I think its okay that we expect cops to be good _after_ the rule exists, rather than set the bad guys free to (checks notes) incentivize cops to take our new rule super seriously.
It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality. That is that we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand.
That is why many people think this should be tossed out. Ignorance that an action was a crime is almost never an acceptable defense, so it should not be an acceptable offense either.
> we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand.
I'm not trying to be funny, or aggressive, or passive aggressive, seriously: there's two entities in the discussion, the cops, and the person with a photograph with a hash matching child porn. I'm phrasing that as passively as possible because I want to avoid the tarpit of looking like I'm appealing to emotion:
Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash?
> It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality...That is why many people think this should be tossed out.
Of course, I could be missing something here because I'm making a hash of parsing the first bit. But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case.
> Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash?
This is literally the doctrine behind the good faith argument and qualified immunity. If they have not been informed that this specific act, done in this specific way is not allowed then it is largely permissible.
A stupid but equivalent defense from the possessor would be “it’s in Googles possession, not mine, so I had a good faith belief that I did not possess the files”. It’s clearly wrong based on case law, but I wouldn’t expect the average person to have a great grasp of how possession works legally (nor would I claim to be an expert on it).
This is effectively what the good faith doctrine establishes for police, even though they really ought to at least have an inkling given that the law is an integral part of their jobs. As long as they can claim to be sufficiently stupid, it is permissible. That is not extended to the defense, for whom stupidity is never a defense.
> But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case.
Acting in good faith would be getting a warrant regardless, because the issue is not that time-sensitive and there are clear ambiguities here. They acted brashly under the assumption that if they were wrong, they could claim stupidity. It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search.
It is, yet again, rules for thee but not for me. Frankly, with the asymmetry of responsibility and experience with laws, the police should need to clear a MUCH higher bar to come within throwing distance of “good faith”.
>This is literally the doctrine behind the good faith argument and qualified immunity. If they have not been informed that this specific act, done in this specific way is not allowed then it is largely permissible.
For criminal actions an entirely different set of standards exists, and has longstanding legal precedent. Two in particular: mens rea and strict liability
Right, and my argument is that the double standard itself is not just. I do know as a matter of practicality that I don't really have a legal leg to stand on here; the law is what judges say it is, and they've said it is the way it currently is.
I do not find "the justice system treats them differently, therefore they are different and the justice system is just in treating them differently" to be a compelling argument that the double standard is just. It's just a circular appeal to authority; any behavior by the justice system is morally permissible under that idea, simply because the justice system declares it to be so.
My question is how is it just that differing standards apply? And furthermore, how is it just that that leniency is granted to the benefactor of a severe power imbalance? Unconstitutional search and seizure could absolutely be a crime; in this situation, a citizen would likely be charged under the CFAA, which is a crime.
Those are only nominally different, insofar as the justice system chooses to call some acts one and some acts another. It doesn't speak to the nature of the act, only what we choose to classify it as.
I.e. unconstitutional searches could be criminal activity if the judiciary just decides to classify it differently.
There are certainly differences in the nature of the act that we could talk about, but how the judiciary classifies them is only a nominal difference.
Idk why you keep saying way out there stuff, then repeating back mundane stuff.
Yeah, the difference between a bad thing and a good thing is what judges say.
No, there is a difference bigger than "nominal", which means in name only. Go out on the street and try explaining why someone having child porn, and cops handed a subscriber name + child porn image by Google exactly the same thing, there's only a "nominal" difference.
I'm genuinely at a loss for how this doesn't make sense. "Crime" is absolutely a nominal status. Things can be made into a crime or no longer a crime arbitrarily. Abortion was legal across the US, and then it wasn't. Abortion didn't change at all, but how we refer to it did. Ditto for possession/distribution of alcohol, some kinds of firearms, slavery, etc, etc.
I am not arguing that possession of child pornography is good or permissible, my point is that the things police do are only "police actions" rather than "crimes" because we choose to refer to them as such. We could pass a law tomorrow that says unlawful search and seizure is a crime, and then the "crime" label would apply to the police as well. The specific crime would be different, but both would be categorically "crime". It is undesirable to make possession of CP by police a crime because it would interfere with their ability to investigate it, but those justifications do not apply to why unlawful search and seizure should not be a crime or at the very least fruit of the poisoned tree.
