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Comment by mplanchard | Hacker News Reader

> some important principle of rights

Yes, you can't use evidence that was obtained illegally to prosecute someone for a crime. Their guilt or innocence has nothing to do with it.

If illegally acquired evidence was admissible in court, the police would have every incentive to ignore people's rights on a regular basis, conducting illegal searches and seizures, breaking into homes without a warrant, etc., in order to obtain evidence. On balance, this is much worse for society than one guilty person going free.

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How is this different from a random passerby identifying the suspect from the grocery store footage, or a police officer already knowing the suspect? They are just clues until any proof is found (ex. a gun that matches the bullets).

The cops lied about where the suspect was identified?

So the warrant was granted from false pretense.

Assuming the police didn't lie about the connection and the warrant was issued by a judge, both of those things would be fine. The issue in this case is that the police were not forthcoming about the source of the connection, and the connection itself was from a tool that explicitly says that it is not admissible in court. The warrant was obtained based on false pretenses, making the subsequent search illegal.

A judge probably would not rule in favor of a warrant based solely on a tool whose utility is entirely unproven and which itself warns that it should not be relied upon as evidence, while they might rule in favor of eyewitness testimony.

But a random passerby also isn't admissible in court but could be used as a tip, right? If an anonymous person calls the cops and says "I heard someone say that Bob did it", there's no chance in hell that an anonymous person's hearsay could be admitted as evidence in any court, but if the cops get that tip, decide to check Bob's social media and decide that Bob looks a lot like the guy in their CCTV footage, they're not getting a warrant for a search based solely on the inadmissible hearsay, they're getting it based on their determination that the tip that they got does happen to match the footage they have. If they had to manually make a determination about whether a given person's face matched up with their CCTV footage and the warrant was issued on their determination that it does, it seems very complicated to then figure out to what extent the tip itself has to be admissible as evidence, right? Like, if a psychic called a police department with a tip and the cops put a house under surveillance and the surveillance reveals probable cause to get a warrant, should that kill the case because the tip came from supernatural sources?

Again, if the police have sufficient evidence to convince a judge that a warrant is justified, it doesn't really matter what the evidence is, only that it is not misrepresented to the judge and that the judge deems it sufficient.

The main problem in this case was the fact that the police misrepresented their evidence to the judge. It is theoretically possible that a judge may have issued a warrant on the basis of the facial recognition tool, in which case the evidence from the search would not necessarily need to be thrown out. If that were the case, I'd expect the defense to appeal the validity of the warrant, in which case all the questions you're asking would come into play.

Both of those things are legal. That’s the difference.

Because for a random passerby you can have them withness and be responsible for the withness statement. Clearview can fill their database with crap, or even fake some data, to manipulate the police investigation. Because Clearview knows this is not only possible, but also likely, the database matches their should not be used as any evidence. If such tools are used, a lot of innocent people are arrested and just arresting you for a murder, even not guilty, will destroy your life.

Eyewitnesses are notoriously reliable as we know

Eyewitnesses you can at least cross-examine on the witness stand.

so, basically - the court wants to treat Clearview's AI as an unreliable witness?

I always hear this argument of "how is this different from XYZ?" when it comes to applying novel technology.

If Clearview AI is indeed functionally equivalent to some random passerby, then what value-add does it actually have over that baseline? Either it's really the same and there's no value to justify deploying it. Or there's something else at play (say, scale) that's worth examining on its merits and risks.

Well there isn't always a random passerby.

Law enforcement use of AI isn't illegal in Ohio, just that software claims to be inadmissable. Hearsay is often inadmissable. But my understanding is that's because it is not reliable, not because it poisons subsequent investigations with illegal forbidden knowledge once a detective hears thirdhand that they should look into someone.

It seems like a catch-22 here to be in that position. They can't cite it for the warrant but if they don't they get accused of being misleading.

It’s not a catch-22. They can use it, and include it in the affidavit for a warrant. They’re just going to ALSO need some other evidence in order to satisfy the judge that the warrant is justified.

It's a catch-22 because the defense can now attack it for being presented in court when the disclaimer says not to.

They apparently did have enough other evidence to satisfy the judge since they got the warrant without it.

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