If the employees of these massive companies who illegally suppressed their wages hadn't done so then the companies wouldn't be so massive, and the employees would have more money and some of them would have had more resources to start competitors to the hypothetically less well moneyed giants.
This would have lead to a scenario where there's more competition in the market which means more innovation, more jobs for other people in tech, and lower prices for consumers.
Unfortunately this didn't happen and we're all worse off for it.
And it should be mostly bijective under most conditions. (This is obviously impossible in practice but hashes with common collisions shouldn't be allowed as legal evidence). Also neural/visual hashes like those used by big tech makes things tricky.
The hash in question has many collisions. It it probably enough to get a warrant put it on a warrant, but it may not be enough to get a warrant without some other evidence. (it can be enough evidence to look for other public signs of evidence, or perhaps because there are a number of images that match different hashes)
> Google’s hash match may well have established probable cause for a warrant to allow police to conduct a visual examination of the Maher file.
Very reasonable. Google can flag accounts as CP, but then a judge still needs to issue a warrant for the police to actually go and look at the file. Good job court. Extra points for reasoning about hash values.
> a judge still needs to issue a warrant for the police to actually go and look at the file
Only in the future. Maher's conviction, based on the warrantless search, still stands because the court found that the "good faith exception" applies--the court affirmed the District Court's finding that the police officers who conducted the warrantless search had a good faith belief that no warrant was required for the search.
I wonder what happened to fruit of the poisoned tree? Seems a lot more liberty oriented than "good faith exception" when police don't think they need a warrant (because police never seem to "think" they need a warrant).
This exactly. Bad people have to go free in order to incentivize good behavior by cops.
You and I (as innocent people) are more likely to be affected by bad police behavior than the few bad people themselves and so we support the bad people going free.
>You and I (as innocent people) are more likely to be affected by bad police behavior than the few bad people themselves and so we support the bad people going free.
I know anecdotes aren't data, but my only negative interactions with cops have basically been for traffic tickets. Meanwhile my negative interactions with criminals have been far more numerous, along with several second-order effects caused by their mere existence (like not going to certain neighborhoods at night because of high crime rates). I don't think there's ever been a neighborhood law abiding citizens had to avoid because of fear of cops.
Maybe I'm some kind of crazy outlier, but I'm pretty sure that most innocent people are the same.
> I don't think there's ever been a neighborhood law abiding citizens had to avoid because of fear of cops.
I think there's a fair number of stories of POC be accosted by police officers because they were in a neighborhood they didn't "belong" in, so your statement is likely inaccurate.
The threat to innocent people posed by incompetent or tyrannical police is arguably much greater than by ordinary criminality.
In small towns across America, corrupt police departments hassle outsiders and issue minor citations as a way to generate revenue. If someone is found to have large amounts of cash for some reason, they often will confiscate it in a process called civil forefeiture. Many US police officers act with impunity because their misconduct will be protected by local prosecutors and judges. There absolutely are towns and neighborhoods good people should avoid because of the police.
Dan White shot the mayor and a supervisor in cold blood and confessed everything to the cops. They managed to stop him from spilling out his premeditation on tape by interrupting him as his confession was getting rolling and the DA failed to win the easiest conviction of his career. The cops then went on a spree of beating people gratuitously in the Castro.
Cops aren't there to enforce the law without fear or favor. They routinely engage in petty corruption and complain when they have to be professional when on duty.
There is a reality distortion field in existence now because almost every police interaction is recorded (body cams are everywhere nowadays) and the ones that go bad are put on full blast across social media and the news, despite them being somewhere on the order of 1 in 1,000,000 encounters.
Seriously, if car accidents were reported like police accidents, we probably would have been forced by confused ideologues to ban automobiles 2 years ago.
Personally I’m a cis white male, who’s been a mostly law abiding citizen, and I’ve had dozens of poor interactions with police throughout my life. Additionally I have a probably unusual number of family and friends who work in law enforcement. The stories I’ve heard about co-workers from them are absolutely terrifying. My father’s (retired police officer) advice when I became a teenager was “only call the police when what is about to happen is worse than going to jail.”
I deeply respect the difficulty of the profession and don’t believe that all or even most police are bad people, but there are way too many who have no business being in that profession.
> Bad people have to go free in order to incentivize good behavior by cops.
And they will, next time, and everyone knows it. We don't need an actual example of a bad person going free if the potential is certain enough.
