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Comment by sofixa | Hacker News Reader

As others have mentioned, context matters a lot. The arrested group came back from Syria (where they fought alongside YPG against ISIS) radicalised, and were monitored ever since then. Their alleged crime isn't using Signal, it's just that a French anti-terrorism law allows to be arrested for "organisation with the intent to commit terrorist acts", which the DGSI(internal intelligence services) claims a radicalised group of people calling for a revolution, using encrypted communications, having a bunch of hunting weapons and ammunition, and materials for explosives is. A big stretch on the surface, but they were monitoring them for years, so who the hell knows what else they have.

The real problem is the unlawful detention of one of the men, for which a court finally intervened and he has been freed under surveillance.

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> As others have mentioned, context matters a lot.

No, it does not. While this group is indeed suspicious, detaining them without a proof (and using whatsapp as your proof) opens a serious precedent. Now anyone can be detain for that. And it'll be used for serious suspicious cases later but also will be used against someone like you because someone in the police didn't like how you walk.

> opens a serious precedent

Of note for US readers, France legal system is not a jurisprudential system as in the US. That is, a judge's ruling does not become law - i.e must be followed as law by another judge -, only parliament can make law.

The only instance having a form of jurisprudence power is Cour de Cassation, but that's only indirect: being the ultimate instance of recourse CCass rulings for similar cases have high chances of having similar outcomes. They may (or may not) influence other court rulings but a) they are not law and b) reaching to CCass is not guaranteed, so other courts judges are completely free to rule differently (as long as they abide by law)

That said, holistically these precedents matter as they may give broad strokes on mindset trends from the powers at play.

That's interesting. So even if the judge knows their ruling could be the worst of several options, they're boxed into doing so because it's the law?

Judges are not there to come up with the law, only to execute it.

That's not what I asked, nor is it what I implied.

It’s not clear what exactly you were asking or how it relates to the post you were replying to.

In the USA at least, it's the executive that executes laws. Judges interpret them.

Isn't that always the case when you have rule of law and separation of powers? The legislative body comes up with the law; judges just apply it.

E.g. if the law says "murder carries a penalty of minimum 5 years and maximum 30 years imprisonment", then a judge cannot give a sentence of 4 year or of 40 years, even if they personally believe this to be a "better" sentence.

My understanding of the US system design is that the law as defined by the legislative body is in a way "minimalistic" (and even more so at the federal level), and jurisprudence augments it with the details.

Taking your example, what constitutes murder and minimum and maximum penalty are defined in "broad strokes", and the judge gets to define "in this specific case that person is guilty in a way where they should be sentenced to X years", and that becomes law (IIUC scoped to their jurisdiction), progressively refining and tuning the whole system, because the next judge faced with a similar enough case would be bound by it. The lawyer game is then to argue whether the current case is close enough to a previous one for the previous ruling to match (and thus tying the judge's hands). A thoughtful US judge would consider both the case at hand and the implications of being law-generating when issuing a ruling.

> My understanding of the US system design is that the law as defined by the legislative body is in a way "minimalistic" (and even more so at the federal level), and jurisprudence augments it with the details.

Which really makes me wonder, how the hell to even professionals keep track of that? For regular stuff you literally can have thousands of relevant cases going back centuries as "precedent" to build on.

There are tools like LexisNexis and FindLaw -- professional search engines to help with finding relevant case law.

IANAL but no, the US claim to minimalism is just branding.

The largest jurisdiction like the Federal judiciary, for example, have the Federal Sentencing Guidelines which have a strict point system for criminal sentencing where judges have little discretion due to a Federal “tough on crime” wave.

It really depends on the subfield of law and the vagueness of past legislation.

Yes. In such cases a reasonable judge ultimately aim to bring justice but can only do so within the confines of law. I recall talking to a few who had to rule in terrible ways (e.g remove a child from one's parent custody because of known but obsolete and largely unrelated past records and granting exclusive rights to the other who was known abusive but had only hearsay to back it up) and took every possible course of action to mitigate and make it less unjust but had their hands tied. They were all experiencing unfathomable psychological distress.

