn't worry, until its too late.
We experimented with lax traffic laws, and accidents were far more common per mile driven than they are today.
One thing with the 100% enforcement principle is that the majority of the laws being overturned today are those that never should have existed in the first place, because they were legislating morals where behavior never hurt anyone else besides their "beliefs". Any behavior that doesn't cause harm to another human being (which can ethically be argued to include oneself or not, but the former makes things much more complicated) should not be illegal. Behaviors proven to cause harm to other human beings (like the drunk driving you suggest), even if unintentional, have the effect of high likelihood of harm to others, and are also valid. Criminalize and legislate away things that harm others. And you need the ability to scientifically verify direct harm or exceedingly high correlations between behavior and harm to outlaw or regulate some behavior.
That means public nudity is legal, nothing about same sex should exist, you can smoke whatever you want (unless it kills you, or permanently maims you, which is why I think self-harm being legal is acceptable, and you should only criminalize the acts of harming others) but not be mentally compromised in public, you can grow whatever you want, you can bear firearms but not take them in public (unless unloaded), you would set speed limits to the first standard deviation of the average speed of a road (ie, the bounds of safety) rather than some arbitrary unrealistic number that causes everyone to speed, etc.
I mean, hell, you could make this very simple in what is criminal:
* Do not directly endanger others excessively through reckless behavior or use of dangerous tools.
* Do not actively hurt another through physical or excessive emotional violence (the latter would have to be extended mental trauma, not just calling someone a name).
And there you go. The first needs a jury to decide if it is a true endangerment in certain conduct, the latter is pretty straightforward, and it only gets murky if you consider ones ability to self-harm being outlawed, which makes a lot of behavior illegal.
Trying to extend them to animals gets complicated, but I figure the distinction is the act of causing pain and suffering vs killing for function. IE, don't endanger or harm other animals unless for the purposes of harvesting resources from them, and only do so causing as little suffering as possible, and that you can't "harvest" an animal owned by someone else (ie, don't murder your neighbors dog saying you wanted to eat dog steaks).
That´s the worst angle to look at this issue, though. It´s the way a white boy from a 1st world country would look at it.
Having many laws and inneficient law enforcement is the recipe for disaster. You just get corruption and lack of isonomy (poor people get jail, rich people get a bail for stupid crimes). Come to Brazil and marvel at the result of your theory. Police is inefficient, rich people get away from murder, and when they catch a poor criminal they execute for banal crimes (e.g., drug posession) with the understanding the judiciary doesn´t work.
What you want is less bogus laws around individual liberties rather than less law enforcement.
This is exactly the scenario I was trying to describe. In a world where we're all technically violating the law at some point, and where we're all being monitored intensively, then it's essentially up to those in power to "decide" who is punished and who isn't, without any real standard of measure. In that world, it seems pretty clear who ends up in jail and who doesn't. ACAB.
Conversely, if we lived in the same world of intensive surveillance, but where law enforcement was instead 100% efficient, we wouldn't have the often valuable ability to break the law.
It's possible to say that we should have better laws, or different laws, or only the "right" laws. But we don't actually have any agency over that (or to the extent that we do, it's often a result of breaking those laws). What we do have some agency over is the internet, and the technical means to stymie surveillance.
It is a terrible way to look at it, even if you're white, because you can always be the wrong kind of white person.
Where I grew up, kids on the hockey team, or whose dad owned the car dealership, would repeatedly get away with drunk driving and beating up their girlfriends, whereas poor kids were regularly taken down to the station for skateboarding, even though there were no laws against it.
>Having many laws and inneficient law enforcement is the recipe for disaster. You just get corruption and lack of isonomy (poor people get jail, rich people get a bail for stupid crimes). Come to Brazil and marvel at the result of your theory.
Those are not the results of "my theory". Heck that's not my theory either!
First, who said anything about "many laws"? I'm also against having too many laws.
Second, inefficiency != lack of isonomy. Or rather, it can lead to random lack of isonomy (ie. whether rich or poor, colored or not) -- which is not the same as the situation you describe, which is about inequality of law enforcement between rich and poor.
For example, if the police cannot demand a drug testing, then neither rich nor poor can be found with 100% certainty after having taken some. If the police cannot demand your ISP records, then they have a harder time enforcing 100% crackdown on piracy, whether you are rich or poor etc etc.
I was talking about "less efficiency", in the sense of being against giving those kind of "enablers" (which make 100% enforcement a closer possibility) to the police.
Not in favour of discriminating between rich and poor.
>What you want is less bogus laws around individual liberties rather than less law enforcement.
That's good too, but my point was another. That even for good laws, total enforcement of them would make a nightmarish situation. A couple of examples:
1) I wouldn't want everybody to have free reign to spray paint anything they wish.
But I'd like for people determined and willing to express something to be able to do it, even if it means I also have to stand some people that just spray BS tags.
2) I wouldn't want all people to go 150 miles on the highway whenever they like. But if the road is empty, it's straight for miles, and you have a nice car, I wouldn't like people to not be able to step on it for some innocent fun.
In this case, fines and speed cops are OK. But not devices like "compulsory speed control" on all cars, or "total speed radar tracking" on all roads, which would enable something like 100% enforcement of the speed limit.
So, when I talk about less "efficiency", I mean not enabling the police to the point of it being a total control state for every aspect of people's lives.
A lot of the times, some of the improvements to society, art, morals, etc, come by breaking the law. Rosa Parks, IIRC, broke the law that day, too.
I feel kind of divided on this... I mostly agree, but we also need to think about the consequences of selective enforcement. Cannabis-related arrests, for example, seem to be disproportionately focused on people of color, which may have softened the perceived damage of cannabis prohibition among whites. In other words: we can get away with it, so it's not really a big deal that it's still illegal.
