Hacker News Reader

Hacker News

Comment by mike_hock | Hacker News Reader

Parent Full thread

mike_hock

> If you're going to conduct criminal activity, do it in the privacy of your own home.

> That was the original intention of the 4th amendment.

Wat.

The intention of the 4th amendment was to enable criminal activity, but confine it to private property?

Not to protect citizens' privacy from government snooping without probable cause?

The intent was to prevent the executive branch from indiscriminately "searching" (and hidden microphones are a form of search) innocent people without any cross-check from the judicial branch. The fact that you can "conduct criminal activity in the privacy of your own home" is a side effect, not a design goal, of the principle that a free society is worth the risk of letting a few criminals slip through the cracks.

View on HN

> Not to protect citizens' privacy from government snooping without probable cause?

> The fact that you can "conduct criminal activity in the privacy of your own home" is a side effect, not a design goal, of the principle that a free society is worth the risk of letting a few criminals slip through the cracks.

You can't really separate the two ideas. If you look hard enough, every single person is a criminal. That's why we can't have total surveillance. We would end up with either total prosecution or, more likely, selective prosecution by those in power silencing the dissidents.

So, actually, grandparent post has it "more" correct. The goal is to let everyone be a criminal (since we all are in some way other) and the means to that goal is preventing "government snooping without probable cause".

This is a much deeper problem - there are so many laws, and so little public knowledge of many of them, that it's pretty close to being true that anyone the government wants to coerce into doing something against their own interest can probably be threatened with being charged with something (with at least reasonable chance of success in convicting).

When the best unpaid legal advice you can find says "Don't talk to police" already* - think how much worse that situation is going to get if the FBI gets away with saying "recording every conversation you ever have in a public place just in case we want to take it out of context and use it as evidence against you is entirely legal, moral, and ethical, and no warrant or any form of external oversight is required for us to do it".

When "every single person is a criminal", there's a deeply disturbing imbalance in power between law enforcement and the populace. It won't just be the dissidents, it'll be everybody that stands in the way of career-climbing LEO or profit seeking civil-asset-forfiture-funded LEO organisations (in fact in my worst dystopian imaginings, not prosecuting selected dissidents will be how the LEO community controls the political class...)

*https://www.youtube.com/watch?v=6wXkI4t7nuc

When "every single person is a criminal",

That is tyranny ^

Tyranny? This is America!

Here is a fun fact about "don't talk to the police". The advice applies to everyone, even the police. The union regularly warns members about this. You cannot avoid answering questions as a police officer but if you're being compelled to talk without the presence of an attorney, there are limits on what the superiors can do with the statements.

So basically in case your superiors are planning to put criminal charges on you, you should ask if you are at liberty to not talk without an attorney present.

So remember when you hear the "don't talk to the police" line that even police officers don't talk to the police.

The 4th ammendment is meant to protect you from the power imbalance with the government. Or at least that's how it seems to be interpreted by the courts.

Kyllo v. US ruled that heat-cameras mounted on helicopters were considered a "search" and could not be committed without a warrant because most people do not have heat-cameras and helicopters.

But everyone has ears (and microphones obstensibly work as well as ears in public spaces). The government has the right to investigate on the same level as normal citizens, in a way. Binoculars are also fair game, because a lot of people have binoculars.

The "expectation of privacy" is usually evaluated as "if somebody could try to spy on me, would they be able to do so relatively easily?"

In a way, this 4th ammendment interpretation is what protects us from NSA mass-surveillance. Because only very few people have the resources necessary to set up such a network, you can end up with an expectation of privacy.

And while you don't have an expectation of privacy with regards to tor nodes (anybody running a node could be trying to watch you), IIRC expectation of privacy comes in if , as in the recent case, the gov't runs a very large amounts of nodes and cross-references the data to "find" people.

And why pretend that the privacy of your home is so special? The only thing keeping laser microphones from being aimed at all of our windows is a 5-4 decision in Kylio v. US, and Scalia is dead, and Clinton is going to be appointing the next Supreme Court justice. Clinton (DLC) Democrats love surveillance even more than Bushes.

https://en.wikipedia.org/wiki/Laser_microphone

https://en.wikipedia.org/wiki/Kyllo_v._United_States

edit: If you downvote, I'd appreciate you telling me why what I said is incorrect, instead of possibly reflexively reacting to the fact that Scalia is being mentioned in a positive way and Clinton in a negative way.

> The only thing keeping laser microphones...

The legality has nothing to do with it, as it has been demonstrated over and over that law enforcement will employ methods that can charitably be described as "legally questionable" and then attempt to hide it (see stingray). What is stopping them is limitations imposed by the physical world - both in number of windows and the fact that laser mics don't work the way they're portrayed on television. This is the reason why digital key escrow is infinitely more dangerous than physical key escrow (like fire department lockboxes).