What do you mean the worst of several options?

The law is the law, if it's unfair it gets changed.

Having the judge "making it up" as he goes, and then another judge using that sentence 120 years later as precedent like in american courts sounds insane

What you describe does not match reality.

Townshend v Townshend is a ruling from 1848 still being quoted.

Citing Slavery Project did an analysis and found 18% of all current cases in courts either quote slavery rulings or are less than 2 steps removed (quote a ruling that quotes the slavery ruling).

Not sure how that's relevant.

> The law is the law, if it's unfair it gets changed.

That's the part that doesn't match reality.

> That's the part that doesn't match reality.

I mean Spain recently had a big case related to a group sexual assault. Society was up in arms about the ruling (minimum sentence was 1 year, max was like 6)

So the law was amended and now sexual violence has a maximum sentence of 15 years which is more in line with other european countries.

The law, as it's written down, often fails to match closely the particular circumstances of a specific case. Maybe it never gives an exact match. So judges and juries have to interpret the law. That's the reality, whatever legal system you have.

"Precedent" is a way of saving the time of courts and lawyers, by not having to argue the same details every time they come up. And it's not as if every court judgement becomes a precedent; only higher courts can set precedents, and they can only be overturned by higher courts still.

I think this is a reasonable way of approaching justice.

All of that is easy to contemplate. You have extenuating and aggravating circumstances (things that make the situation worse or better for the defendant)

And on top of that you have a window for sentencing. So if murder is lets say 4-20 years in jail. And you were drunk, that makes it worse, but it was not premeditated, and this and that it all adds up and you might 6 years or you might get 18 depending on the circumstances.

This also allows the law to be rewritten from scratch instead of being based on whatever higher court thought in the 1800s.

> You have extenuating and aggravating circumstances

You do; but that's not actually what I was thinking about. That's just about sentencing, and here (the UK) sentencing doesn't fall within the purview of precedent; there are sentencing guidelines set by senior members of the judiciary.

I was thinking of actual points of law, such as what constitutes unreasonable behaviour, or whether possession of some quantity X of illegal drugs is conclusive evidence of intent to supply.

> whatever higher court thought in the 1800s

It's open to higher courts to overturn precedents, if they've become outdated to the extent they no longer make sense. The very old precedents are presumably precedents that make so much sense that nobody has successfully challenged them. If someone runs into an adverse judgement based on an ancient precedent that is unsupportable, no doubt there's some barrister that would like to make their case (and their reputation) at appeal, by overturning it.

> I was thinking of actual points of law, such as what constitutes unreasonable behaviour, or whether possession of some quantity X of illegal drugs is conclusive evidence of intent to supply.

In Roman judiciary those are usually part of the law as written. So instead of having a law about "unresonable behaviour", you have a law explicitely stating that "making noise above X db at night is illegal" or "drinking in the street is illegal" etc. So the idea of what constitutes intent to supply is based on quantity, anything below X grams is personal use etc.

And you can always add aggravating circumstances that "promote" a crime, so you can have such thing as intent to supply counts having drugs and X amount of money on you, or X amount of drugs and leaflets saying you sell etc. In other words you can explicitely state the kind of things judiciary precedent would probably take into account ahead of time.

> The very old precedents are presumably precedents that make so much sense that nobody has successfully challenged them.

Or the higher courts have not taken a case that challanges them. I am not sure about the UK but in the US, the supreme court pretty much picks their cases which means they can arguably allow for dangerous precedent to stay as long as needed by avoiding cases they know would present a resonable chance of overturning. Or equally dangerous oversee cases that maliciously try to overturn positive precedent.

Also the process is slow, tedious and many times expensive. Going back to Townshed v Townshed, it is a case where a will was overturned because a man freed his slaves and his family said that was proof he was mentally unwell to change his will. This, again, is still being cited when overturning wills or when contesting changes late in life. I cannot possibly imagine a more obviously outdated precedent than a judge thinking freeing slaves means you are insane, and yet...