Again, I'm not saying I want a 100% effective police state, but these are problems we have to grapple with. The salience of an issue will often depend on how much it affects you personally. Selective enforcement may diminish the motivation to protest unfair laws within populations that tend to escape said enforcement. In fact, most of the things you mentioned probably shouldn't be crimes to begin with, but I bet many people don't feel strongly enough to protest them because they assume most people can break those laws without punishment. Some people aren't so lucky though.
>I feel kind of divided on this... I mostly agree, but we also need to think about the consequences of selective enforcement.
Oh, I agree. I wasn't advocating selective enforcement. Just less EFFICIENT enforcement.
That is, that the police/government should not be allowed the means (even if they were available) to suppress crime 100% or even 90%.
Even for crimes we all agree are abhorable, like murder. I wouldn't trade freedom and privacy etc to have some way to prevent murders (from current surveillance to some futuristic chip implant in your head to prevent you from committing it). I'd rather live with some potential danger, than with several leashes.
In fact I believe laws should be designed to require selective enforcement. It's the only way to make the laws as simple and concise as they need to be.
Snowden is a great example of this. He demonstrably has broken the law, the law itself has a valid purpose.
Without selective enforcement he is in for a heap of shit because how do you design a law ahead-of-time that accounts for every possible nuance of how the greater public good might outweigh the risk to national security of analysts routinely disclosing classified information? We here on HN can't even design websites and programs that are secure and the computers do exactly what we tell them do, the legal code has to deal both with human agents who screw up and smart individuals looking for loopholes.
But with selective enforcement we can keep the law simple: "Don't leak classified information", and then allow for public outcry (or common sense) to prosecutors or the POTUS to ensure that he's either not tried, or even has an eventual sentence reduced or commuted.
Even now we live in a country where the police routinely don't 100% enforce the law even without invasive oversight, so it's obvious that merely having the police know about lawbreaking alone doesn't inevitably lead to trouble; oftentimes they care even less than the public does as it results in more paperwork for them.
Aristotle advised that laws should cover the general case and judges the particular. Hence the saying, "Hard cases make bad law." There is always a need to interpret. So the computerization of guilt or even "fishing" is very scary. Privacy is a buffer that helps build "selective enforcement" into any law that gets made.
We know that in the civil sphere getting sued is so bad it often doesn't matter whether you win or lose: the mere threat is enough to compel or punish. Likewise in the criminal sphere, people often settle rather than fight, which would mean bankruptcy and the risk of worse jail time. Now imagine in the criminal sphere if a computer could look at everything you wrote and raise a flag every time something looked suspicious. It's important to have a buffer, some kind of resistance that must be overcome before subjecting people to that. Hence the Fourth Amendment.
The term "selective enforcement" seems to imply that laws are enforced at the whim of the enforcers, which strikes me as an undesirable property of a legal system. It seems to me that selective enforcement, if present at all, should work the other way around: occasionally choosing to acquit, rather than occasionally choosing to enforce.
As soon as you go that route though you have to admit that the purpose of the law is to punish people for the crime of being infamous and nothing else really matters.
Maybe that is a tradeoff we should make. I am not yet convinced. My concern is that as soon as you say "let's make this flexible" you ensure that we can find something to charge people with if we want.
The Chinese experimented with strict enforcement in the Qin Dynasty, following the philosophy of Han Feizi (Legalism). It sounds like it was a big failure. I'm sure there have been other such experiments. The Law is not a computer program.
The Law is full of legacy cruft, and is based on philosophies that largely predate empiricism. Has there ever been an attempt to design a legal system based on modern engineering principles? Laws are as much about systems as about people. When you want to understand people you might rely on a politician, but to understand systems you should rely on engineers.
>no child that wants to be a graphic designer could ever pirate Photoshop
More Gimp users? ;)
But on a serious note, I completely agree with you. Perfect, law-following society will not have any social progress.
Laws are not perfect, and they will never be. But some people often treat them like they are. They prefer following laws instead of using their brain to decide what's wrong and what's right, and it's really dangerous to society.
Laws are based on morals, and what people think is right thing to do, not the other way around.
This sounds extremely common sense, but I've met too many people who do not seem to understand this.
I get the point he is trying to make, but my problem with this
argument is that it seems to be based on an idea that the default is
that a thing is illegal until a law explicitly allows it, which is
contrary to the way I've always understood things to be.
In other words, in some (perhaps distant) past, marijuana was not
illegal until a legislator decided to pass a law prohibiting its use.
“I now have absolute proof that smoking even one marijuana cigarette is equal in brain damage to being on Bikini Island during an H-bomb blast.”
- Ronald Reagan
Marijuana prohibition was pushed by Reagan because he didn´t liked hippies, not based on anything palpable.
Problem is not law enforcement, it´s the way bogus legislation gets pushed on "democracy" without direct involvement of the people.
it seems to be based on an idea that the default is that a thing is illegal until a law explicitly allows it.
I didn't get that idea at all, and I think you are misreading it. Many examples are given of things that recently were or still are explicitly illegal.
This ties into what Nassim Taleb says about fragility and "antifragility" -- a society that allows certain transgressions (to a degree) can be more robust and healthier. Arguably, we have that now. For example, selective enforcement of the law when celebrities and rich, influential people commit certain offenses.
Insignificant example but very annoying to me nonetheless: my last two times using PayByPhone for parking in San Francisco ended up with two tickets, one timed 1 minute following expiration and the other, 2 minutes. I can only suspect that usage of PayByPhone is placing a big fat bullseye on your car for ticketing.
The lawyer only ever saw cases that got to the point of needing a lawyer. Police exercise discretion as part of their job and I have trouble believing that silence (and the suspicion it creates) always pays off.