> I'm genuinely at a loss for how this doesn't make sense
I'm really not trying to be mean or making charged comments in any of the following, I apologize if it reads that way. I really appreciate your investment in this thread, it wasn't a driveby, you mean what you're saying, you're not trying to score points AFAICT. I think working through my discomfort is the best way to pay that forward. I save the most concise / assuming / judgey version of this for the end of the post.
There's just something very...off....with the whole thing. Like it reads like an intellectual exercise, I get the same vibe as watching someone work really really hard to make a philosophical argument to stir conversation.
You have these absolutes and logical atoms that seem straightforward and correct, but they're handwaving away a whole field and centuries of precedent.
There's this shuttling back and forth between wide scope and narrow scope thats really hard to engage with. Like, yes, we know "crime" is a nominal thing. My mind immediately jumps to "yes, calling things 'bad' is nominal and subjective" ---
Then, my mind transports me back to my sophomore year english class where someone starts free-associating about how nothing can be 100% confirmed to be real. I'm frustrated there, because, yes, that's true but doesn't shed any light, there's nothing to be gained from mining that vein, and doesn't map to how people have to engage with the world day to day.
You also have a very hard time accepting that this isn't reducible down to "unlawful search and seizure via 4th amendment violation" --- I don't mean to be aggressive, here: after a day and a lot of your thoughts, I still genuinely don't know if you understand that these things have ambiguities and that's why there's a whole industry around them.
I think we agree on:
- calling things bad is subjective.
- similarly, calling things "crimes" is subjective, and part of that is contextual (ex. we allow some people to do some things, but not others)
Then from there, I bet you'd agree to:
- therefore, we need some sort of dispute process to sort these things out
- lets say that's called the current legal system
Then from there, it feels like you're asking us to agree to:
- if something is declared judged to be bad moving forward, it is okay to punish those who did the bad thing in the past, no matter the circumstances
- now lets apply that specifically:
- if cops did a thing that's not allowed moving forward, then it is a moral imperative for the cops to drop every case that involved doing the thing that's not allowed moving forward
That's just way too far for anyone who isn't doing a philosophical exercise.
ex. Miranda v. Arizona established what we call "Miranda rights" -- now that a judge says there's a specific incantation to recite that courts will accept as proof criminals were advised of their rights. Are all cases where the Miranda rights were not read suddenly dropped? No, that'd be laughable, no society would tolerate the legal system dropping every case where someone was arrested in that scenario.
The most concise thing I can say, which unfortunately is judgemental due to the conciseness, is the whole thing reeks of an engineering mind expecting their understanding of the law to be an absolute, somehow overlooking that the whole point of the legal system above entry-level courts is there are no absolutes. From there, lets say you know that and accept that, because that's very likely. Then what happens with the Miranda rights thing? That's one of countless examples, but it's useful because A) I'm sure you grok Miranda Rights if you're in USA B) the principles you're espousing being applied there would lead to an obviously unacceptable outcome, so if your instinct is to say "yeah, do it, free everyone who talked to the cops!" I know you're just killing time doing a thought exercise --- which I do sometimes too! Not judgement.
I do want to apologize for the hostility or frustration of that comment. It had read as a drive by to me, but it wasn't a productive way to engage regardless. I sincerely appreciate you engaging, and I think your post does bring interesting points and I appreciate you taking the time to write them down.
> There's this shuttling back and forth between wide scope and narrow scope thats really hard to engage with.
I can very much see how it reads that way. My intent was to address the comment one or two up from yours saying that they were different because one is a crime, but that is very much a different conversation than this specific case. It feels a bit like I'm having two separate conversations on my end too, which is somewhat difficult for me to do without either writing a novel or losing track of nuance. I'll make an effort to keep this more constrained so it feels less like arguing with a moving target, that is certainly not my intent.
I'm with you on the parts that we agree on, and the parts that you think I'd agree with.
> Then from there, it feels like you're asking us to agree to:
The part that feels, to me, like it's not asking too much is that we already ask this of every other citizen in their everyday life. E.g. (and I apologize for not having a less contentious example) the ATF has repeatedly refused to set quantifiable standards for when someone is selling enough firearms to need an FFL. It's all about being "engaged in the business" and whether sales are for profit or collecting; there is no hard and fast "you must if you have X sales that meet Y criteria".
