Obama administration asks Supreme Court to allow warrantless cellphone searches • Hacker News Board

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#51

Post by DannyBee » Tue, Aug 20, 2013, 3:51 AM UTC

cgshaw wrote: post #49

DannyBee wrote: post #42

Earlier quoted context omitted.

The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial. It was never intended to prevent evidence you were st…

Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender. Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute) The truth is, the founding fathers likely could not have…

>Attorney here.

So am I, though not a criminal one :)

>The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.

While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#52

Post by jlgreco » Tue, Aug 20, 2013, 3:53 AM UTC

enraged_camel wrote: post #38

jlgreco wrote: post #34

Earlier quoted context omitted.

Neither it seems, does voting for one of the two main parties.

You have a fourth option.

There are several other options, some more practical than others.

If only we required a hard majority of Americans to vote for somebody for them to win, then abstaining from voting could become an option with teeth. Then candidates would have to convince the public that they should vote for them, rather than just convincing the public not to vote for the other guy. Abstaining is, in my opinion, a respectable choice. Any vote is a vote of confidence in the system; if everybody who didn't like any of the candidates just stayed home instead of "voting for the lesser evil", then the farce that is our democracy would be made plain.

Abstaining isn't the only interesting option though. Another option is enfranchisement where instead of voting on the behalf of yourself you instead vote on the behalf of one of the billions of disenfranchised. National elections in developed countries don't just affect the nation in question but rather the world. The lives of many in other countries literally hangs in the balance during American elections but they are not permitted to participate. Perhaps worse, many Americans are not permitted to vote just because they are not recognized as 'citizens'. Next election, perhaps instead of abstaining, vote on the behalf of somebody who is not represented. An individual doing this is not going to change anything but a national enfranchisement campaign has the potential to be subversive.

We need a discussion on what being a democracy actually means.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#53

Post by einhverfr » Tue, Aug 20, 2013, 3:58 AM UTC

AlexandrB wrote: post #14

grandalf wrote: post #3

Let's all remember this kind of thing the next time we are inspired by a candidate's promises or rhetoric.

Okay. Who should Americans vote for then? Here's what the Conservative party had to say during the 2008 election cycle: "Although our country has thwarted new terrorist attacks since 2001, those threats do persist. That is why our reform of the Foreign Intelligence Surveillance Act was so vital, and why the Democrats' opposition to it was so wrong." Hmm, sounds like they were promising more of the same. If your sugge…

Voting should be a minor part of political advocacy. Make noise. Vote for the parties that will listen to you and try to make policy in favor of what you demand. If they disappoint, kick them out of office by voting for the other guys or at least issuing a protest vote.

What voting does is it gives bite to all the rest of the political action one does during a term of elected office. It is what makes political speech effective. It does not replace it.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#54

Post by tptacek » Tue, Aug 20, 2013, 3:59 AM UTC

libraryatnight wrote: post #22

tptacek wrote: post #12

Earlier quoted context omitted.

I carry around a Tom Bihn bag. I do not generally let people look inside of it. When stores ask, I leave. However, if I'm arrested, the police will be allowed to search that bag, despite it being a physical pice of equipment in my possession. That's because the police do get to search you, rather thoroughly, if you're arrested.

I was about to write a response about how my cell phone isn't a bag. But, then I realized I feel almost as dirty knowing they could go through the bag as I do thinking they might be able to go through my phone. If I've already been arrested for something, why do they need to be in my bag? Clearly they already had what they needed to arrest me in the first place, why poke around for more? (sometimes your posts make me…

Collection of evidence is one of the explicit motivations for search incident to arrest. The whole idea is that they might find more stuff. Think of it as a case where probable cause is implied.

And hey: I didn't make you paranoid. The very- long- settled- law of the land made you paranoid. I didn't make this up!

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#55

Post by einhverfr » Tue, Aug 20, 2013, 4:00 AM UTC

danenania wrote: post #23

AlexandrB wrote: post #14

Earlier quoted context omitted.