Example: the neighbors see/hear you having rough sex with your wife and report it as abuse. The police knock on the door, you have two options:
A) Explain (better: let your wife explain) that the neighbors probably heard you playing around and promise to be more discreet in the future. The police agree that more discretion = better and leave.
B) Wall of silence. The police take you in just to be sure. Your wife tries to testify in your favor at the trial but everyone thinks she's just making excuses for an actually abusive boyfriend (because that happens). Your life is ruined by the conviction, maybe her life is too. Even if you don't get convicted, rumors will spread and your time and money will be wasted on legal matters.
Am I being naive or was the lawyer overstating his argument? Strategy A is strictly worse than B if the case goes to court, but that still means that B could be the better strategy before you've been arrested.
It surprises me that many people, and even officials say "let us know everything you say or do, if you have nothing to hide", when the very first thing the police tell you when they arrest you is:
"Anything you say, can and will be used against you".
And people are still not freaked out about having the government know everything they've ever said or done? I think the problem is most people just don't realize this or don't think about the type of abuses that this could create.
> And people are still not freaked out about having the government know everything they've ever said or done?
The part you left out of the quote was "used against you, in a court of law". Even if NSA should find info on people, it won't be admissible in a court of law against U.S. citizens essentially by definition, so from the POV of a random guy on the street it's a question of whether the nerd sitting at the NSA console is worse than the nerd sitting at the GMail ops room console.
FBI would probably be a bigger worry, but no one seems to care about them for years now.
This is perhaps a bad example then. I was referencing James Duane, a law professor, who's quote was:
"People have been convicted in federal court for violating this statute because they brought back a 'boney fish' from Honduras, not knowing that Honduran law, not American law, but Honduran law forbade the possession of the boney fish. People have been been convicted under this law because they were found in possession of what's known as a short lobster."
In general it seems to me that there are a lot of laws, many of them are confusing and esoteric, and their enforcement is often selective. I've seen court cases where people were acting 'normally' under constant surveillance, and it doesn't go well.
However, I'm actually more interested in the question of how celebrated legal victories would probably not have been possible without the ability to break the law.
Bringing Kinder Surprise eggs into the US carries a fine of 2500 USD [1] per egg with it ...
How many eggs would one have to attempt to bring with you to the US before it becomes a jail-able offense? Never-mind that most import stores seem to have them in abundance and somehow get them past customs!
I seem to recall from a trivia-style book (of all things) that many states have insane laws still technically on the books. Things like men can't wear dresses on Friday or that all men on the streets must have hats.
So, undoubtedly we need to ensure our legal code is cleaned out of cruft like that.
But I would be careful of complaining about the selectivity of enforcement. Take our hero Snowden for example. He demonstrably broke the law, and even Schneier agrees that the law he broke has purpose.
Not that Snowden is going to be pardoned of his crimes (another form of selective enforcement, btw), but he wouldn't even have the possibility of escaping charges for his "crime" without the ability to apply common sense to peculiarities and circumstances of his case.
Indeed, most legal beagles I know of complain heavily about a different type of regime without selective enforcement: "Zero tolerance" policies in schools that result in insanely stupid punishments being meted out to schoolchildren. Does anyone else remember HN's reaction to the science student in Florida who "made a bomb" at school?
Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
This is not to say that government should be able to look at private data just because, or that people shouldn't have secrets.
But once you start envisioning people going so insane that they start rounding you up for things that you did which were perfectly fine at the time you did it, you are envisioning things which are pretty far beyond the protections of law and the Constitution anyways.
Or in other words, if things like PRISM could cause society to tear itself asunder in that way then obviously that program must die. But if society does tear itself asunder anyways, then PRISM would be the least of the peoples' worries, some theoretical U.S. secret police would be able to string you up on slights real or imagined, crimes that are completely fictitious, with or without PRISM.
There is absolutely no program that is "safe" to have in a situation that exceptional, so while I see why you would judge a program based on "Would you feel safe if the other Party had this program" (and we may very well fail the NSA's surveillance programs on this test alone), I don't see why you'd judge a program based on "Would you feel safe if the NKVD had this program".
I wouldn't feel safe if we were in any situation so exceptional that we had an NKVD at all. Despite all the complaints about the NSA, they do not have nearly all the elements of the NKVD (neighborhood informants, secret police, etc.), and it may very well be possible that through our separation of functions that NSA can do its job without inevitably bringing down the fabric of society.
> Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
California and a few other states love ignoring this, I believe there's even legislation going up for vote this week that criminalizes exactly this. Until the government is adequately constrainted by its contstituency, we will always have overreaches.
Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
Even if you can't be convicted in a court, there's still the potential for intimidation, coercion, and embarrassment due to past activities which were once acceptable but are no longer.
I was under the impression that federal crimes of this sort are only actionable if you are aware of the legality before it comes into your possession.
That would correlate with your statement that it isn't actually illegal, is that why? There are some crimes where it seems as though the public domain has enough knowledge that you should know better without being explicitly told so. But for something like an under-sized lobster, I think you should get a pass on not knowing.
This also presents a problem of enforcibility - will a law be enforced, and under what conditions, if it's a "silly law"? I think this is what really makes it important to have things to hide - you could be tried for what they find if they are pursuing you for other reasons.
In other words, I sure hope Edward Snowden doesn't have an under-sized lobster.
I think the US has begun to completely ignore what is known as "Mens Rea" for regulations such as this. While for something like Murder you have to have intended to commit the crime, many other crimes require no intent or prior knowledge. (Manslaughter, Child Pornography, Possession of Undersized Lobster as examples)
No that's a misunderstanding of the legal term of art "knowingly".