That's actually much more clear than it used to be; it used to just be "engaged in the business" and you just had to guess whether liquidating a collection made you in the business or not.
It doesn't feel like a huge step forward to say that the people pursuing crimes need to handle ambiguity at least as carefully as a private citizen. Especially considering that police can get a warrant as a definitive answer, where a judge typically won't answer hypotheticals from a citizen.
Furthermore, that was exactly how it worked until the good-faith exception was made in United States v Leon, in 1984 (not a joke, but I did have a chuckle. It's hyperbole but a cute coincidence). A significant portion of Americans were alive when the good faith doctrine didn't exist, and this evidence would have been fruit of the poisoned tree.
It's a little hard for me to accept that the Overton Window has shifted so dramatically that people are unwilling to accept a system they were born with.
> if cops did a thing that's not allowed moving forward, then it is a moral imperative for the cops to drop every case that involved doing the thing that's not allowed moving forward
I would argue for more nuance than that, but that's close. Briefly, I am arguing that evidence obtained via searches that are found not to be supported by the 4th Amendment is necessarily fruit of the poisoned tree, and should not be admissible as evidence in the case nor as evidence to obtain a warrant for a later search. That may result in the charges being dropped in some cases, and not dropped in others where there is other substantial evidence.
Conjecturing about this case, it seems like they would probably have to drop the charges. I don't know though, maybe they have other evidence obtained via other means they could use.
> ex. Miranda v. Arizona established what we call "Miranda rights"
Aside, but Miranda is an interesting example because he was re-tried without using his confession and the conviction stuck that time. An interesting example that a fruit of the poisoned tree policy does not necessarily require dropping charges.
I am perhaps out of the Overton Window here, but I don't see why that is an insane outcome of Miranda though I will certainly acknowledge that there would be fallout. My line of thinking is essentially that the text of the 4th did not change, which means that Miranda rights were free for anyone to claim at virtually any point in history (presuming they thought to make the argument). The outcome is necessarily prejudiced; either against defendants who could have argued for rights they didn't know they had, or against the judiciary for failing to establish that those rights exist at an earlier point. It makes sense to me for that to be prejudiced against the judiciary, because they are the arbiters of what rights people have, and had the ability to suggest and establish those rights at any point they wanted. Essentially if we were going to assign who is responsible for knowing that Miranda rights should exist before they did exist, I would expect that of the arbiters of rights far more than the defense attorney.
I am totally okay with that being unpopular, though. I'm not arguing for the majority of people, just myself.
> the principles you're espousing being applied there would lead to an obviously unacceptable outcome, so if your instinct is to say "yeah, do it, free everyone who talked to the cops!" I know you're just killing time doing a thought exercise --- which I do sometimes too! Not judgement.
Just to reiterate briefly, I do not think they should be immediately set free, but I do think they would be due a retrial without their confession (in the Miranda case specifically) if their confession is material to their conviction. It's not a thought exercise to me, but I may be outside the Overton Window.
I am aware that this would potentially result in some guilty people going free, but I would eat my hat if there wasn't a single person in jail or prison who was innocent and coerced into a confession that could have been avoided if they had known their Miranda rights. I also know that there are no absolutes in the law. It is absolutely a vague mess propped up by piles of precedent that can even be conflicting.
My contention is that given the ambiguity of the law and the power the government wields, defendants should be offered the full protection of the law as we currently understand it. I find the situation frustrating, which makes me look for a source to blame, but I think my real underlying sentiment is a feeling that it is unfair for citizens and defendants to suffer the consequences of the ambiguity the legal system.
It is hard for me to fathom the despair of someone who was innocent but confessed to a crime after a 12 hour investigation without knowing that they could remain silent or demand a lawyer. I cannot fathom the despair of watching the Miranda trial and knowing that their lawyer could have argued the same thing, but didn't, and now they're stuck in prison for however many years without any recourse.
That doesn't directly apply to this situation, because I do think this guy is guilty, but these precedents will be used in cases against innocent people. I find it a condemnation of our justice system if we are willing to risk the rights of innocent people to nail a few convictions.