Unless, of course, you're trying to encourage good behaviour in the general case (rather than a codified list of specifics); but that's expecting police officers to be experts in right and wrong. As obvious as such things are to me, I'm aware that a lot of people struggle a lot more with these things. (Or, perhaps, struggle less: I spend a lot of time thinking about morality and ethics, more than is reasonable to expect a salaried worker to spend.)
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.
The court ruled that at the time, when the State Police opened the file, they had no reason to believe that a warrant was required. While the search was later ruled unconstitutional, no court had ruled it was unconstitutional *at the time of the search*. One of the cornerstones of American jurisprudence is that you cannot go back in time and overrule decisions based on contemporary jurisprudence.
From the opinion: 'the exception can also apply where officers “committed a
constitutional violation” by acting without a warrant under circumstances
that “they did not reasonably know, at the time, [were] unconstitutional.”'
If you're interested, the discussion of a good faith exemption (and why fruit of the poison tree doesn't apply here) begins at page 40 of the doc.
As someone not from the US the fact that "uwu we didn't know" is an adequate defense for the police to do something illegal is really weird. Is there some crucial context I'm missing?
It dates back to the constitutional ban on "ex post facto" laws. Meaning, the government can't retroactively make something illegal. Which is a good thing, IMO.
So, for example, it's illegal at the federal level to manufacture machine guns (and I'm not going to get into a gun debate or nuances as to what defines a machine gun--it's just an example). But a machine gun is legal as long as it was manufactured before the ban went into place. Because the government can't say "hey, destroy that thing that was legal to manufacture, purchase, and own when it was manufactured."
This concept is extrapolated here to say "The cops didn't do anything illegal at the time. We have determined this is illegal behavior now, but we can't use that to overturn police decisions that were made when the behavior wasn't illegal. In the future, cops won't be able to do this."
The government has totally said “destroy the thing that we said was legal to manufacture, purchase, and own when it was manufactured.” That was the entire point of the bump stock ban, which attempted to reclassify an item that they had previously said was not a machine gun into a machinegun, and therefore illegal to own (and was always illegal to own, so they weren’t going to compensate people for them either).
More strictly, machine guns aren’t banned by the federal government, but rather you have to have paid a tax to own it, and they’ve banned paying the tax for gun made after X date. If they decide to ban the ownership, grandfathering is not guaranteed.
> Because the government can't say "hey, destroy that thing that was legal to manufacture, purchase, and own when it was manufactured."
Actually that's a totally normal way for bans to work.
If a state decides to ban a book from school libraries, the libraries don't get to keep the books on the shelves because they already had it.
The ban on ex post facto laws merely means that, if a ban on a given book is passed today a librarian can't be punished for having it on the shelves yesterday.
Grandfathering in exceptions is just politics - make a bitter pill easier to swallow for the people most impacted; delay the costs of any remediation; deal with historical/museum pieces; and simplify enforcement.
>It dates back to the constitutional ban on "ex post facto" laws.
Not really, that's not now constitutionality works with respect to the government. Ex post facto is when the government wants to act against you, not when you want the government to behave. They use new decisions regarding constitutionality to undo previous decisions all the time, they just don't want to in this specific case and are using the "well they would have been able to get a warrant anyway if they had known they'd needed one" to justify it.
It wasn't illegal (unconstitutional) at the time they did it, which is different from not knowing. They would have had to see the future to know.
Also keep in mind "illegal" and "unconstitutional" are different levels - "illegal" deals with specific laws, "unconstitutional" deals with violating a person's rights. Laws can be declared unconstitutional and repealed.
Laws can also be unconstitutional and remain a law--the law just can't be enforced. For example, in the state of Texas sodomy is still technically illegal, just the law is unenforceable. But if the Supreme Court overrules previous court decisions and says anti-sodomy laws are constitutional, the Texas law immediately becomes enforceable again.
I don't know. I feel that if something is declared "unconstitutional" today, then it was always unconstitutional (from inception of or amendment to the constitution). Unlike "illegal" in which laws can come and go, so something that is illegal today can be legal tomorrow. And just like "ignorance is no excuse for breaking a law", I don't thing ignorance should be an excuse for doing something unconstitutional.
Just another way cops can be terrible at their job and get away with it. If only citizens could use the Chappelle defense, "I'm sorry officer, I didn't know I couldn't do that".