It is a legal maxim that ignorance of the law is no excuse. A law that has a mens rea (i.e. intent) of "knowingly" refers to some factual circumstance that is one of the elements of the crime.
An example from the New York state penal law:
"156.05 Unauthorized use of a computer.
A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization."
In this case the "knowingly" element is satisfied if you knew (or should have known) that you didn't not have authorization to access the computer, computer service, or computer network.
Similarly for possession statutes, the (sometimes implicit) knowingly element is satisfied if you knew you possessed the given item even if you had no idea possessing it was illegal. A situation where the knowingly element would not be satisfied, is if someone snuck the item into your luggage.
Thanks for the post Moxie! I always enjoy reading your stuff (and have you subscribed in my RSS feed). I think it's sad that many believe they 'have nothing to hide'. I've already seen it expressed online in response to things others have posted.
I think one thing I really wonder about that you somewhat touch upon is the fact that nearly everyone is carrying upon their person a GPS tracking device. I believe it not impossible the day will come where simply being in the area where a crime occurred is enough to open you to suspicion. Perhaps this has already happened.
A society without crime likely will be a stagnant society, one where there is not enough room for any fringes at all rather than just not that one fringe that we'd like to get rid off.
Imagine an organism that perfects the trick of error correction on genetic information. That organism would not suffer from some of the afflictions that come with imperfect genetic copying. But that organism would also instantly stop to evolve.
Excellent article. I am hearing far too often, from people who I thought were very well informed and intelligent, that "I have nothing to hide so why should I worry". It is troubling to me that more people do not see the very clear signs of trouble ahead if things do not change.
I love this article so much. It explains something that can be hard to grasp. It isn't immediately intuitive, but it's certainly so: without these nuances and flexibility, no progress can exist.
Or we could just do away with any felony that doesn't involve physically harming a person.
What about a felony where someone embezzles $500 million in taxpayer funds? Or knowingly sells defective vaccines to people who mercifully never actually catch ill?
but if everyone’s every action were being monitored, and everyone technically violates some obscure law at some time, then punishment becomes purely selective. Those in power will essentially have what they need to punish anyone they’d like, whenever they choose, as if there were no rules at all.
Could you not just subpoena the monitoring data that law enforcement had access to and make a 14th Amendment case with a quick SQL statement.
A democratically elected representative republic, specifically. I agree that you are correct in a pedantic sense, but our society is a "democratic society" in a more general, looser sense. Given the context of TFA, I think the usage is correct enough.
Moxie Marlinspike always surprises me with his clear and rigorous train of thought. His example of addressing same sex relationships and how even though they were illegal at a time shows why ominous surveillance comes at the expense of people's choices in lives.
"""Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in MN, CO, and WA since their founding in the 1850s, it seems quite unlikely that these recent changes would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?"""
This, a thousand times this.
I was struck with the same idea in the past. Law should not be 100% enforced, or it will be a dystopia. I wouldn't want to live in a world were the Grateful Dead couldn't do any drugs, teenagers could never drink a beer, nobody could express himself with a graffiti in a drab wall, no child that wants to be a graphic designer could ever pirate Photoshop, being a few months less or more than the legal age to date sends you off as a molester, playing a different region DVD lands you to jail, and a million other things...
This is why there should be fewer laws, with proper penalties for those laws. Many of our laws are designed to prevent us from doing worse things.
Imagine driving on a residential street at 60 mph. That in and of itself is not a problem (other than noise), but hitting something at that speed most certainly is, especially in a neighborhood. Likewise, drunk driving is not a problem until you hit someone or crash yourself. Not coming to a complete stop at a 4-way stop sign. (all traffic examples, sorry)
Those traffic behaviors are not destructive, until something goes wrong. So if we reduce the law count but increase penalties, we're on the right track. For instance, if we really want to stop the effects of drunk driving, we have 30 days jail time for the first offense.
I think that if we had the proper (minimum) set of laws, then we should have no problem with 100% enforcement.
Now, on the issue of privacy, actually achieving 100% enforcement would be impossible without a complete surveillance state (or zero laws, but this is the trivial case).
We do have the power to change the direction of this country, and the author of the article points to gay marriage and pot use to champion this idea of liberty. But the author also points at the sheer scope of federal law as a huge problem. If the government has a problem with you, they can (probably) put you behind bars -- and this is a problem indeed.
So how should you vote? Vote for candidates who want to reduce the burden of government on the people and enhance personal freedom. I contend that gay marriage wouldn't even be an issue if the government weren't involved in marriage in the first place (and it shouldn't be). The Left loves tearing down the moral codes of previous generations, claiming bigotry, homophobia, etc., but it also loves to build up government in a huge way. The Republicans, unfortunately, have lost the way of small government, but I believe they are a better hope than the Dems, in the long run.
Your idea simply doesn't work, because people are terrible at evaluating risk and consequences. For example, say we abolished all the traffic laws and said that drivers would be responsible for any damage they cause. You'd end up with less experienced drivers doing 80mph through a residential area, since there's no speed limit. The penalty for their poor judgement is a dead kid who happened to chase a ball. But since this "seems" like a less likely event, the driver doesn't worry, until its too late.
We experimented with lax traffic laws, and accidents were far more common per mile driven than they are today.
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One thing with the 100% enforcement principle is that the majority of the laws being overturned today are those that never should have existed in the first place, because they were legislating morals where behavior never hurt anyone else besides their "beliefs". Any behavior that doesn't cause harm to another human being (which can ethically be argued to include oneself or not, but the former makes things much more complicated) should not be illegal. Behaviors proven to cause harm to other human beings (like the drunk driving you suggest), even if unintentional, have the effect of high likelihood of harm to others, and are also valid. Criminalize and legislate away things that harm others. And you need the ability to scientifically verify direct harm or exceedingly high correlations between behavior and harm to outlaw or regulate some behavior.