If you have the time, I would really encourage reading the dissenting opinion in United States v Leon (I'll link it below). Justice Brennan has a far more well articulated opinion than me, that is likely less far outside the Overton Window. I'll leave a snippet that I find persuasive here, but the whole thing is worth at least a skim.
" In contrast to the present Court’s restrictive reading, the Court in Weeks recognized that, if the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other; because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual’s Fourth Amendment rights may be undermined as completely by one as by the other."
> I do not find "the justice system treats them differently... circular appeal to authority.
You may not know it, but you are effectively referencing the difference between a "rule of law" and a "rule by law" in the important parts at least.
This goes back to and falls under social contract theory, and the "rule of law" in society is meant as the final protection for its members, and to provide non-violent conflict resolution impartially, justly, and fairly, equal under the law, and accessible.
The moment the required components cease to exist, is the momentous beginning of a trend towards the failure of society, as it will naturally mean increasing violence and reversion to the natural order, rule of violence.
There is a valid argument to be made that despite many people claiming we have the former, we are actually living in the latter.
The latter allows many miscarriages, such as the infamous soviet judiciary example of, "you show me the person, I'll show you the crime".
Possession laws historically are also particularly problematic in this regard because evidence can be planted, or in the case of digital systems, induced creation of evidence involuntary (given how systems work and how callbacks can be injected by pointing software to a third-party resource to download), regardless there are many potential situations where the viewing of such horrifying material is unrelated to the choice of a person accused.
That of course doesn't appear to be the case here given what's been written, but nonetheless it is important to have firm, objective, and rational requirements to protect citizens. The trade-off is some small number of bad guys may get to go free as a result, and that's a tradeoff anyone should be glad for when it comes to corruption and how it devolves into tyranny unchecked.
The law rarely differentiates mitigating circumstances, often leading to a guilty until proven innocent situation for most, when these types of structural flaws are allowed. For example, there are locksmith tools that are considered burglary tools, and mere possession in some places is grounds for arrest (a felony), these tools share in common the physical shapes for other legitimate item uses.
System's without appropriate procedures and process for punishing abuses almost always leads to totalitarianism when no feedback system is in place to prevent such abuses from getting out of hand, which is why any true American should be up in arms when abuses happen as a result of corruption. Corruption can occur for a number of reasons that do not benefit a person. For a full treating of corruption, Johnston wrote a book on it ("Syndromes of Corruption").
Unfortunately, many judges today view the constitution as only being binding on government itself (in isolation), and have long taken the literal or constructive ruling instead of going with the spirit of the law, lessening our protections over time gradually but surely. This will eventually lead us to societal collapse.
It is a sad state of affairs, but regardless of the nature of the crime, the ends do not justify the means absent direct survival threats (which cannot be soundly argued in this case). Ends justifying means is only valid against existential threats.
When those means are allowed to change arbitrarily, the very next time it will be you or someone close to you on the sacrificial altar as a matter of some corrupt officials convenience, maybe merely for engaging in your protected rights to free speech to limit corrupt behavior or expressing disagreement in retaliation; there will only be an indirect link.
These tools are then ready made to be used in retaliation arbitrarily.
That said,
In this case, at least from what I've read, it appears a fairly clear cut case of fruit of the poisoned tree.
Law Enforcement could easily have applied for a warrant based on the probable cause of the hash matches, but instead chose not to. There is also the question of methodology Google uses in how they manage and enter new hashes into their hash database (which went unanswered).
They would have needed a warrant to justify everything else that came later. That is classic fruit of the poisoned tree. Thus it is a constitutional violation.
Additionally, I'm sure it comes as no surprise to most HN readers who are programmers, but hashes are not unique they are loose fingerprints related to structure but not giving fine detail for a exact match.
At its core, it is a finite field, which means that there can potentially be an infinite number of paths/files out there that match a same given hash.
Using a hash to match results of file structure, are not fool proof, and as a result of this ambiguity, it can potentially impinge legitimate activities, or obscure a chain of evidence without recourse.
For example, say that initial hash was not correctly identified when it was added to that watch list because maybe their AI false positived on it? Or it was submitted without review as being related to some censorable activity (legitimate under 1st amendment), all you have is a hash you can't verify the content.