Let's be clear. This guy had CSAM and was caught using digital forensics. The cops would've been able to secure the search warrant at the time had they been required to do so.
This isn't some innocent person who is spending time in prison because of a legal technicality.
I understand but this is literally how rights are eroded away. It's all good when it's the worst people on the planet, but very quickly it's abused against every one else. Once these rights go away, they don't come back.
The systemic downsides of police overreach happen whether or not a particular person was guilty. In general, throwing out the evidence is an effective way to fight back against overreach. I'm not worried about this guy, I'm worried about everyone else.
The idea that they would have been able to get a warrant limits the damage, but it's still iffy.
The opinion says at the time the warrantless search occurred, one appellate court had already held "that no warrant was required in those circumstances" (p 42). Only a year after the search occurred, did another appellate court rule the other way.
This is the main argument that the search met the good faith exception to the exclusionary rule (i.e. the rule that says you have to exclude evidence improperly obtained). This exception is supported in the opinion (at p41) with several citations including United States v. Ganias, 824 F.3d 199, 221–22 (2d Cir. 2016)
IANAL, but as I understood, this exception is specifically about cases where precedence is established. This same trick or others substantially like it won't work in the future, but because it was not a "known trick", the conviction still stands.
Not only that, prior to the search another court had ruled that no warrant was required. The new ruling overrides the old one, but the search was in good faith.
Prior to the search. A lower court had ruled that no warrant was required. The search was in good faith. The new ruling overturns the earlier ruling, but before, it had been ruled legal to do this kind of warrantless search.
I'm trying to imagine a more "real-world" example of this to see how I feel about it. I dislike that there is yet another loophole to gain access to peoples' data for legal reasons, but this does feel like a reasonable approach and a valid goal to pursue.
I guess it's like if someone noticed you had a case shaped exactly like a machine gun, told the police, and they went to check if it was registered or not? I suppose that seems perfectly reasonable, but I'm happy to hear counter-arguments.
The main factual components are as follows: Party A has rented out property to Party B. Party A performs surveillance on or around the property with Party B's knowledge and consent. Party A discovers very high probability evidence that Party B is committing crimes within the property, and then informs the police of their findings. Police obtain a warrant, using Party A's statements as evidence.
The closest "real world" analogy that comes to mind might be a real estate management company uses security cameras or some other method to determine that there is a crime occurring in a space that they are renting out to another party. The real estate management company then sends evidence to the police.
In the case of real property -- rental housing and warehouse/storage space in particular -- this happens all the time. I think that this ruling is imminently reasonable as a piece of case law (ie, the judge got the law as it exists correct). I also thing this precedent would strike a healthy policy balance as well (ie, the law as it exists if interpreted how the judge in this case interprets it would a good policy situation).
Is there any such thing as this surveillence applying to the inside of the renters bed room, bath room, filing cabinet with medical or financial documents, or political for that matter?
I don't think there is, and I don't think you can reduce reality to being as simple as "owner has more right over property than renter" renter absolutely has at least a few rights in at least a few defined contextx over owner because owner "consented" to accept money in trade for use of property.
> Is there any such thing as this surveillence applying to the inside of the renters bed room, bath room, filing cabinet with medical or financial documents, or political for that matter?
Yes. Entering property for regular maintenance. Any time a landlord or his agent enters a piece of property, there is implicit surveillance. Some places are more formal about this than others, but anyone who has rented, owned rental property, or managed rental property knows that any time maintenance occurs there's an implicit examination of the premises also happening...
But here is a more pertinent example: the regular comings and goings of people or property can be and often are observed from outside of a property. These can contribute to probable cause for a search of those premises even without direct observation. (E.g., large numbers of disheveled children moving through an apartment, or an exterior camera shot of a known fugitive entering the property.)
Here the police could obtain a warrant on the basis of landlord's testimony without the landlord actually seeing the inside of the unit. This is somewhat similar to the case at hand, since what Google alerted the police to a hash match without actually looking at the image (ie, entering the bedroom).
> I don't think you can reduce reality to being as simple as "owner has more right over property than renter"
But I make no such reduction, and neither does the opinion. In fact, quite the opposite -- this is contributory why the court determines a warrant is required!
> ...Google alerted the police to a hash match without actually looking at the image (ie, entering the bedroom).
Google cannot have calculated that hash without examining the data in the image. They, or systems under there control obviously looked at the image.