That means public nudity is legal, nothing about same sex should exist, you can smoke whatever you want (unless it kills you, or permanently maims you, which is why I think self-harm being legal is acceptable, and you should only criminalize the acts of harming others) but not be mentally compromised in public, you can grow whatever you want, you can bear firearms but not take them in public (unless unloaded), you would set speed limits to the first standard deviation of the average speed of a road (ie, the bounds of safety) rather than some arbitrary unrealistic number that causes everyone to speed, etc.
I mean, hell, you could make this very simple in what is criminal:
* Do not directly endanger others excessively through reckless behavior or use of dangerous tools.
* Do not actively hurt another through physical or excessive emotional violence (the latter would have to be extended mental trauma, not just calling someone a name).
And there you go. The first needs a jury to decide if it is a true endangerment in certain conduct, the latter is pretty straightforward, and it only gets murky if you consider ones ability to self-harm being outlawed, which makes a lot of behavior illegal.
Trying to extend them to animals gets complicated, but I figure the distinction is the act of causing pain and suffering vs killing for function. IE, don't endanger or harm other animals unless for the purposes of harvesting resources from them, and only do so causing as little suffering as possible, and that you can't "harvest" an animal owned by someone else (ie, don't murder your neighbors dog saying you wanted to eat dog steaks).
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That´s the worst angle to look at this issue, though. It´s the way a white boy from a 1st world country would look at it.
Having many laws and inneficient law enforcement is the recipe for disaster. You just get corruption and lack of isonomy (poor people get jail, rich people get a bail for stupid crimes). Come to Brazil and marvel at the result of your theory. Police is inefficient, rich people get away from murder, and when they catch a poor criminal they execute for banal crimes (e.g., drug posession) with the understanding the judiciary doesn´t work.
What you want is less bogus laws around individual liberties rather than less law enforcement.
This is exactly the scenario I was trying to describe. In a world where we're all technically violating the law at some point, and where we're all being monitored intensively, then it's essentially up to those in power to "decide" who is punished and who isn't, without any real standard of measure. In that world, it seems pretty clear who ends up in jail and who doesn't. ACAB.
Conversely, if we lived in the same world of intensive surveillance, but where law enforcement was instead 100% efficient, we wouldn't have the often valuable ability to break the law.
It's possible to say that we should have better laws, or different laws, or only the "right" laws. But we don't actually have any agency over that (or to the extent that we do, it's often a result of breaking those laws). What we do have some agency over is the internet, and the technical means to stymie surveillance.
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It is a terrible way to look at it, even if you're white, because you can always be the wrong kind of white person.
Where I grew up, kids on the hockey team, or whose dad owned the car dealership, would repeatedly get away with drunk driving and beating up their girlfriends, whereas poor kids were regularly taken down to the station for skateboarding, even though there were no laws against it.
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>Having many laws and inneficient law enforcement is the recipe for disaster. You just get corruption and lack of isonomy (poor people get jail, rich people get a bail for stupid crimes). Come to Brazil and marvel at the result of your theory.
Those are not the results of "my theory". Heck that's not my theory either!
First, who said anything about "many laws"? I'm also against having too many laws.
Second, inefficiency != lack of isonomy. Or rather, it can lead to random lack of isonomy (ie. whether rich or poor, colored or not) -- which is not the same as the situation you describe, which is about inequality of law enforcement between rich and poor.
For example, if the police cannot demand a drug testing, then neither rich nor poor can be found with 100% certainty after having taken some. If the police cannot demand your ISP records, then they have a harder time enforcing 100% crackdown on piracy, whether you are rich or poor etc etc.
I was talking about "less efficiency", in the sense of being against giving those kind of "enablers" (which make 100% enforcement a closer possibility) to the police.
Not in favour of discriminating between rich and poor.
>What you want is less bogus laws around individual liberties rather than less law enforcement.
That's good too, but my point was another. That even for good laws, total enforcement of them would make a nightmarish situation. A couple of examples:
1) I wouldn't want everybody to have free reign to spray paint anything they wish. But I'd like for people determined and willing to express something to be able to do it, even if it means I also have to stand some people that just spray BS tags.
2) I wouldn't want all people to go 150 miles on the highway whenever they like. But if the road is empty, it's straight for miles, and you have a nice car, I wouldn't like people to not be able to step on it for some innocent fun.
In this case, fines and speed cops are OK. But not devices like "compulsory speed control" on all cars, or "total speed radar tracking" on all roads, which would enable something like 100% enforcement of the speed limit.
So, when I talk about less "efficiency", I mean not enabling the police to the point of it being a total control state for every aspect of people's lives.
A lot of the times, some of the improvements to society, art, morals, etc, come by breaking the law. Rosa Parks, IIRC, broke the law that day, too.
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I feel kind of divided on this... I mostly agree, but we also need to think about the consequences of selective enforcement. Cannabis-related arrests, for example, seem to be disproportionately focused on people of color, which may have softened the perceived damage of cannabis prohibition among whites. In other words: we can get away with it, so it's not really a big deal that it's still illegal.
Again, I'm not saying I want a 100% effective police state, but these are problems we have to grapple with. The salience of an issue will often depend on how much it affects you personally. Selective enforcement may diminish the motivation to protest unfair laws within populations that tend to escape said enforcement. In fact, most of the things you mentioned probably shouldn't be crimes to begin with, but I bet many people don't feel strongly enough to protest them because they assume most people can break those laws without punishment. Some people aren't so lucky though.
>I feel kind of divided on this... I mostly agree, but we also need to think about the consequences of selective enforcement.