> In Roman judiciary those are usually part of the law as written.

This is increasingly the case as far as UK criminal law is concerned, I think; also to an increasing extent in matters of marriage and children.

But in family law, there isn't much room for talking about precedent, because for many decades Family Court proceedings have been strictly secret. It's now opening up, slowly.

Contract and property law are rooted in custom, i.e. common law; it seems to me that it would be impossible to write down a contract law that didn't have an infinite number of cracks and corner-cases. Do judiciaries that don't have precedent have to re-litigate all those corner-cases from scratch every time?

Not really, that description, and the one provided by the user you responded to is a bit disingenuous. Judges have the option of going against prior rulings all the time, and they do it all the time. But it does usually require some context from the judge for why a different ruling was carried out in this instance, because if they’re basically saying the previous judge’s decision was wrong, that calls into question if that prior case actually found real justice. Additionally, only higher courts (not just small local ones) set precedents for their rulings.

Fighting for a foreign nation and/or mercenaries is illegal in itself

Some countries made an exception for Ukraine…

Such as?

It is legal for Americans to fight for another country, unless it's against the US. In fact the US government said they can't intervene if one is forced to do compulsory military service abroad. It gets complicated fast:

https://travel.state.gov/content/travel/en/legal/travel-lega...

> Fighting for a foreign nation and/or mercenaries is illegal in itself

Nope. It depends on countries (and mood of the year).

Some countries allow to become mercenaries and forbid voluntary fighting for a foreign nation. Some countries allow to voluntary fight for a foreign nation and forbid to become mercenaries. And so on.

France even has the French Foreign Legion...

> France even has the French Foreign Legion...

Which is... the complete opposite of fighting for a foreign nation since it's part of the French army. You can allow foreigners in your army while at the same time making it illegal for your own citizen to join foreign mercenaries

How does "police didn't like how you walk" is similar to "demonstrably returned radicalized from a ongoing warzone"?

Because they have not been arrested officially because they returned from a war zone (it’s suspicious but not illegal) but because they used cryptography.

It should be very clear IMHO; they have nothing, if they caught the group with "a bunch of hunting weapons and ammunition" then they can arrest them for that and that'd be a lot more serious ground for the argument of "intent to commit terrorist acts".

Since it seems they don't have anything, they are criminalizing normal tools and dev tools because your average reader/citizen doesn't know the difference between a hacker and a cracker, let alone the right of privacy vs conspiring. The only nice thing IMHO is that everyone uses Whatsapp and no one considers it "criminal", so by bundling Signal etc together with Whatsapp they are making themselves look like they are exaggerating for the average person.

Depending on when it occurred, traveling into Syria could be a crime in itself. France and other EU countries banned the travel to Syria unless you were associated with a limited number of groups(humanitarian, journalism, diplomatic mission etc.). Joining any warring party was explicitly prohibited.

At least in the US it is illegal to stockpile materials for making explosives without explicit licensing.

>context matters a lot

Not in this current context. You can't detain someone willy nilly for 'intentions' without such intentions being explicitly stated as proof in letters, emails, messages, threats etc.

This is authoritarian pandering 101.

> This is authoritarian pandering 101.

No, this is matter-of-fact anti-terrorism.

Anti-terrorism and authoritarianism go hand in hand, that's been clear since 9/11.

The problem is that government us terrorism scaremongering to justify erasing citizens rights. It's completely valid to be anti-terrorist and prefer alternative choices to fight it.

For example, in my country, both polices and tribunals are severely under provisioned. I'd start with imroofijg those budgets before passing surveillance laws.

> It's completely valid to be anti-terrorist and prefer alternative choices to fight it.