It should not legally matter whether the eyes are meat or machine... if anything, machine inspection should be MORE strictly regulated, because of how much easier and cheaper it tends to make surveillance (mass or otherwise).
> It should not legally matter whether the eyes are meat or machine
But it does matter, and, perhaps ironically, it matters in a way that gives you STRONGER (not weaker) fourth amendment rights. That's the entire TL;DR of the fine article.
If the court accepted this sentence of yours in isolation, then the court would have determined that no warrant was necessary in any case.
> if anything, machine inspection should be MORE strictly regulated, because of how much easier and cheaper it tends to make surveillance (mass or otherwise).
I don't disagree. In particular: I believe that the "Reasonable Person", to the extent that we remain stuck with the fiction, should be understood as having stronger privacy expectations in their phone or cloud account than they do even in their own bedroom or bathroom.
With respect to Google's actions in this case, this is an issue for your legislator and not the courts. The fourth amendment does not bind Google's hands in any way, and judges are not lawmakers.
The point of the analogy is that the contents of ones files should be considered analogous to the contents of ones mind.
Whatever reasons we had in the past for deciding that financial or health data, or conversations with attorneys, or bathrooms and bedrooms, are private, those reasons should apply to ones documents which includes ones files.
Or at least if not, we should figure out and be able to show exactly how and why not with some argument that actually holds water.
Only after that does it make any sense to either defend or object to this development.
If I import hundreds of pounds of poached ivory and store it in a shipping yard or move it to a long term storage unit, the owner and operator of those properties are allowed to notify police of suspected illegal activities and unlock the storage locker if there is a warrant produced.
Maybe the warrant uses some abstraction of the contents of that storage locker like the shipping manifest or customs declaration. Maybe someone saw a shadow of an elephant tusk or rhino horn as I was closing the locker door.
Pretty much all rental storage, shipping container, 3rd party semi trailer pool, safe deposit box type services and business agreements stipulate that the user of the arbitrary box gets to deny the owner of the arbitrary box access so long as they're holding up their end of the deal. The point is that the user is wholly responsible for the security of the contents of the arbitrary box and the owner bears no liability for the contents. This is why (well run) rental storage places make you use your own lock and if you don't pay they add an additional lock rather than removing yours.
I don't think that argument supports the better analogy of breaking into a computer or filing cabinet owned by someone renting the space. Just because someone is renting space doesn't give you the right to do whatever you want to them. Cameras in bathrooms of a rented space would be another example.
But he wasn’t running a computer in a rented space, he was using storage space on google’s computers.
In an older comment I argued against analogies to rationalize this. I think honestly at face value it is possible to evaluate the goodness or badness of the decision.
> In an older comment I argued against analogies to rationalize this. I think honestly at face value it is possible to evaluate the goodness or badness of the decision.
I generally do agree that analogies became anti-useful in this thread relatively quickly.
However, I am not sure that avoiding analogies is actually possible for the courts. I mean, they can try, but at some point analogies are unavailable because most of the case law -- and, hell, the fourth amendment itself -- is written in terms of the non-digital world. Judges are forced to reason by analogy, because legal arguments will be advanced in terms of precedent that is inherently physical.
So there is value in hashing out the analogies, even if at some point they become tenuous, primarily because demonstrating the breaking points of the analogies is step zero in deviating from case law.
Yes, that is why I presented an alternative to the analogy of "import hundreds of pounds of poached ivory and store it in a shipping yard or move it to a long term storage unit".
Like having the right to avoid being videoed in the bathroom, we have the right to avoid unreasonable search of our files by authorities, whether stored locally or on the cloud
I have this weird experience where people that get all their legal news from tech websites have really pointed views about fourth amendment jurisprudence and patent law.
I agree. This is a case where the physical analogy leads us to (imo) the correct conclusion: compelling major property management companies to perform regular searches of their tenant's properties, and then to report any findings to the police, is hopefully something that most judges understand to be a clear violation of the fourth amendment.
> The issue of course being the government then pressuring or requiring these companies to look for some sort of content as part of routine operations.
>> Party A discovers very high probability evidence that Party B is committing crimes within the property ...
> This isn't accurate: the hashes were purposefully compared to a specific list. They didn't happen to notice it, they looked specifically for it.
1. I don't understand how the text that comes on the right side of the colon substantiates the claim on the left side of the colon... I said "discovers", without mention of how it's discovered.