Laser mics can get better, and I've got a window in every room but the closets.

I was pointing more to the fact that angle of incidence needs to be carefully figured into the placement of both the emitter and receiver - for every window. Better laser mics won't change laser physics or the logistical challenges.

First, Supreme Court Justices are pretty much inscrutable as far as their jurisprudence before they join the bench (see: just about any justice in modern history). Knowing anything about the president's political leanings tells us next to nothing about how their nominees will decide cases, beyond knowing the nominee themself.

Second, as soon as Trump and Clinton are locked in (after the conventions), the Republicans will cave on Merrick Garland, rather than have Clinton nominate someone. The next Supreme Court justice is Merrick Garland, an Obama nominee.

This is a possibility, but if they don't cave, Clinton is not putting in Merrick Garland. And I don't know that Merrick Garland has any sympathy for Scalia's argument.

This is a case where the more liberal justices tended towards an anti-fourth argument as long as the surveillance was done in a public place, and neither Obama nor Clinton have shown themselves to have a problem with universal surveillance that I'm aware of, in any case, ever.

There's no reason they won't cave. McConnell even put forth Garland as a nominee they'd like to see from Obama, even though "he'd never nominate him".

I was going to say this is the devil they know, but in this case, it's actually the devil they've wanted.

> There's no reason they won't cave.

Before the election, sure there is. The optimal course would be to wait until the elections happen (or at least until polling shows a clear advantage one way or another), then either approve Garland or refuse until Trump is inaugurated.

>Clinton (DLC) Democrats love surveillance even more than Bushes.

I'd disagree. The complete and absolute infatuation with surveillance by both the Bush's and the Clinton's is the same.

Pessimizer, I think you are wrong, I agree with Stanislav. Republicans don't believe in the right to privacy, they use that as the reason why Texas should be able to restrict dildo sales (among many other things :-)), for instance, and conservatives use their disbelief in privacy to argue they should be able to legislate against consensual sex practices they don't like. Dems generally do support a right to privacy in your home.

Instead of depending on generalizations, I'd say that without Clarence Thomas and Scalia (and also Ginsberg, Breyer, and Souter), it would be legal today to record what goes on inside your home without a warrant. So to generalize about conservatives or liberals in this case would probably not be helpful because both the liberal-leaning and the conservative-leaning justices split. What is absolutely true is that the two most right-wing justices were on the side of the Fourth.

All I'm saying is 1) that the next person to appoint a Supreme Court justice, and the last person to appoint a Supreme Court justice, are both New Democrats who seem hostile to Fourth Amendment defences against surveillance, and 2) that the author of the opinion that protects us from total audio surveillance, and the fiercest defender of the Fourth in the Court is the one currently being replaced.

Take it as you will; I'm not hopeful at all, but there's nothing I can do about it anyway. I honestly believe that any justice that Emperor Trump would put on the court would be more likely to preserve that view than not, and the opposite would be true for any Clinton appointment.

Obama may be anti-4th, as nearly every President is (being an Executive whose rights are limited by the 4th), but his SCOTUS appointee isn't, at least as seen below:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

Trump has no principles and flip-flops every other second so how can you know what he will do?

That is a fair point, but a simple rephrasing sidesteps that and still maintains the thrust of the argument: a justice that readily defers to 4A is more likely to be appointed by an unprincipled flip-flopper than a consistent strong state advocate. It is the same logic that makes the selection of a half empty cylinder rational in a game of Russian roulette, when the alternative option is a full cylinder. A mechanism for a vote of no confidence sure would be nice right now.

Conservatives have a pretty obvious hole in their logic, where they both want to legislate morality and reduce the state's ability to enforce such legislation. The modern liberal on the other hand is much more single minded in the expansion of federal responsibility, and logically granting the powers necessary to accomplish said responsibilities (firearm registration, clipper chip, etc). Pretending that it isn't a false choice for a moment, I'd prefer the confused conservative position.

On one hand, it's isn't a false choice -- the reality is that if you want to support a political candidate in the US in 2016, you're making that exact choice.

On the other, I totally agree -- they both want to legislate morality.

On the gripping hand, I'm forced to wonder if there was a situation where conservatives started burning their garbage in their home, would liberals be OK with it? Or is the "gay sex in the home" thing only relevant because it happens to be the Republicans big fear?

assuming it were known but not spread, e.g. people proudly announced burn pits, but captured and buried their exhaust. That's the only way to torture this analogy into shape.

> ...if you want to support a political candidate...

That is the false choice, also commonly found in the form "the lesser of two evils" or "the most electable".

> That's the only way to torture this analogy into shape.