Oh, I agree. I wasn't advocating selective enforcement. Just less EFFICIENT enforcement.
That is, that the police/government should not be allowed the means (even if they were available) to suppress crime 100% or even 90%.
Even for crimes we all agree are abhorable, like murder. I wouldn't trade freedom and privacy etc to have some way to prevent murders (from current surveillance to some futuristic chip implant in your head to prevent you from committing it). I'd rather live with some potential danger, than with several leashes.
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In fact I believe laws should be designed to require selective enforcement. It's the only way to make the laws as simple and concise as they need to be.
Snowden is a great example of this. He demonstrably has broken the law, the law itself has a valid purpose.
Without selective enforcement he is in for a heap of shit because how do you design a law ahead-of-time that accounts for every possible nuance of how the greater public good might outweigh the risk to national security of analysts routinely disclosing classified information? We here on HN can't even design websites and programs that are secure and the computers do exactly what we tell them do, the legal code has to deal both with human agents who screw up and smart individuals looking for loopholes.
But with selective enforcement we can keep the law simple: "Don't leak classified information", and then allow for public outcry (or common sense) to prosecutors or the POTUS to ensure that he's either not tried, or even has an eventual sentence reduced or commuted.
Even now we live in a country where the police routinely don't 100% enforce the law even without invasive oversight, so it's obvious that merely having the police know about lawbreaking alone doesn't inevitably lead to trouble; oftentimes they care even less than the public does as it results in more paperwork for them.
Aristotle advised that laws should cover the general case and judges the particular. Hence the saying, "Hard cases make bad law." There is always a need to interpret. So the computerization of guilt or even "fishing" is very scary. Privacy is a buffer that helps build "selective enforcement" into any law that gets made.
We know that in the civil sphere getting sued is so bad it often doesn't matter whether you win or lose: the mere threat is enough to compel or punish. Likewise in the criminal sphere, people often settle rather than fight, which would mean bankruptcy and the risk of worse jail time. Now imagine in the criminal sphere if a computer could look at everything you wrote and raise a flag every time something looked suspicious. It's important to have a buffer, some kind of resistance that must be overcome before subjecting people to that. Hence the Fourth Amendment.
The term "selective enforcement" seems to imply that laws are enforced at the whim of the enforcers, which strikes me as an undesirable property of a legal system. It seems to me that selective enforcement, if present at all, should work the other way around: occasionally choosing to acquit, rather than occasionally choosing to enforce.
"Act as if the maxim of thy action were to become by thy will a universal law of nature. So act that your principle of action might safely be made a law for the whole world." (https://en.wikiquote.org/wiki/Immanuel_Kant#Groundwork_of_th...)
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As soon as you go that route though you have to admit that the purpose of the law is to punish people for the crime of being infamous and nothing else really matters.
Maybe that is a tradeoff we should make. I am not yet convinced. My concern is that as soon as you say "let's make this flexible" you ensure that we can find something to charge people with if we want.
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The Chinese experimented with strict enforcement in the Qin Dynasty, following the philosophy of Han Feizi (Legalism). It sounds like it was a big failure. I'm sure there have been other such experiments. The Law is not a computer program.
The Law is full of legacy cruft, and is based on philosophies that largely predate empiricism. Has there ever been an attempt to design a legal system based on modern engineering principles? Laws are as much about systems as about people. When you want to understand people you might rely on a politician, but to understand systems you should rely on engineers.
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>no child that wants to be a graphic designer could ever pirate Photoshop
More Gimp users? ;)
But on a serious note, I completely agree with you. Perfect, law-following society will not have any social progress.
Laws are not perfect, and they will never be. But some people often treat them like they are. They prefer following laws instead of using their brain to decide what's wrong and what's right, and it's really dangerous to society.
Laws are based on morals, and what people think is right thing to do, not the other way around.
This sounds extremely common sense, but I've met too many people who do not seem to understand this.
I get the point he is trying to make, but my problem with this argument is that it seems to be based on an idea that the default is that a thing is illegal until a law explicitly allows it, which is contrary to the way I've always understood things to be.
In other words, in some (perhaps distant) past, marijuana was not illegal until a legislator decided to pass a law prohibiting its use.
“I now have absolute proof that smoking even one marijuana cigarette is equal in brain damage to being on Bikini Island during an H-bomb blast.” - Ronald Reagan
Marijuana prohibition was pushed by Reagan because he didn´t liked hippies, not based on anything palpable.
Problem is not law enforcement, it´s the way bogus legislation gets pushed on "democracy" without direct involvement of the people.
it seems to be based on an idea that the default is that a thing is illegal until a law explicitly allows it.
I didn't get that idea at all, and I think you are misreading it. Many examples are given of things that recently were or still are explicitly illegal.
If you want to read up on when Marijuana was made illegal, you can start here http://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_th... but I'm not sure of the relevance.
This ties into what Nassim Taleb says about fragility and "antifragility" -- a society that allows certain transgressions (to a degree) can be more robust and healthier. Arguably, we have that now. For example, selective enforcement of the law when celebrities and rich, influential people commit certain offenses.
Insignificant example but very annoying to me nonetheless: my last two times using PayByPhone for parking in San Francisco ended up with two tickets, one timed 1 minute following expiration and the other, 2 minutes. I can only suspect that usage of PayByPhone is placing a big fat bullseye on your car for ticketing.
> [...] teenagers could never drink a beer, [...]
Or you could just have decent laws. Most European states get the alcohol laws mostly right.
Obviously this is a strawman. Even North Korea does not have 100% compliance.
No, it's a thought experiment.
If you haven't seen the video Moxie mentions in the opening couple paragraphs, "don't talk to the police," I HIGHLY recommend watching it.