2. The specificity of the search cuts in exactly the opposite direction than you suggest; specificity makes the search far less invasive -- BUT, at the same time, the "everywhere and always" nature of the search makes it more invasive. The problem is the pervasiveness, not the specificity. See https://news.ycombinator.com/user?id=aiforecastthway
> And of course, what happens when it's a different list?
The fact that the search is targeted, that the search is highly specific, and that the conduct plainly criminal, are all, in fact, highly material. The decision here is not relevant to most of the "worst case scenarios" or even "bad scenarios" in your head, because prior assumptions would have been violated prior to this moment in the legal evaluation.
But with respect to your actual argument here... it's really a moot point. If the executive branch starts compelling companies to help them discover political enemies on basis of non-criminal activity, then the court's opinions will have exactly as much force as the army that court proves capable of raising, because such an executive would likely have no respect for the rule of law in any case...
It is reasonable for legislators to draft laws on a certain assumption of good faith, and for courts to interpret law on a certain assumption of good faith, because without that good faith the law is nothing more than a sequence of forceless ink blotches on paper anyways.
I don't think that changes anything. I think it's entirely reasonable for Party A to be actively watching the rented property to see if crimes are being committed, either by the renter (Party B) or by someone else.
The difference I do see, however, is that many places do have laws that restrict this sort of surveillance. If we're talking about an apartment building, a landlord can put cameras in common areas of the building, but cannot put cameras inside individual units. And with the exception of emergencies, many places require that a landlord give tenants some amount of notice before entering their unit.
So if Google is checking user images against known CSAM image hashes, are those user images sitting out in the common areas, or are they in an individual tenant's unit? I think it should be obvious that it's the latter, not the former.
Maybe this is more like a company that rents out storage units. Do storage companies generally have the right to enter their customers' storage units whenever they want, without notice or notification? Many storage companies allow customers to put their own locks on their units, so even if they have the right to enter whenever they want, regularly, in practice they certainly do not.
But like all analogies, this one is going to have flaws. Even if we can't match it up with a real-world example, maybe there's still no inconsistency or problem here. Google's ToS says they can and will do this sort of scanning, users agree to it, and there's no law saying Google can't do that sort of thing. Google itself has no obligation to preserve users' 4th Amendment rights; they passed along evidence to the police. I do think the police should be required to obtain a warrant before gaining access to the underlying data; the judge agrees on this, but the police get away with it in the original case due to the bullshit "good faith exception".
Ok. But that would also be invasion of privacy. If the property you rented out was being used for trafficking and you don’t want to be involved with trafficking, then the terms would have to first explicitly set what is not allowed. Then it would also have to explicitly mention what measures are taken to enforce it and what punishments are imposed for violations. It should also mention steps that are taken for compliance.
Without full documentation of compliance measures, enforcement measures, and punishments imposed, violations of the rule cannot involve law enforcement who are restricted to acting on searches with warrants.
> If the property you rented out was being used for trafficking and you don’t want to be involved with trafficking, then the terms would have to first explicitly set what is not allowed.
I don't believe that's the case. You don't need to state that illegal activities are not allowed; that's the default.
> Then it would also have to explicitly mention what measures are taken to enforce it
When Airbnb used to allow cameras indoors, they did -- after some backlash -- require hosts to disclose the presence of the cameras.
> ... and what punishments are imposed for violations.
No, I don't think that is or should be necessary. If you do illegal things, the possible punishments don't need to be enumerated by the person who reports you to the police.
Put another way: if I'm hosting someone on Airbnb in the case where I'm living in the same property, and I walk into the kitchen to see my Airbnb guest dealing drugs, I am well within my rights to call the police, without having ever said anything up-front to my guest about whether or not that's acceptable behavior, or what the consequences might be. Having the drug deal instead caught on camera is no different, though I would agree that the presence of the cameras should have to be disclosed beforehand.
In Google's case, the "camera" (aka CSAM scanning) appears to have been disclosed beforehand.
>Without full documentation of compliance measures, enforcement measures, and punishments imposed, violations of the rule cannot involve law enforcement who are restricted to acting on searches with warrants.
In the case of in-progress child abuse, that wouldn’t require a warrant as entry to prevent harm to a person is an exigent circumstance and falls under the Emergency Aid doctrine. If they found evidence or illegal items within plain view, that evidence would be permitted under the plain view doctrine. However, if they went and searched drawers or opened file cabinets, evidence discovered in that circumstance would not be allowed (opening a file cabinet isn’t required to solve the emergency aid situation typically.)