I can think of a better one, better because it actually happened. An anarchist starts making a bunch of noise about how 3d printers enable individuals to produce extremely low quality guns in the privacy of their own homes. Liberals are outraged, propose legislation to ban such activity - then float the lead balloon of 3d printer technology regulation. Like the burning garbage analogy, externalities are used as justification for liberty curtailment, but unlike burning garbage - such externalities are not a certainty (in fact home firearm production has been legal for a very long time). The liberal's real beef is with the threat to the state's authority, the more often the state's regulations are sidestepped - the weaker it appears.

So the short answer is this: liberals, like conservatives, are fine with private activities that don't threaten their world views. Unfortunately liberals have a very detailed idea of the way the world should work, whereas the conservative imagination doesn't go much further than approved penis destinations.

I think your characterization of liberal and conservative is inaccurate. First, there is no central summary of what the views are for these groups.

Liberals are okay with private activities that don't hurt anyone, so they are okay with sexual activities. They think people own their own bodies, so they are okay with taking drugs like pot that don't hurt anyone; harder to say where the line goes with harder drugs. Burning trash in your backyard hurts the environment, and hurts people who live around you, so they are generally not okay with that.

Conservatives want to give you freedom to do what you want, and they say they want to be free to make choices. But of course they want things to be like they were in the past, so they don't like freedom to be gay or whatever. They hate the concept of global warming exists, I think because it leads to their actions might hurt others (like buying a gas guzzler). The problem really becomes apparent when conservatives deny science, in the earth is 8000 years old crowd, or the truly childish fantasy that 99% of scientists are only in it to make money and are happy to lie, that's why there's collusion about global warming.

Conservatives want to have a gun in their house if they want it. The liberals next door might say you are statistically more likely to accidentally shoot someone else or even your own family, so get rid of that to make us all safer - but this is more of a middle ground.

It's not about threatening my world views, I'm a liberal and that's all wrong. Liberals or progressive people want to learn and advance, they want to base their actions off of facts. Conservatives generally make their decisions based on ideology. I have changed my opinions on many things during my life, based on facts and my own experience. When I was a kid I didn't know any gay people, I wasn't sure what to think of them. As an adult, I'm sad to think of how they quietly suffered their whole lives. If cons were really operating based on facts, they'd not be so afraid of trans or gay people, because facts show there is nothing to be afraid of. Facts tell us about the conspiracy in the catholic church to hide predators - there's no international conspiracy to help trans people.

> I think your characterization of liberal and conservative is inaccurate.

That can go without saying - did you really think that I was trying to comprehensively describe such complexity in less than a dozen sentences?

I think your characterization certainly adds more color, but you go wrong with "they want to base their actions off of facts". It would be more accurate, and succinct, to say "they are utilitarian". The goal is a world in which the maximum number of people enjoy the maximum number of "rights" (libs have a very different list of rights than the enumerated ones cons stick to). The utility to achieve that goal is the state. So it isn't fact based, it is much more "the end justifies the means". Your characterization of conservative thought as an "ideology" isn't inaccurate; with the exception of the logical defects introduced by religion - the ideology is a precept based bottom up approach, starting at individual rights. Whereas the liberal approach starts with the end goal and works backwards, which makes it much more likely to run roughshod over individuals - because the needs of the many...

Hopefully that helps you see my prior post as less "inaccurate" and more "I don't agree because feelings".

Just wanted to say thank you to you guys for following up my comment with a couple that really made me learn and think a little more.

As I approach my mid-30s, I realize that both liberals and conservatives are so incredibly biased in their first-principles that the ideologies will never reconcile. I just wish both sides realize their differences arise from differing assumptions, not differing conclusions. (The conclusions of what is "right" are just opinions derived from assumptions.)

No problem. HN actively discourages this sort of discussion, for a lot of good reasons, but I can't really help myself. Because I can't help myself I'll take your "differing assumptions" and say that I see it like a disagreement over software design principles - rooted in a differing in cost/benefit valuation between the stakeholders. On one extreme end of the spectrum you've got anarchists who want a logically and morally consistent system that scales from a single individual to a society - which is like insisting that the entire software stack be formally verified. On the other extreme you've got statists that are largely unconcerned with implementation details that may be immoral and illogical so long as the end result mostly works - php web developers :) Both approaches have different costs and benefits.

Yes, this was a good discussion.

Clinton winning in November is far from a sure bet, IYAM.

With the semi-libertarian concept of "crime" the founders had, it is quite hard to commit a crime in your own home.

Murder is one example.

Indeed. When all crime is property crime, you must have someone else's person or property present to commit a crime.

Whether your body is your property or not is for another philosophy debate.

A bit of a and a bit of b. The intention was to protect private property from government snooping without probable cause. It was a way to balance property rights against the governments' law-enforcement powers.

Could you qualify your use of "private property" to account for the many ways in which the "property rights" are assessed in terms of the 4A, e.g. in terms of surveillance?