Okay. Who should Americans vote for then? Here's what the Conservative party had to say during the 2008 election cycle: "Although our country has thwarted new terrorist attacks since 2001, those threats do persist. That is why our reform of the Foreign Intelligence Surveillance Act was so vital, and why the Democrats' opposition to it was so wrong." Hmm, sounds like they were promising more of the same. If your sugge…

"If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States?" How about a scenario in which all the people who claim to be voting for the lesser of two evils reevaluate their own defeatist attitude? If the only thing stopping a significant enough percentage of people from voting for a 3rd party is the perceived inability to win,…

The problem is that voting for the lesser of two evils is that in the current situation it means, largely, rooting for the loser on the race to the bottom.

Voting is a minor part of engagement. It is not a replacement for everything else. Voting for the greater evil may be good strategy sometimes, even, if it is to punish a party and insist that we need better candidates, or elected officers which will follow through on things.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#56

Post by einhverfr » Tue, Aug 20, 2013, 4:01 AM UTC

brymaster wrote: post #46

This that same Obama that was on TV two weeks ago saying 'We don't have a domestic spying program' and that same Obama that a few days later was 'promising greater oversight and transparency and insisting he had no interest in snooping on ordinary citizens.' ?! This feels like an Orwellian nightmare that I just woke up in.

If he spies on everyone, foreign or domestic, is it a "domestic spying program?"

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#57

Post by adventured » Tue, Aug 20, 2013, 4:04 AM UTC

brymaster wrote: post #46

This that same Obama that was on TV two weeks ago saying 'We don't have a domestic spying program' and that same Obama that a few days later was 'promising greater oversight and transparency and insisting he had no interest in snooping on ordinary citizens.' ?! This feels like an Orwellian nightmare that I just woke up in.

Yep, they're all the same Obama. He's a politician, nothing more, and with all the negative connotations that implies.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#58

Post by tptacek » Tue, Aug 20, 2013, 4:04 AM UTC

cgshaw wrote: post #21

tptacek wrote: post #9

Careful about the "warrantless" here. It's true, it's a warrantless search, and don't think I'm saying that's an illegitimate concern. However: The police already have broad authority to search you and your immediate person incident to an arrest. If this is news to you, you really want to read up on it. This is one of the big things that makes a formal arrest different from mere detention, and one of the reasons the…

Attorney here. The search incident to lawful arrest doctrine is rooted in officer safety. Specifically, the Court says officers should have the ability to look for guns and contraband when someone is pulled over and it's likely they are armed or their immediate person or vicinity poses a threat and/or has evidence of a crime. The courts have decided that any drug suspicion means they are likely to have a weapon, whic…

Not an attorney here.

The case we're talking about was search after arrest.

If immunity [to a warrantless search] is to be conceived of as a rule, there is one exception that has been established as firmly as the rule itself. The government may search the person of the accused when legally arrested to discover and seize the fruit or evidences of crime.

also (cited in Harris v US):

The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things of effect an escape from custody is not to be doubted.

Officer safety is one of three motivations for search incident to arrest I've read about; two more are evidence collection (as above), and mitigating the risk that evidence that could later be collected via warrant might be destroyed.

Terry stops, on the other hand, are motivated solely by officer safety.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#59

Post by mikhael » Tue, Aug 20, 2013, 4:05 AM UTC

cgshaw wrote: post #49

DannyBee wrote: post #42

Earlier quoted context omitted.

The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial. It was never intended to prevent evidence you were st…

Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender. Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute) The truth is, the founding fathers likely could not have…

I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#60

Post by DannyBee » Tue, Aug 20, 2013, 4:11 AM UTC

mikhael wrote: post #59

cgshaw wrote: post #49

Earlier quoted context omitted.

Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender. Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute) The truth is, the founding fathers likely could not have…

I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?

An interesting question. Again, the main historical reason for the fifth amendment was torture, not to avoid knowing the truth, or that you were somehow magically sacred.

If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine.

Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed).

In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)