What’s really fascinating is that Children Protective Services acts as if they never need a warrant even if there is not an exigent circumstance. To my knowledge there hasn’t been a Supreme Court case challenging that and circuits are split. Interesting reading about that if anyone is interested:
I think the real-world analogy would be to say that the case is shaped exactly like a machine gun and the hotel calls the police, who then open the case without a warrant. The "private search" doctrine allows the police to repeat a search done by a private party, but here (as in the machine gun case), the case was not actually searched by a private party.
But this court decision is a real world example, and not some esoteric edge case.
This is something I don’t think needs analogies to understand. SA/CP image and video distribution is an ongoing moderation, network, and storage issue. The right to not be under constant digital surveillance is somewhat protected in the constitution.
I like speech and privacy and am paranoid of corporate or government overreach, but I arrive at the same conclusion as you taking this court decision at face value.
Wait until Trump is in power and corporations are masterfully using these tools to “mow the grass” (if you want an existing example of this, look at Putin’s Russia, where people get jail time for any pro-Ukraine mentions on social media).
Yeah I’m paranoid like I said, but this case it seems like the hash of a file on google’s remote storage flagged as potential match that was used as justification to request a warrant. That seems common sense and did not involve employees snooping pre-warrant.
The Apple CSAM hash detection process, that the launch was rolled back, concerned me namely because it was run on-device with no opt out. If this is running on cloud storage then it sort of makes sense. You need to ensure you are not aiding or harboring actually harmful illegal material.
I get there are slippery slopes or whatever but the fact is you cannot just store whatever you wish in a rental. I don’t see this as opening mass regex surveillance of our communication channels. We have the patriot act to do that lol.
I think the better option is a system where the cloud provider cannot decrypt the files, and they’re not obligated to lift a finger to help the police because they have no knowledge of the content at all
In my opinion, despite the technical merits of an algorithm, encryption is only as trustworthy as the computer who generates and holds a private key.
I would personally not knowingly use a cloud provider to commit a crime. That is a fairly naive take to assume because your browser is https that data at rest and in process isn’t somehow observable.
And I see where you’re coming from but I am afraid that position severely overestimates the will of US people to trade freedom/privacy for security and the legislature to hold citizens’ privacy in such high regard.
I only worry that, in the case that renting becomes a roundabout way of granting more oversight ability to the government, then as home ownership rates decrease, government surveillance power increases.
Sure, it's facilitated through a third party (the owner), but the extrapolated pattern seems to be: "1. Only people in group B will have fewer rights, so people in group A shouldn't worry" followed closely by "2. Sorry, you've been priced out of group A."
In the case of renting, we end up in the situation where those who have enough wealth to own their own home are afforded extra privileges of privacy.
Now to bring this back to the cloud; the cynical part of me looks towards a future of cheap, cloud-only storage devices. Or an intermediate future of devices where cloud is first party and local storage is just enough of a hassle that people don't use it. And the result is that basically everyone now has the present day equivalent of local storage scanning.
If renting de-facto grants fewer rights, then in the future where "you'll own nothing and be happy", you'll also have no rights, and all the way people will say "as a renter, what did you expect?"
OK I agree with you about setting a precedent that future storage will be scanned by default. Additionally who will control the reference hash list?, since making one necessitates hashing that illicit material.
I only hope the court systems escalate it and manage to protect free speech or unreasonable search and seizure or self incrimination or whatever if the CSAM hash comparisons are used against political opponents or music piracy or tax evasion or whatever.
I’m unsure I wrote that from like an ethics standpoint. The silk road guy was got on conspiracy for attempting murder and not drug or human trafficking charges. So I’m unsure of legal side.
I think if you knowingly provided a platform to distribute SA/CP/CSAM and the feds become involved you will be righteously fucked.
Reddit clamped down on the creepy *bait subreddits years ago. Maybe it was self-preservation on the business side or maybe it was forward looking about legal issues.
I’m not a lawyer I was just mentioning things that I would follow for ethics morals and my sense of self preservation.
I'm reasonably certain Reddit's decision to ban /r/jailbait and the like was driven by business/reputation. It was widely discussed for some time before it was banned and, IIRC given a "worst of" award by the admins at one point. Once it got major media coverage, Reddit got its first real content policy.