This is how censorship or social credit can easily happen under a color of law in private parties hands; this has been covered extensively related to EU discussions on Client-Side-Scanning (and why its unreasonable given the repercussions for false-positives).
When you match only hashes, you don't know what the underlying content is aside from a likelihood/probability that it may be the same as some other file, which is why you need to be able to verify it is the exact same.
When your job is to find such people/things you should be doing what's needed (within the law) to ensure the strongest case possible.
The technical details matter, and processes must follow objective measures and be rational, and follow the constitution. Law is procedural, these are professionals. They should have gotten a warrant at the hash match.
Hashing collisions have happened in the past, mathematically this is known and expected given the structure of cryptographic hashes.
The investigators should have gotten a warrant to confirm.
The Failure to get a warrant here was a procedural failure, and left the door open for challenge. From what I can see in the write-up, it should be dismissed.
Failure to do so, effectively sets a precedent such that anything not directly addressed by a previous court can be construed as done in good faith to deprive people of their constitutional rights, allowing contradiction and further paralysis in the courts moving forward, and also promotes the interpretations that case law and legislative law override constitution protections.
Arguably, if the constitutional violation is found and admitted, there is no valid good faith exemption that can be applied to nullify the constitutional cure. The constitution supersedes everything else, including procedure, law, and case law.
The violation must be cured lest the entire constitution lose its power to non-enforcement (and the based system degrades towards tyranny), something that has been arguably happening as a result of long-standing corruption which goes unpunished.
Yes, the accused crimes may be heinous, but everyone is equal under the law. The moment this ceases to be true and happen with any regularity, is the day the rule of law has failed, and society then fails back to a natural law of violence. No one wants that.
It may not happen overnight, but it will happen regardless because history is full of examples where these dynamics cause those outcomes.
In many cases with very few exceptions today, judges who are older come to believe they are above the law, and fail to check their power, and in the end, they violate their sworn oaths. There is no punishment for them for this in most cases, and they never go back and correct mistakes they make (afaik, it is a rare exception if it happens at all).
Any true American should have a solid educational foundation in Social Contract Theory, and the basis for society. You are right to be concerned about the circular reasoning. In the absence of external objective measures, processes, and procedures, such circular reasoning inevitably devolves into delusion.
Your argument is a bit disingenuous because it's not applicable in situation where there is clear law clarifying that something can't be done.
You're pretending that cops are using this in situations where it's known that a warrant is needed, as opposed to it being an exception to "fruit of the poisonous tree" doctrine when new caselaw is being made.
> Acting in good faith would be getting a warrant regardless
That's not what "good faith" means, that's just something entirely made up by you. From a reasonable perspective that could be described as foolish and a waste of time and the public's resources.
> It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search.
There's a constant tension between technology, crime and the police that's reflected in the history of 4th amendment jurisprudence and it's not at all like what you describe. The criminals are pushing the boundaries to which the police must catch up, and the law must determine what is fair as society changes over time. I'm not particularly pro cop, but you don't seem to be reasonable about any of this.
> You're pretending that cops are using this in situations where it's known that a warrant is needed, as opposed to it being an exception to "fruit of the poisonous tree" doctrine when new caselaw is being made.
The ACLU has a decent article about it [1].
Beyond that, there is a substantial power imbalance between law enforcement and private citizens implying that private citizens should be favored by the law where possible to even that out (this is well upheld in case law and documents from the founding of the country). As a private citizen, if you want to do something but are not sure about its legality, do you a) yell "YOLO" and go ahead and do it, b) consult a lawyer, or c) just not do it at all? I believe law enforcement should be held to that same bar.
> That's not what "good faith" means, that's just something entirely made up by you. From a reasonable perspective that could be described as foolish and a waste of time and the public's resources.
"Good faith" is at odds with recklessness and negligence; an action cannot be made both recklessly or negligently and in good faith (supported by majority opinion in Leon v United States, which established the good faith exception). I cannot see a way in which taking an action of unknown legality, while possessing both the time and means to take an alternate action of known legality, is not acting with reckless disregard or negligence to the rule of law and thus incompatible with good faith.
From Leon v United States: "The deference accorded to a magistrate's finding of probable cause for the issuance of a warrant does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based, and the courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police."