Not only is it informative, it is fascinating and very well delivered.
http://www.youtube.com/watch?v=6wXkI4t7nuc
The lawyer only ever saw cases that got to the point of needing a lawyer. Police exercise discretion as part of their job and I have trouble believing that silence (and the suspicion it creates) always pays off.
Example: the neighbors see/hear you having rough sex with your wife and report it as abuse. The police knock on the door, you have two options:
A) Explain (better: let your wife explain) that the neighbors probably heard you playing around and promise to be more discreet in the future. The police agree that more discretion = better and leave.
B) Wall of silence. The police take you in just to be sure. Your wife tries to testify in your favor at the trial but everyone thinks she's just making excuses for an actually abusive boyfriend (because that happens). Your life is ruined by the conviction, maybe her life is too. Even if you don't get convicted, rumors will spread and your time and money will be wasted on legal matters.
Am I being naive or was the lawyer overstating his argument? Strategy A is strictly worse than B if the case goes to court, but that still means that B could be the better strategy before you've been arrested.
> Your wife tries to testify in your favor at the trial...
Why would she do that? The only way you've gotten this far is because she's pressing charges.
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B is still obviously the better option. Providing evidence that ratchets only one way can never help.
They'd never be able to convict if the both of you refused to testify. There'd be no evidence.
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It surprises me that many people, and even officials say "let us know everything you say or do, if you have nothing to hide", when the very first thing the police tell you when they arrest you is:
"Anything you say, can and will be used against you".
And people are still not freaked out about having the government know everything they've ever said or done? I think the problem is most people just don't realize this or don't think about the type of abuses that this could create.
> And people are still not freaked out about having the government know everything they've ever said or done?
The part you left out of the quote was "used against you, in a court of law". Even if NSA should find info on people, it won't be admissible in a court of law against U.S. citizens essentially by definition, so from the POV of a random guy on the street it's a question of whether the nerd sitting at the NSA console is worse than the nerd sitting at the GMail ops room console.
FBI would probably be a bigger worry, but no one seems to care about them for years now.
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Strongest possible agree; this is a great video. Also:
http://www.youtube.com/watch?v=yqMjMPlXzdA
Note that 16 USC § 3373 makes it pretty clear that you cannot in fact be sent to prison simply for possessing an undersized lobster.
This is perhaps a bad example then. I was referencing James Duane, a law professor, who's quote was:
"People have been convicted in federal court for violating this statute because they brought back a 'boney fish' from Honduras, not knowing that Honduran law, not American law, but Honduran law forbade the possession of the boney fish. People have been been convicted under this law because they were found in possession of what's known as a short lobster."
In general it seems to me that there are a lot of laws, many of them are confusing and esoteric, and their enforcement is often selective. I've seen court cases where people were acting 'normally' under constant surveillance, and it doesn't go well.
However, I'm actually more interested in the question of how celebrated legal victories would probably not have been possible without the ability to break the law.
Bringing Kinder Surprise eggs into the US carries a fine of 2500 USD [1] per egg with it ...
How many eggs would one have to attempt to bring with you to the US before it becomes a jail-able offense? Never-mind that most import stores seem to have them in abundance and somehow get them past customs!
[1] http://www.komonews.com/news/offbeat/Seattle-men-busted-at-C...
I seem to recall from a trivia-style book (of all things) that many states have insane laws still technically on the books. Things like men can't wear dresses on Friday or that all men on the streets must have hats.
So, undoubtedly we need to ensure our legal code is cleaned out of cruft like that.
But I would be careful of complaining about the selectivity of enforcement. Take our hero Snowden for example. He demonstrably broke the law, and even Schneier agrees that the law he broke has purpose.
Not that Snowden is going to be pardoned of his crimes (another form of selective enforcement, btw), but he wouldn't even have the possibility of escaping charges for his "crime" without the ability to apply common sense to peculiarities and circumstances of his case.
Indeed, most legal beagles I know of complain heavily about a different type of regime without selective enforcement: "Zero tolerance" policies in schools that result in insanely stupid punishments being meted out to schoolchildren. Does anyone else remember HN's reaction to the science student in Florida who "made a bomb" at school?
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Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
This is not to say that government should be able to look at private data just because, or that people shouldn't have secrets.
But once you start envisioning people going so insane that they start rounding you up for things that you did which were perfectly fine at the time you did it, you are envisioning things which are pretty far beyond the protections of law and the Constitution anyways.
Or in other words, if things like PRISM could cause society to tear itself asunder in that way then obviously that program must die. But if society does tear itself asunder anyways, then PRISM would be the least of the peoples' worries, some theoretical U.S. secret police would be able to string you up on slights real or imagined, crimes that are completely fictitious, with or without PRISM.
There is absolutely no program that is "safe" to have in a situation that exceptional, so while I see why you would judge a program based on "Would you feel safe if the other Party had this program" (and we may very well fail the NSA's surveillance programs on this test alone), I don't see why you'd judge a program based on "Would you feel safe if the NKVD had this program".
I wouldn't feel safe if we were in any situation so exceptional that we had an NKVD at all. Despite all the complaints about the NSA, they do not have nearly all the elements of the NKVD (neighborhood informants, secret police, etc.), and it may very well be possible that through our separation of functions that NSA can do its job without inevitably bringing down the fabric of society.
> Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
California and a few other states love ignoring this, I believe there's even legislation going up for vote this week that criminalizes exactly this. Until the government is adequately constrainted by its contstituency, we will always have overreaches.
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Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
Even if you can't be convicted in a court, there's still the potential for intimidation, coercion, and embarrassment due to past activities which were once acceptable but are no longer.
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I was under the impression that federal crimes of this sort are only actionable if you are aware of the legality before it comes into your possession.