The only one sounding like Putin is Hillary Clinton and her numerous acolytes in the government.
So sure, let’s talk more about Trump.
Except she's no longer running for office, last we checked.
under the Biden/Harris regime,
Except it wasn't a "regime", and neither was Trump's administration. Both were democratically elected governments, whether you happen to like them or not.
Meanwhile, if you live and breathe according to emotionally manipulative language like this, then you already have a "regime" of sorts installed in your head.
I don't think the analogy holds for two reasons (which cut in opposite directions from the perspective of fourth amendment jurisprudence, fwiw).
First, the dragnet surveillance that Google performs is very different from the targeted surveillance that can be performed by a drug dog. Drug dogs are not used "everywhere and always"; rather, they are mostly used in situations where people have a less reasonable expectation of privacy than the expectation they have over their cloud storage accounts.
Second, the nature of the evidence is quite different. Drug-sniffing dogs are inscrutable and non-deterministic and transmit handler bias. Hashing algorithms can be interrogated and are deterministic and do not have such bias transferal issues; collisions do occur, but are rare, especially because the "search key" set is so minuscule relative to the space of possible hashes. The narrowness and precision of the hashing method preserves most of the privacy expectations that society is currently willing to recognize as objectively reasonable.
Here we get directly to the heart of the problem with the fictitious "reasonable person" used in tests like the Katz test, especially in cases where societal norms and technology co-evolve at a pace far more rapid than that of the courts.
This analogy can have two opposite meanings. Drug dogs can be anything from a prop used by the police to search your car without a warrant (a cop can always say in court the dog "alerted" them) to a useful drug detection tool.
Don't they?. If you tell the cops that your neighbor has drugs of significant quantity in their house, would they not still need a warrant to actually go into your neighbor's house?
There are a lot of nuances to these situations of third-party involvement and the ruling discusses these at length. If you’re interested in the precise limits of the 4th amendment you should really just read the linked document.
they should as a matter of course. but I guess "papers" you entrust to someone else are a gray area. I personally think that it goes against the separation of police state and democracy, but I'm a nobody, so it doesn't matter I suppose.
Is it reasonable? Even if the hash was md5, given valid image files, the chances of it being an accidental collision are way lower than the chance of any other evidence given to a judge was false or misinterpreted.
This is NOT a secure hash. This is an image similar to hash which has many many matches in not related images.
Unfortunately the decision didn't mention this at all even though it is important. If it was even as good as a md5 hash (which is broken) I think the search should be allowed without warrant because even though a accidental collision is possible odds are so strongly against it that the courts can safely assume there isn't (and of course if there is the police would close the case). However since this has is not that good the police cannot look at the image unless Google does.
I wish I could get access to the "App'x 29" being referenced so that I could better understand the judges' understanding here. I assume this is Federal Appendix 29 (in which case a more thorough reference would've been appreciated). If the Appeals Court is going to cite the Federal Appendix in a decision like this and in this manner, then the Federal Appendix is as good as case law and West Publishing's copyright claims should be ripped away. Either the Federal Appendix should not be cited in Appeals Court and Supreme Court opinions, or the Federal Appenix is part of the law and belongs to the people. There is no middle there.
> I think the search should be allowed without warrant because even though a accidental collision is possible odds are so strongly against it that the courts can safely assume there isn't
The footnote in the decision bakes this property into the definition of a hash:
A “hash” or “hash value” is “(usually) a short string of characters generated from a much larger string of data (say, an electronic image) using an algorithm—and calculated in a way that makes it highly unlikely another set of data will produce the same value.
(Importantly, this is NOT an accurate definition of a hash for anyone remotely technical... of course hashing algorithms with significant hash collisions exist, and is even a design criterion for some hashing algorithms...)
>I wish I could get access to the "App'x 29" being referenced so that I could better understand the judges' understanding here. I assume this is Federal Appendix 29 (in which case a more thorough reference would've been appreciated). If the Appeals Court is going to cite the Federal Appendix in a decision like this and in this manner, then the Federal Appendix is as good as case law and West Publishing's copyright claims should be ripped away. Either the Federal Appendix should not be cited in Appeals Court and Supreme Court opinions, or the Federal Appenix is part of the law and belongs to the people. There is no middle there.
Just go to a law library.
Do you know that judges routinely make decisions based on confidential documents not in the public record? Is that also bad?