> There's a constant tension between technology, crime and the police that's reflected in the history of 4th amendment jurisprudence and it's not at all like what you describe. The criminals are pushing the boundaries to which the police must catch up, and the law must determine what is fair as society changes over time.
I would genuinely encourage you to review the history of 4th Amendment jurisprudence. It has been continually weakened to the point that only the most flagrant and loudly-announced violations are found unconstitutional, and even then the punishments are virtually non-existent.
Again, the ACLU has a very informative document on it literally called "The Crisis in Fourth Amendment Jurisprudence" [2]. Criminals aren't doing anything particularly new; stashing files somewhere and even encrypting them isn't anything new. Encrypting something in a way that was virtually undecipherable was possible even when the 4th Amendment was written. These are not novel criminal techniques, but the broad liberties given to police with regards to the 4th very much are.
You are welcome to consider me unreasonable. I think there is a fundamental gap in core beliefs causing that. I do not believe criminals are doing anything categorically new, nor that crime is suddenly worse, nor that crime is currently so bad that it demands an exceptional response. Under that set of beliefs, I think opposition to exceptional police powers is reasonable. You seem to believe the opposite, and I can see how my opposition seems unreasonable. I would say that you have fallen victim to unfounded propaganda, and I presume you have a similar accusation to level at me.
Regardless, I do appreciate you engaging in good faith and I wish you weren't ratio-ed on your comment. I do think you have brought interesting points to the discussion.
I'm not OP, but I consider your response quite reasonable.
I found your reply informative and specific, though I took a more fundamental approach in my response to OP, focusing on components required for a "rule of law" compared to a "rule by law" (kafka/soviet style).
I've done a lot of historic reading, and any time those components fail, violence increases proportionally to the lack of agency for non-violent resolution available.
It may just be speculation on my part, but given the repeated cycle, and detailed accounts, it seems there are parallels in objective measures of these components compared with witnessed events, which are what citizens use as a signal to determine whether they take violent action.
The events seem to follow quite accurately along what's been written in social contract theory, and from Thomas Paine's time & writings.
Obviously these type of writings are from times that are dark and violent, and violence benefits few if any which is why there's good cause in trying to prevent that kind of degradation in existing systems, and the dynamics that cause it.
> the law must determine what is fair as society changes over time
This has been the ideal that has been put forth generally quite a bit, but it also almost always neglects the structural failings that must equally be addressed at the same time.
For example, at what point would you say that case law overrides the constitution?
According to the law, it holds the constitution as supreme, and that no representative has the authority to exceed or violate that which is granted in the constitution, this pertains to the judiciary as well as the executive and legislative. It is up to the courts to enforce this as the last pillar of society (for non-violent conflict resolution).
In a general society with a rule of law, when there is a admitted constitutional violation, it must be immediately cured.
Issuing a decision that prevents a constitutional remedy while recognizing the violation is arbitrary, a direct contradiction, exceeds the authority granted, negates the constitution, shows a violation of a sworn oath to uphold the constitution, and causes the entire "rule of law" and its institutional credibility to be called into question.
If you allow exceptions to the constitution, the fundamental component, "equality under the law", fails, and that means we don't have a "rule of law".
The natural outcome of this being increasing violence, which no one wants because it benefits no one.
Bringing society as a whole from a "rule of law" to a "rule by law", which inevitably (over time) causes society to fail violently towards totalitarianism/tyranny, is stupid but may have short term benefits for the corrupt. The harms of such are systemic and grow exponentially.
It is not a matter of catching up to offenders, it is a matter of competency. This is a professional occupation where corruption is an ongoing structural issue, and actions must be reasonable to protect both society and the individual rights equally.
No true American would accept soviet-style kafka courts without any of the normal protections regardless of the crime, and that is the danger faced with the decision here.
Corruption of the state will always seek to use such types of systems to justify their existence often inducing, planting evidence, or causing such crimes to be committed. Some may be actual offenders, but others may not and no differentiation is made. It may even be done for political purposes such as with The Gulag Archipelago.
It is a slippery slope which cannot be walked back later as the damage will have already been done with the punishment being front-loaded.
If there is a question regarding a boundary of a policy or process, you get a legal opinion, and base your actions on that opinion. This is well established in many sectors, including but not limited to the Business Judgment Rule. This is what is needed for this to be done in "good faith".
