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Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

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Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#241

Post by [deleted] »

alphazard wrote: post #139
AcerbicZero wrote: post #135

Earlier quoted context omitted.

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.

[deleted]

Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#242

Post by devmor »

joshuamorton wrote: post #108
chaboud wrote: post #92

Earlier quoted context omitted.

This is a deeply problematic way to operate. En masse, it has the right result, but, for the individual that will have their life turned upside down, the negative impact is effectively catastrophic. This ends up feeling a lot like gambling in a casino. The casino can afford to bet and lose much more than the individual.

I think the full reasoning here is something like 1. It was unclear if a warrant was necessary 2. Any judge would have given a warrant 3. You didn't get a warrant 4. A warrant was actually required. Thus, it's not clear that any harm was caused because the right wasn't clearly enshrined and had the police known that it was, they likely would have followed the correct process. There was no intention to violate rights,…

Yeah that is about my understanding as well.

Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#243

Post by briandear »

Serious question: a Google employee is not law enforcement. So if they are examining child pornography, in even only to identify it, aren’t they breaking the law?

18 U.S.C. § 2252

… c) Affirmative Defense.—It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant— (1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof— (A) took reasonable steps to destroy each such visual depiction; or (B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

So the Google employee would both have to “promptly” notify law enforcement AND not show it to any other person unless law enforcement and also have fewer than three pieces of content. And additionally, assigning hashes/etc — does that mean the file was preserved (otherwise what’s the hash representing? A photo they once found and then destroyed? How could law enforcement prove that the hash represented a prohibited image in order to establish probable cause?) “we say some random string of characters represents an image that we saw is child porn, so now you can issue a warrant.” What protections does the user have against a warrant being issued under false information? If the original image no longer exists, then how could the warrant be challenged? If the original image does exist — is Google storing it? And if they are storing it, aren’t they themselves breaking the law?

In other words, do Google servers knowingly have child pornography on them? And does a private employee have immunity from prosecution if they don’t immediately notify law enforcement and also don’t show anyone else? I could see an instance where an employee shows his or her supervisor prior to calling law enforcement — which would be a violation of that law since the law explicitly says “any” person other than law enforcement.

I am being somewhat tedious here, but I am genuinely interested in how Google can handle this without breaking the law themselves — more specifically the employee who, at the time of classifying the image, is in possession of illegal content.

And does Google have some de facto exemption that wouldn’t apply to a smaller founder who had to contend with user created content and followed the same “assigning a hash” process as Google?

What are the best (legal) practices around this, specifically around smaller companies that might have to contend with these issues?

Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#244

Post by wizzwizz4 »

alphazard wrote: post #139
AcerbicZero wrote: post #135

Earlier quoted context omitted.

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.

> 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.)

Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#245

Post by HideousKojima »

alphazard wrote: post #139
AcerbicZero wrote: post #135

Earlier quoted context omitted.

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.

Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#246

Post by briandear »

startupsfail wrote: post #112
ok_computer wrote: post #94

Earlier quoted context omitted.

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 a…

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).

[flagged]

Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#247

Post by HideousKojima »

everforward wrote: post #214
refulgentis wrote: post #199

Earlier quoted context omitted.

> 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 look…

> 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 ha…

>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

Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#248

Post by ndileas »

rangestransform wrote: post #221
TZubiri wrote: post #209

Earlier quoted context omitted.

You forgot your IANAL, but thankfully it's obvious. That's a ridiculous desire. In that world, if I delete your comment, and you kill me in retaliation, you should be let free if you argue that my deleting your comment infringed your right to free speech?

What I mean specifically is that because the police saw illegally obtained evidence, all evidence collected afterward after that point should be considered fruit of the poisoned tree and inadmissible

I think reasonable people can disagree on this. Fruit of the poisoned tree doctrines eliminate bad incentives for law enforcement to commit crimes in their investigations. But when doctrines such as this cause the guilty to go free, it erodes public confidence in the rule of law. Like many things, its a tradeoff - and the legal system is a process of discovery and adaptation, not some simplistic set of unchangeable rules. Justice for one must always be upheld. I think this ruling is pretty good at threading the line here.

Re: Google’s TOS doesn’t eliminate a user’s Fourth Amendment rights, judge rules [pdf]

#250

Post by thanksgiving »

GuB-42 wrote: post #237
_Algernon_ wrote: post #229

Earlier quoted context omitted.

The 4th amendment was written in 1791

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 ra…

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.
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