What alternative choices? France suffered multiple highly deadly attacks on it's soil, including two with 100+ graphic and violent dead. What alternative choices are there to prevent them outside of mass surveillance, infiltrating potentially radicalising religious institutions and shutting them down, arresting members of outwardly radical groups stockpiling weapons and materials for explosives (all things the French government is doing).

I see two comments in and we're already making excuses for authoritarianism. Never have I before seen people go "But mass surveillance, civil right violating arrests are good actually!"

"We gotta auth because there are no alternatives" has been used time and again in history to commit atrocities.

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Like it or not, People don't just go around committing terrorist attacks everyday. I, for example, and many people I know, have plenty of equipment to do so if I wanted to (multiple firearms, potential explosives etc), but why would I?

How do you stop actual terrorist groups from committing actual terrorist attacks, the like of which france has seen recently, without being "authoritarian"? A terrorist is almost always a normal person. They likely will not have committed a crime until they do the terrorism.

Like, this is paradox of tolerance stuff. How do you prevent bad actors from taking advantage of your permissiveness and liberal laws? I'm not saying france is in the right to detain someone for using a simple app, because they aren't, but that this action is on a spectrum, and everyone from governments to your local forum admin is desperately trying to find the right point on that spectrum. So what do you suggest?

If your answer is "don't try to stop the terrorists", then you should understand that human society really hates random violence that isn't "normal", so unless you have some way to make innocents dying for no reason "normal", people will give up any freedom to fix that. Maslow's hierarchy of needs isn't good science but people's desire for "safety" is a very very strong desire.

there is an inherent social contract w.r.t. freedom and the societal notion of collective liberty -- freedom provides agency to both good and bad actors.

a free society implicitly accepts this as a risk-reward in order to maximize freedom, therefore a social contract.

and the social contract boils down to a government's obligation to secure its citizens (dependent on the boundaries of the implied social contract and what its participants agree to), and whether or not the balance between security and freedom is agreeable for parties involved.

constantly advocating for more security, at all costs, in order to stop "the bad guy", and then presenting a straw man to rhetorically justify it by asking: how else do we stop the bad guys, is authoritarian, anti-freedom, and patronizing.

freedom has an inherent risk of, well, freedom.

law was a construct designed for accountability, not deterrence, nor prevention because its [modern] philosophical (post french revolution) motivation is centered around optimizing for freedom (ie: political liberalism) and recognizing that actors will act -- it just attempts to add the checks and balance idea which attempts to ensure (that is, uphold a social contract), that bad actors are held accountable for their (free) actions.

you'll never be able to magically "legislate" away bad actors, but you can certainly attempt to "control" them, which presents a very, very large slippery slope of positive and negative definitions, and nuances around objective suspicion and other faculties used for discernment w.r.t. bad actors -- all of which directly violate the philosophical (US) notion of innocence until proven guilty, and very much so move away from any kind of scale where freedom is (attempted to be) balanced.

if you want freedom, you can't just erode the social norms built on foundations of trust, agency, and liberty in order to prevent bad actors from acting freely -- what you're calling for is not a free society by definition, because it seeks to mitigate and or prevent agency before it happens (reminds me of Minorty Report), which is restrictive and anti-thetical to freedom.

freedom comes at a price. freedom is (not) slavery, and i have no interest in participating in a social contract that binds me to chains through freedom risk-averse framings of governance.

>You can't detain someone willy nilly for 'intentions'

AIUI that's lawful in the UK, you can detain people under the terrorism act with only suspicion of intent. It does make some sense, it weighs the level of evidence inversely with the potentially large-scale of awful outcomes. (My understanding hear may be flawed/wrong.)

In order for that not to slip into fascism you need a forthright government that is honourable and believes in the rule of law ... both things the current UK government has proven they do not have.

> freed under surveillance

One of many problems with western societies at the moment is the idea that we can be free while under surveillance.

> they were monitoring them for years, so who the hell knows what else they have

Given the weakness of the elements assembled, why would the DGSI decide to withhold any decisive proof from the eyes of the justice system?

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