Allowing a blanket good-faith exemption and exclusion for government to do anything not directly covered by existing case-law without repercussion is a dangerous precedent towards tyranny, especially when they had the probable cause at the start to do it the right way.
It seems like you neglect many of these important foundational subjects. The lack of accountability control encourages the police and related apparatus to violate the law, and thus violate the public trust when this is unenforced.
The main outcome in a society absent a "rule of law" is overwhelming violence.
This is what most people fail to realize, and many today embrace magical thinking and delusion.
Mass delusion has greatly overtaken this country and will soon destroy it if it is not stopped.
It is of critical importance to base our protective systems in objective measures which are external, and rational thinking and critical reasoning that logically follows without contradiction or circular reasoning.
To fail at rational thinking, is to embrace delusion and become schizophrenic, a common malady in the totalitarian state (Joost Meerloo). This is covered well in topics on the banality of evil, and the radical evil (WW2).
The crime accused is repugnant, but equality under the law, and constitutional protections are sacrosanct, and far more important than any single person.
The 4th amendment is about unreasonable searches and seizures, it is also about "persons, houses, papers, and effects", that is, not files stored in someone else's computer.
The police here considered that a hash match was a reasonable enough condition to conduct a search, and that Google's TOS allowed it. They were wrong, but it is not obvious that they were by just reading the 4th amendment, and the situation is rather new, so it is reasonable to assume that the police acted in good faith.
If I have documents in a locked briefcase in a hotel room, does the police get to read and copy them with the hotel operator's permission while I am in the shower? Assume that the locked briefcase is not particularly tamper proof. Anyone with decent lock picking skills can open one.
Is it your locked briefcase or the hotel's? I believe hotels have the ability to unlock their own safe, so I suspect they're allowed to ask the hotel's permission to look without a warrant.
Also, if a hotel cleaner found illegal material lying in your room, the police don't need a warrant to seize it and prosecute you.
If it's your briefcase then I think they need a warrant.
The type of person who cannot draw a line of semantic equivalence between papers and files on a computer, is uniquely devoted to entertaining a level of obtuseness it is hard to seriously entertain. On par with people who think that "Arms" in the second amendment must only apply to muskets, cannons and such, and nothing after.
Tell me. When you put a bunch of papers in a folder, then put them in a cabinet, arguably under some semblance of organization in order to make later retrieval easier, what are you doing?
Filing.
The entire desktop metaphor, (the basis around which most computer UI is based), was chosen in part specifically for it's compatibility with non-digital processes at the time of software and the personal computer's fruition. Files on a disk, are in a literal sense, your papers. They are stored in directories(lists of things and where to find them, a.k.a. folders), areanged under the abstractive auspices of a "file system", and at times "archived" for convenient storage or transport. Gee. Same verbage as what you do with papers... In fact, your papers have nothing to do with dead trees except as an accident of it being the first prevalent medium for persistent info storage. Your papers covers the set of information through which you conduct your business with the outside world.
Those packets of paper are files. Those collections of 0's and 1s on a disk are files. Files are papers. Papers are protected. The involvement of a computer in the chain suddenly nullifying the essence of what point was being made by the Founders is as worthy of ridicule as thinking they went to war with their colonial parent state only because of a tax spiff. Or the civil war being only about slavery. It's evidence of a worldview most tragically impoverished; either by accident (which while regrettable, is at least amenable to remedy), or intention to push a state of affairs; to which one can only shake one's head and push on with their own life, and hope that maybe there are enough like minded individuals out there to counterbalance the individual's in questions aspirations.
Already spent more cycles on this than I should have, good day.
And one thing we learn as we've been hanging around in Time long enough to recognize larger cycles, is the world changes, people dont. Even as we change the world.
The rule established in this case is new, hence TFA, and all the time the lawyers and judge wasted on it :)
If I may suggest where wires are getting crossed:
You are sort of assuming it's like a logic gate: if 4th amendment violation, bad evidence, criminal must go free. So when you say "the rule", you mean "the 4th amendment", not the actual ruling.
That's not how it works, because that simple ultimatum also has edge cases. So we built up this whole system around nominating juries and judges, and paying lawyers, over centuries, to argue out complicated things like weighing intentionality.