Personally, I don't think the 4th amendment has much to say about surveillance. It protects four enumerated property rights: houses, persons, papers, and effects. If you have a property right in something, the government needs a warrant. If you don't, it doesn't.

I don't think surveillance is good, but I'm strongly opposed to twisting the interpretation of the Constitution to fight in courts battles that should be fought in the political realm. We have a real problem with excessive surveillance and over-policing in the US (but also in the UK and other places, to be fair). But the people want safety and security. That's democracy.

I would put the emphasis on "private" rather than on "property" - if a house I rent contains a person and their papers or effects, they enjoy 4A protection even though I do not own the house, the person, or their papers or effects.

A good intro to the US 4th amendment for anyone needing background details is at: https://www.law.cornell.edu/wex/fourth_amendment

The key element in the Oakland FBI story seems to be the idea that a conversation whose participants might reasonable believe is private in nature that happens in a public place can be recorded without a warrant.

Consider conversations in: a hotel room, an office room, an office conference room, an empty office or hotel elevator, a hotel lobby, an otherwise empty bus stop, an elevator occupied by others, a city bus or subway car with others nearby.

At what points on the ranges of private to public spaces, and numbers of others present & in eavesdropping range does an expectation of privacy fade away?

For a startup perspective, in which spaces/places could one speak candidly about financials or the latest funding round and believe that one's speech is truly private?

2016: The year the Elevator Pitch died…

(Now I'm wondering who's bugging every conference venue and nearby hotel elevators around Disrupt/TechWeek/SxSW/YC interview/etc venues? I wonder how often bug installers find competitors bugs, and whether they compete or collaborate with each other?)

Renting confers an enforceable property right.

I would just like to point out something, not entirely focused at you, but because I see that phrase and similar about "well thats democracy for ya.."

America is not a democracy.

It is a Constitutional Democratic Republic.

Words have meaning, And I would highly suggest that anyone reading this, begin using that phrase when referencing our government.

A democracy is mob rule, and with a "mob" so ruled by propaganda and easily influenced by the oligarchy corrupted fourth estate, democracy without the Constition or Representative government is nothing but doom.

What America needs is to forget their petty hegellian dialect issues, unite around the enlightenment ideals that inspired our hard won revolution from the british Monarchy, and focus on the return to and enforcment of the principles of the Constitution.

Looks around at my local Australian politics... Nice handbasket here, I wonder where we're going?

How is it democracy when a group of individuals hold concentrated amounts of power? And when I say individual, I mean corporations, based on current standing legal precedent.

I usually agree with a lot of the things you've stated on here in the past, but I'm really disappointed that you:

a) Conflate democracy with the current sham political system we have in the USA.

b) Don't think that the 4th amendment has much to say about surveillance.

The will of the few is not will of the people. That's the exact opposite when we think of democracy as the "tyranny of the majority".

The formet FBI agent was lying through his teeth, and that's why he caged by adding the line about the judge. The FBI believes (as do criminals and defense attorneys) that whatever they do is legal unless they are caught, tried, and convicted -- facts in the court, not facts on the ground. And the FBI gets the privilege of being mostly free from law enforcement oversight in the first place.

I've come to the opinion that warrants are simply there to provide an audit trail. The executive branch needs to provide a record of what it's up to to the Judicial branch.

If you think in terms of that, current attempts by the executive branch to spy on people without warrants is extremely alarming. You have to ask, why exactly do they have a problem with informing the Judicial branch what they are doing?

> Wat.

It is true if it is true for you. Let's pay attention who says it: "Jeff Harp, a KPIX 5 security analyst and former FBI special agent"

That is absolutely how FBI and large parts of the executive branch see the Constitution. This annoying piece of paper, that prevents them doing their job, and enables criminals to get away with crimes.

> If you're going to conduct criminal activity, do it in the privacy of your own home.

Meanwhile:

http://paleofuture.gizmodo.com/the-fbi-can-neither-confirm-n...

Soon they'll say "if you're going to do or say 'bad stuff', just do it in your own head". And then we'll have technologies that can read and "hear" what our brains think all around us.

Well, if you voluntarily put in your home device designed to listen to you around the clock, and send the data out, you can't complain it listens to you and sends the data out, can you?

That's pretty much exactly what Snowden is telling us we do when we choose to carry a cell phone...

Cell phone is not designed to listen to you all the time. But yes, it is designed for you to be contact-able all the time, so the premise of somebody knowing your (rough) location is there.

Your cell phone is designed to do is maker's bidding. It only has to record when they want it to. You aren't interesting, today. Tomorrow is another day.

I watched the end of this video and had to do a double take (watch?). Said out loud 'wat'!, came here and found out that I still have never had an original thought. Thanks!

I'm pretty sure she was just being sarcastic...

Reply on news.ycombinator.com