The closest with a copy of the Federal Appendix is ~2 hrs away from me (or on LN if I pay for a subscription). It should be free and online, because it probably can't be copyrighted and because simplifying public access to the law is an unambiguous public good.
> Do you know that judges routinely make decisions based on confidential documents not in the public record? Is that also bad?
Of course not; the particularities of a given case is a very different concern from a document whose content is critical to interpretation of precedent. Also, the copyright claims on confidential documents might be valid, whereas any copyright claims on cases in the Federal Appendix probably aren't valid; see how of the government edicts doctrine was applied in Georgia v. Public.Resource.Org.
You're assuming accidential collision. Images can be generated that intentionally trigger the hash algorithm while they still appear as something else (a meme, funny photo, etc.) to a person looking at them. This brings many possibilities for "bad people" to do to people they hate (like an alternative to swatting etc.)
So you're saying that I craft a file that has the same hash as a CSAM one, I give it to you, you upload it to google, but it also happens to be CSAM, and I've somehow framed you?
My point is that a hash (granted, I'm assuming that we're talking about a cryptographic hash function, which is not clear) is much closer to "This is the file" than someone actually looking at it, and that it's definitely more proof of them having that sort of content than any other type of evidence.
I don't understand. If you contend that it's even better evidence than actually having the file and looking at it, how is not reasonable to then need a judge to issue a warrant to look at it? Are you saying it would be more reasonable to skip that part and go directly to arrest?
I find it useful to compare the reactions of O'Reilly and Intel. Schwartz worked for both (he wrote Learning Perl and co-authored Programming Perl for O'Reilly and made them plenty of money). He cracked the passwords of both companies without first getting permission.
O'Reilly's sysadmin told him off for not getting permission, and told him not to do it again, but used his results to let people with weak passwords know to change them.
Intel's sysadmin started collecting a dossier on Schwartz and ultimately Intel pushed for state criminal charges against him.
O'Reilly's sysadmin testified in Schwartz's defense that he was an overly eager guy with no nefarious intent. So - kinda-sus or not - Intel could have resolved this with a dressing down, or even termination if they were really unhappy. Intel _chose_ to go nuclear, and invoke the Oregon computer crime laws, and demand the state prosecute him.
No one watch EU auditions. At most I'll read a short resume. It also is way more impersonal than French senate's audition with clear rules to limit spectacular actions/speech from auditors.
They shouldn’t be allowed to pick and choose what to show up for. If they don’t want to attend hearings, then they shouldn’t get to lobby (meet with) MEPs.
My understanding is that co-mingling was originally a distribution optimization. I can’t remember if I was there under the initial rollout or they had tried it, stopped it, and rolled it out again during my tenure, but when I started in 2009 it wasn’t a thing, and people were opinionated about why it wasn’t a thing (to protect seller reputation), but it was obvious how it could reduce shipping times (if you have your inventory on the west coast, but a buyer on the east coast, picking from another merchant reduces shipping time and cost and wasted warehouse space partitioning everyone’s inventory).
However, Amazon has abandoned any idea of consistent reliable shipping or even delivery “promises”, so the only thing co-mingling does is reduce shipping costs and warehouse space at the customer’s expense. That’s the antithesis of what Amazon delivery used to be. It’s sad to see all the work we did on Prime and Delivery Experience get washed down the drain. Prime used to be a no brained for anyone who used Amazon regularly, and now I’m not even sure if there is discrete value there anymore, rather than just a mishmash of unrelated, mediocre up upsell opportunities.
The incident impact (nodepool upgrade issue) seems to be matching the speed of mitigation rollout. One does not want the cure to be worse than the disease; roll forwards should be slow unless the impact is high (and even then, it should be a rollback/freeze rather than fast roll forward).
Google docs is:
1. Free.
2. Does not require any infrastructure investment.
3. Has built-in access management system.
4. Easy to collaborate in.
5. Hosted on a 3rd party that is highly unlikely to intervene.
> put that Web page at a Google Docs URL (which, again, you don't control)
What is the alternative? Bring up an AS, hook it up to a couple of dark fibers, and host it off your battery and solar panel? Because you do not control your ISP, hosting provider or power provider either. You barely control the hardware you bought.
You independence depends on benevolence of other players, and Google is most likely to remain benevolent in this case.
Reasonable degree of control. Being able to put up a Web page at a domain name registered to you is just the beginning of tablestakes in this business.
