Comment by rayiner | Hacker News Reader

Comment by rayiner | Hacker News Reader

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There are two questions in play: can we do it, and should we do it. The empirical usefulness of surveillance is relevant to both.

Re: "can we do it" --

The 4th amendment protects the right to be free against "unreasonable searches and seizures." Not all searches, not monitoring, not tracking. Unreasonable searches. To a lawyer (like 30-35 of 55 framers of the Constitution), "reasonable" is a signal to balance competing interests. That's what it signals now, that's what it signaled 200+ years ago when the Constitution was written.

So in the context of the 4th amendment, that is exactly the right argument to have. Whether a law enforcement tool is effective and necessary is a fundamental question you have to ask in balancing the competing interests of law enforcement and privacy. And that balancing is inherent in deciding whether a search is an "unreasonable" one.

Re: "should we do it -- it is self evident that a determination of whether a technique is effective and useful is instrumental in deciding whether we should use it.

> To a lawyer (like 30-35 of 55 framers of the Constitution), "reasonable" is a signal to balance competing interests.

That is certainly a legal use of "reasonable", but I don't believe it's the one used in the 4th Amendment.

The word "(un)reasonable" is not describing how a decision is made, as used in the expression "reasonable person", which means "someone who uses such qualities as attention, knowledge, intelligence and judgment which a society requires of its members to protect their own interests and the interests of others.”[1]

In the 4th Amendment, "reasonable" is describing a disposition or action derived from or based on examining and validly inferring from evidence, as in "reasonable belief", where it "considers whether an officer acted on personal knowledge of facts and circumstances which are reasonably trustworthy, and that would justify a person of average caution to believe that a crime has been or is being committed..."[2]

Without evidence on which to base belief (suspicion) that a crime has been or is being committed, a search is ispo facto "unreasonable", and therefore unconstitutional, regardless of any benefits to interested parties.

My 2 cents, IANAL, etc.

[1] Barron's, cited at http://www.answers.com/topic/reasonable-man

[2] Barron's cited at http://www.answers.com/topic/reasonable-belief

Shouldn't the first discussion be about the legality and constitutionality? If it is deemed to be such, only then does it make sense to be discussing whether it's reasonable. Or are you suggesting that the first part has already been covered?

NB: I'm not a US Person so I don't know the finer points of your legal system.

The legality of a search follows from whether the search complies with the law.

The constitutionality of the search follows from whether the law the search complies with is permitted by the Constitution.

The Constitution asks: "is this search unreasonable?" So, to answer the previous two questions, you usually have to confront the reasonableness question first.

So, in the "Bomb Wall Street," case cited today, does the fact that nobody was charged for planning to bomb Wall Street speak to reasonableness?

No? It has no bearing either way on the reasonableness of the search, right?

It's probably a matter of opinion. Personally, I'd call a search that didn't result in charges for what they were searching for a false positive, if not unreasonable fishing.

"Were charges filed" is not a productive criteria for whether or not a search was reasonable.

A cop can pull you over for swerving on the road for suspicion of DUI, even though he/she has no definitive proof you are drunk - and it may very well turn out you were sober.

This does not make the stop unreasonable.

A search that does not lead to charges is a false positive, but a false positive is not in and of itself indication of reasonable-ness.

"Were charges filed" is not a productive criteria for whether or not a search was reasonable.

In this case, it should be! Keep in mind the kind of evidence they were working with.

And nobody's talking about traffic stops, but call me crazy when I say I think terrorism should entail a slightly higher standard than that.

Careful down this path. What you're saying is that law enforcement re: terrorism should not have to respect the same principles and standards we place on other law enforcement action.

Which is the precise argument that the other side is making. When we special-case terrorism we're no longer on solid ground - whether it's in favor of looser or stricter treatment.

So, here's the thing: the level of false positives, when calculated in aggregate can suggest unreasonable enforcement. If 95% of all searches yield nothing, there is a legitimate question of whether or not your targeting is reasonable. This is the primary legal argument being used, for example, in the ACLU's case against NYC's stop and frisk policy.

But a single case of a false positive, with no further information, cannot be taken as evidence either way. The fact that the Wall Street plot may have been a false positive sheds no light on whether or not the suspicion was reasonable in the first place.

Supposedly there have been 10 "plots" in the last 12 years that have been disrupted by US government surveillance of its citizens. That's much higher than 95% yielding nothing. This is a fact, something we already know.

I think you're making a category with respect to traffic stops, though. It's not "law enforcement" at the point the searches are being done in the context of surveillance, and I'd argue that meatspace comparisons here are inapt on the whole. The level of inquiry through surveillance would be comparable to a LEO having reasonable suspicion of something, then downloading your GPS history and searching your car after you leave it at your destination (imperfect, but close enough for internet debate).

False positives seem like an inevitable side-effect of wanting to minimize false negatives. I've been tuning snort rules for the past couple weeks...

Well yes, if the searches are illegal under FISA/ECPA/etc, there is no point asking if they are illegal under the Constitution. I'm skipping the first part because it's less interesting than the second part.

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