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Comment by ceejayoz | Hacker News Reader

Jared Loughner isn't going to be put to death for his search history, he's going to be put to death (or more realistically, lifetime psych containment) for killing six people and wounding more than a dozen others, including a prominent public figure.

Library records have been used in this manner for decades, if not longer. The records are obtained via due process of law. What's the issue here?

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No, I really think Jared Loughner is going to be put to death for his search history.

Loughner is obviously insane, but these searches establish legal sanity, which means knowing the difference between right or wrong, or understanding the consequences for your crimes. Jared Loughner commmited this crime strongly expecting that he would be put to death for his actions.

Does the USA even have lifetime psych confinement? Insanity defenses are almost never successful.

I've heard a proposal, which I generally tend to think is a good idea: eliminate the insanity defense, but give judges the option to send criminals to the insane asylum rather than prison.

Does anyone with greater knowledge see flaws with this idea?

Isn't that what the insanity defense already generally does?

It is supposed to work like that, yet it seems to let the person back on the street at some point. The only real way I can see that as safe is if they removed a tumor or something that was causing the problem.

Yes, psychological treatment is almost ridiculously obviously a better thing to do with criminals than lock them in boxes for an extremely long time. The problem is not with the idea, but with changing a system as entrenched as the prison-industrial complex.

Perhaps its better to simply enable prison systems to treat people with mental illness properly without regard to whether the mental illness was diagnosed or related of the original reason they ended up in prison. Of course, treating mental illness is expensive and requires more staff per inmate, etc... Its my understanding there are quite a few schizophrenics in general population as its simply too expensive to deal with them in a more human fashion. But of course if we are talking about more humane treatment and possibly rehabilitative treatment then we need to extend the discussion to all prisoners.

Does anyone with greater knowledge see flaws with this idea?

Yes. There are cases where the insanity defense is clearly correct, and extended incarceration makes no sense. One example is a man who had become very abusive to his wife and newborn. Medical tests demonstrated the existence of a brain tumor. Removal of the tumor removed his uncontrollable rages and restored his normal state of being. (Along with great remorse over what he had done.) After that, what purpose would incarceration have served other than to derive his wife and young child of much needed income?

In practice, though, I've heard that those who are found to be insane will, on average, wind up incarcerated longer than those who are not. True, it is a mental hospital rather than a jail. But the effect is similar to what you indicate. With the twist that discharge happens only after medical professionals judge that the person has improved, rather than having the discharge happen according to a guess by the judge.

I hate to add noise to the conversation, but I would like to thank you for changing my opinion on this matter. I was wrong and now I understand why.

Knowledge of likely punishment and knowledge of wrongness are entirely separate things. Protesting the government in Iran might get me punished, but that doesn't make it wrong.

It does in a system where the law determines right and wrong.

Does the USA even have lifetime psych confinement?

Different jurisdictions have different laws. Loughner looks set to be tried both under United States federal law and Arizona state law.

John Hinckley, Jr.

http://www.law.umkc.edu/faculty/projects/ftrials/hinckley/hi...

was found not guilty by reason of insanity after attempting to assassinate President Reagan. He has been confined since then as an involuntarily committed psychiatric patient who is deemed a danger to other persons, although he has had some supervised furloughs from the hospital. He is likely to be under court supervision his entire life. The law under which Hinckley escaped conviction has since been changed, so that an insanity defense for a crime committed in DC is now much harder for the defendant.

Do you say that because you think his search history is the piece of evidence that is going to prevent him from making a successful insanity plea?

The requirements for an insanity defense are far too strict in their current state after the reform legislation in 1984. Legal sanity is a backwards concept, but given the amount of effort that is being put into this case (and that he's being tried in federal court for killing a federal judge) this is exceptional and not something we should use to define what is common practice.

However, it's certainly wrong and I dislike it, but at least my internet license will be shiny.

Yes.

I still don't see the problem here. The only things that aren't subpoena-able are things covered by doctor-patient confidentiality or attorney-client privilege. My phone calls and credit cards and bank accounts are similarly subpoena-able. The privacy issue isn't that this stuff is made available to investigators through due process after they already have reasonable suspicion, it's when investigators just go on a fishing expedition through it.

Not all states recognize the doctor-patient privilege. For example, Massachusetts does not.

And attorney-client privilege is not absolute.

I have no idea where Arizona sits on either of those issues.

FYI: Arizona does not allow the insanity defense in capital crimes. If he's mentally fit to stand trial, he faces the death penalty.

Good point. But: The library records will have an actual eye witness, though. In that case a real person can confirm that the 'bad guy' got the book personally. That is not the case with online search.

The problem I see is that it makes people easier to frame if 'soft evidence' suddenly becomes 'hard facts'.

Here is a highly constructed unlikely case as an illustration: Suppose, someone sneaks into someone else's house. He performs a few searches on fundamental religious topics and bomb building and plants some large quantities of questionable substances in the garage. Then the intruder tips off the police anonymously. How do you think the home owner will get out of this?

I don't know. I'd be at least a little bit worried.

your best hope in this case is that you'll be tortured and still wouldn't be able to provide the details on the questionable substance - that will prove your innocence.

The searches aren't really necessary in that situation, though. Planting guns and explosives and tipping the cops off anonymously would do the job just fine without a search history. Hell, the cops might consider the lack of search history an indication that the person covered their tracks by using a library computer or something.

Note that all public libraries, sensitive to the personal privacy issues that borrowing records represent, only retain such records for the minimum time required. In most libraries once you've returned a book the library retains NO record of the borrowing and thus there is nothing to subpoena.

Compare and contrast with Google's "we'll keep records of all of your searches forever" policy.

Google does say they'll anonymize search log data after 9 months... though I can't find any claim they'll ever delete it, and it's not clear how strong the anonymization is.

http://www.techrepublic.com/blog/networking/google-changes-d...

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