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Comment by nrmitchi | Hacker News Reader

The issue isn’t that the buyer is a criminal, but that the source of funds is from (typically organized) criminal activity.

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I don't understand how the 4th amendment would authorize such a search to be required without probable cause.

What search? You have to declare the information or you don’t get the loan.

It’s no more a “search” than the bank asking to prove your identity when opening an account.

The lender is acting at the behest of the government when they follow KYC regulations. The 4th amendment specifically protects against this sort of search of your 'papers'. KYC is a search. It's a government requirement to have your papers searched-- akin to a policeman asking to see your papers before you get the loan. That's a search.

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>If you are stopped by the cops and they ask if they can search your car and you say “yes” then the search is valid. You are allowed to say “no”. They can force the search under certain circumstances.

OK I say no and the policeman has no probable cause to search. What happens next? Am I allowed to continue my elective activity of going down the street, or can the policeman pull out a gun and tell me I'm going to jail if I continue to electively head towards my destination? I think you know the answer -- when I decline the search it has no effect on my elective ability to complete my task of continuing on the roadway. Returning to the loan, the analogy here is I would be allowed to proceed even after declining KYC search.

>You are allowed to say “no”.

Going back to your example of the cops stopping you, when I say no I'm eventually allowed to continue on my way. I'm not turned around and stopped from completing my elective activity. By your logic government could just pass a law that whenever you elect to leave your house, your constitutional rights are waved -- that's just ludicrous and defies reason for having them in the first place. You're not allowed to say 'no' to following the KYC search and keep on going -- It's a forcible search.

If you are stopped by the cops and they ask if they can search your car and you say “yes” then the search is valid. You are allowed to say “no”. They can force the search under certain circumstances.

If you try and get a mortgage loan and the bank asks for details you provide them then the “search” is valid. You are allowed to say “no”. They can’t force the search of you just walk away from the mortgage process.

”Am I allowed to continue my elective activity of going down the street”

Yes, you allowed to continue down the street.

Which is (yet another) bad example to make your point (even if the point is otherwise valid), since the bank's requirement to verify your identity is itself government-imposed.

The point is it not a search

What implications does the 4th amendment hold over commercial property regulations?

The constitution is the supreme law, it applies even to commercial property regulations.

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>Both amendments are restrictions on government, not private entities.

Yes and who imposes the KYC requirement -- government or the private entity? Even when the private entities don't consent, the GOVERNMENT imposes the KYC search therefore 4th amendment applies. Private lender entity is acting as agent of the state who under force of law has been FORCED to follow KYC requirements.

The 4th Amendment does not restrict the demands that one party in a transaction can make of the other. It doesn't comment on contracts between private parties at all.

Similarly, the 1st Amendment does not prevent victims of sexual abuse from signing a contract that forbids them from talking about it.

Both amendments are restrictions on government, not private entities.

However you cannot sign away you’re right to do so - I.e. you can sign the contract and then violate the contract and then nothing happens until someone sued you for breach of contract. The devil is in the details, though. Similarly you also can’t sign away your right to bear arms or sign yourself or children into slavery. Your wife can’t sign away her right to vote. Etc.

You can absolutely sign away your right to bear arms. Imagine, for example, a Disney star signing away her right to carry a machine gun into public places. You can sign away most of your rights.

You can't sign your children into slavery anymore in the US, but that's a special case that violates someone else's civil rights. Selling children and other people into slavery was legal for a big chunk of US history and was not fixed by the Constitution or the original Bill of Rights, but by the 13th Amendment.

You can’t sell yourself into slavery either. The Disney example isn’t a case of signing away rights. You can enter into agreements to do and not do certain things but your rights are not signed away. For example: you can sign a contract that says you’ll never say “Disney Sucks”. You can then go on the street and scream it at the top of your lungs. You’ll be sued by Disney for breaching a contract, but the status of your right to exercise freedom of speech has not changed. You won’t go to jail, for example. It’s not a criminal matter.

The government can take away your 1st and 2nd Amendment rights and you can go to jail for exercising them after that.

For example, judges can tell convicts not to buy or carry firearms.

The government can (arguably unconstitutionally) take away those rights after due process. KYC doesn't involve even probable cause a crime has occured.

Felon in possession laws are also laughably stupid and a horrible example of government tyranny. Someone who say illegally harvested or transported a lobster or had pot at the wrong time in the wrong state isn't less deserving of defending his family than the guy with a misdemeanor for DUI. I applaud any felon who continues to carry, knowing if they otherwise carry themselves honorably they are extremely unlikely to be caught conceal carrying. Thankfully projects like the fgc-9 3d-printed gun make it effectively impossible to stop felons from acquiring firearms and restores their 2nd amendment rights.

I was talking in the context of private entities. Though the government may be able to deprive convicted felons of certain rights (idk the details) it can’t deprive you of Constitutional rights (in theory). For the government to generally deprive someone of their rights it would be inherently unconstitutional. Obviously they can and do literally do this to people via edge cases they can’t do so legally - it would be a contradiction.

Because it's not a search - you're consenting to it as part of something you are doing that is not a right (getting a mortgage, getting a home). The moment the scenario shifts from "this is done to you" to "this is a prerequisite to a thing you are doing" then you have basically no rights.

>Because it's not a search - you're consenting to it as part of something you are doing that is not a right (getting a mortgage, getting a home). The moment the scenario shifts from "this is done to you" to "this is a prerequisite to a thing you are doing" then you have basically no rights.

It is something done to you. It doesn't matter whether you and the lender consent to it happening or not, the law _requires_ it. It's a search of your 'papers' at behest of government. Just because the end goal is elective doesn't mean 4th amendment is bypassed. For instance, buying a bottle of water isn't a 'right' but electing to do so doesn't allow the government to inspect your bank account, even by proxy (by requiring the seller).

You are confused. You can decline to have your papers searched by declining to participate in the activity. Therefore, no matter how unfair, it is not forcible. If the government passed a law forbidding the sale of water to people who did not consent to a search, that would also be lawful. The Constitution does not forbid bad laws.

> would be lawful

yeah ok until a court challenge occurs

Good luck with your court case concerning whether or not the government can require your real details to be on your driver's license.

The law isn’t so cut and dry like that. The court would absolutely rule that since water is an unavoidable necessity that this constitutes an unreasonable search. But I agree that if challenged they would be fine with a search when applying for a mortgage.

Yes, there would be a gradient somewhere. If that law extended to the point where you couldn't get utility water without a background check, some judge would find cause to throw it out mainly because of how silly it was. But on the other hand the water content of even a mildly alcoholic beverage doesn't make showing ID an unreasonable search. There are lots of ways the government can twist your arm into a "search" through this opt-in approach.

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