That would correlate with your statement that it isn't actually illegal, is that why? There are some crimes where it seems as though the public domain has enough knowledge that you should know better without being explicitly told so. But for something like an under-sized lobster, I think you should get a pass on not knowing.
This also presents a problem of enforcibility - will a law be enforced, and under what conditions, if it's a "silly law"? I think this is what really makes it important to have things to hide - you could be tried for what they find if they are pursuing you for other reasons.
In other words, I sure hope Edward Snowden doesn't have an under-sized lobster.
I believe child porn is the exception. Mere possession even if you didn't know it's illegal (or even unknowing possession) seems to be a crime.
(IANAL, especially not with respect to anything underage.)
I think the US has begun to completely ignore what is known as "Mens Rea" for regulations such as this. While for something like Murder you have to have intended to commit the crime, many other crimes require no intent or prior knowledge. (Manslaughter, Child Pornography, Possession of Undersized Lobster as examples)
http://lawcomic.net/guide/?p=173 (A more entertaining description)
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No that's a misunderstanding of the legal term of art "knowingly".
It is a legal maxim that ignorance of the law is no excuse. A law that has a mens rea (i.e. intent) of "knowingly" refers to some factual circumstance that is one of the elements of the crime.
An example from the New York state penal law:
"156.05 Unauthorized use of a computer. A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization."
In this case the "knowingly" element is satisfied if you knew (or should have known) that you didn't not have authorization to access the computer, computer service, or computer network.
Similarly for possession statutes, the (sometimes implicit) knowingly element is satisfied if you knew you possessed the given item even if you had no idea possessing it was illegal. A situation where the knowingly element would not be satisfied, is if someone snuck the item into your luggage.
What if the lobster is under-aged?
Then you should make sure you don't have sex with it, or, if you do, don't write emails about that or talk on the phone about it.
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This fuckin' guy.
Hey, what do you want from me? It really isn't a crime to possess an undersized lobster. Don't blame me, blame the US Code.
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Thanks for the post Moxie! I always enjoy reading your stuff (and have you subscribed in my RSS feed). I think it's sad that many believe they 'have nothing to hide'. I've already seen it expressed online in response to things others have posted.
I think one thing I really wonder about that you somewhat touch upon is the fact that nearly everyone is carrying upon their person a GPS tracking device. I believe it not impossible the day will come where simply being in the area where a crime occurred is enough to open you to suspicion. Perhaps this has already happened.
On the flip side, it would revolutionize the alibi-generation process (both legitimate and illegitimate)!
A society without crime likely will be a stagnant society, one where there is not enough room for any fringes at all rather than just not that one fringe that we'd like to get rid off.
Imagine an organism that perfects the trick of error correction on genetic information. That organism would not suffer from some of the afflictions that come with imperfect genetic copying. But that organism would also instantly stop to evolve.
Excellent article. I am hearing far too often, from people who I thought were very well informed and intelligent, that "I have nothing to hide so why should I worry". It is troubling to me that more people do not see the very clear signs of trouble ahead if things do not change.
I love this article so much. It explains something that can be hard to grasp. It isn't immediately intuitive, but it's certainly so: without these nuances and flexibility, no progress can exist.
Or we could just do away with any felony that doesn't involve physically harming a person.
What about a felony where someone embezzles $500 million in taxpayer funds? Or knowingly sells defective vaccines to people who mercifully never actually catch ill?
right, because that's what everyone is in jail for.
This presentation that Moxie gave at defCon 18 is really excellent:
https://www.youtube.com/watch?v=eG0KrT6pBPk
but if everyone’s every action were being monitored, and everyone technically violates some obscure law at some time, then punishment becomes purely selective. Those in power will essentially have what they need to punish anyone they’d like, whenever they choose, as if there were no rules at all.
Could you not just subpoena the monitoring data that law enforcement had access to and make a 14th Amendment case with a quick SQL statement.
>The cornerstone of liberal democracy is...
For the love of god or anything you find holy, STOP insisting we live in a democracy!
I stop reading any article that asserts we live in a democracy or should strive to live in one.
We live in a republic. http://www.c4cg.org/republic.htm
[edit for auto-complete]
> We live in a republic
Republic refers to any form of government which is not a monarchy.
The US is a republic -- specifically, a federal republic -- it is also a democracy -- specifically a representative democracy.
The whole "The US is not a democracy, its a republic" thing makes as much as saying "16 isn't a perfect square, its an even number."
For the love of god or anything you find holy, STOP insisting that only direct democracy counts as democracy!
Even being succinct and saying "a representative democracy" doesn't imply a form of government which is constrained by a constitution.
Saying democracy instead of republic just undermines the common understanding of how our government was setup to function.
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We live in a republic
A democratically elected representative republic, specifically. I agree that you are correct in a pedantic sense, but our society is a "democratic society" in a more general, looser sense. Given the context of TFA, I think the usage is correct enough.
We live in a republic, but is a republic not extremely similar to a representative democracy?
"Republic" is essentially orthogonal to "representative democracy".
The United States of America has a government which is both a republic (and, more specifically, a federal republic) and a representative democracy.
There are republics that aren't any kind of democracy, and representative democracies that are not republics (e.g., the United Kingdom.)
I thought about commenting on that, but I knew what he meant.
I wonder: does increasingly weak enforcement lead to increasing complacency about the law in question?
Moxie Marlinspike always surprises me with his clear and rigorous train of thought. His example of addressing same sex relationships and how even though they were illegal at a time shows why ominous surveillance comes at the expense of people's choices in lives.
"The best way to get a bad law repealed is to enforce it strictly."
― Abraham Lincoln
"All human beings have three lives: public, private, and secret."
Gabriel García Márquez
I agree...