With data from Google they can prosecute you for all the things you've done wrong or seem to have done wrong. It just takes an ambitious prosecutor to do it. This pretty much destroys the point of the fifth amendment. The "Don't Talk to the Police" lecture [1] is still relevant today, but if the state has this much evidence of what you do, then I'm not sure that will protect people. It is a nightmare scenario if this sets a precedent on law enforcement being able to vacuum up all of your data about your life.
I agree that Smollett seemingly getting a slap on the wrist was outrageous, but I think that this is Pandora's Box that they're playing with.
[0] https://blogs.loc.gov/law/2013/03/frequent-reference-questio...
The State has always been able to look up phone records, bank records, land records, criminal records, medical records etc etc as in order to pursue justice and prosecute.
How is this any different?
10-ish years ago, it wasn't possible to retroactively subpoena a year of minute-by-minute location history, because unless you had an ankle monitor, that data didn't exist. You couldn't get a letter-by-letter log of every term typed into a search engine or a log of the amount of time spent looking at pages of reference material. You couldn't get a record of every keystroke ever typed into a mail client or word processor. You couldn't get every photograph ever taken by the individual, because cameras didn't automatically send a copy to the mothership. This is way above and beyond standard paper seizure or record demands.
"Write angry letters, but don't send them" used to be good advice, but now that the government can just casually dash off a search warrant to produce every keystroke and every location ping within a year of a suspected crime, we all have good reason to be scared. Why'd you search "marijuana" that day last October? You expect me to believe you were just researching a ballot measure? Pfft.
This makes Big Brother a tangible reality. It certainly feels big to me.
Now it becomes scary only if the authorities decide to go amok and make criminals of us all, but assuming it goes this way without anyone pushing back is not too realistic.
This becomes terrifying when you realize the implications for quashing dissent. An inconvenient activist is an easy target for the legal system.
The other anecdote in that link is the story of Joseph P. Nacchio, a CEO who was convicted for cashing out over $50 million in stock when the price was around $40, only for the price to drop all the way to $2 a year later. The NSA involvement was a failed bid by his defense to make it seem like his trading was legitimate.
This is exactly the point. The way the law is written gives prosecutors too much leeway to convict, and if you become a problem in the eyes of the powerful, they can "throw the book at you".
> The other anecdote in that link is the story of Joseph P. Nacchio, a CEO who was convicted for cashing out over $50 million in stock when the price was around $40, only for the price to drop all the way to $2 a year later. The NSA involvement was a failed bid by his defense to make it seem like his trading was legitimate.
You left out how the government canceled their contracts with Qwest after Nacchio refused to give them access to phone records, which impacted the company's health. There were certainly other problems at Qwest, of course, but given the lax prosecution of many others involved in such scandals, it certainly feels like this is an example of this process in action.
Just like security and usability are tradeoffs, so is this.
Only if that involves a complete overhaul of the police itself. Currently we have body cams that just fail at convenient times, policemen stalking their ex girlfriends and whistle blowers that get the short end of the stick. Giving the police more and more power is more likely to reach a turning point where it inherently starts to attract the corrupt and power hungry, increasing the abuse well above what we already see.
Then they came for the trade unionists, and I did not speak out— Because I was not a trade unionist.
Then they came for the Jews, and I did not speak out— Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
https://en.wikipedia.org/wiki/Mere_evidence_rule
In broad strokes: Originally, the Fourth Amendment only allowed for the seizure of stolen and counterfeit goods, the "fruits of a crime." This was slowly expanded to include the "instrumentalities" of a crime, i.e. the things used in the commission of a crime. The difference between the instrumentalities and mere evidence was always shaky, and eventually crumbled.
40, or even 20 years ago, the State might have been able to note a record of phone calls, postal correspondence (look up "postal covers"), some financial purchases, periodicals subscriptions, and with a great deal of effort, some of my travels and movements, mostly limited to specific port entries and exits, and air travel.
But unavailable would have been: dictionary queries, encyclopedia queries, books read, specific magazine articles read, the contents of virtually all conversations, detailed movement and location history, social associations, detailed purchase history, and more.
Today, mobile devices report location to a precision of inches at a frequency of minutes. Any random query of momentary interest can create a permanent record. As a HN submission earlier today notes, simply casually perusing a document -- clicking a link -- can result in having your home raided and all electronic devices confiscated and held for a year: https://news.ycombinator.com/item?id=21992491
The scope and scale of intrusiveness is absolutely unprecedented.
Yes, the State has some rights and powers. It also has a tremendous responsibility, which it increasingly seems to fail to excercise appropriately.
And I say this regardless of specific country or jurisdiction -- the story linked above comes from Germany, and instances readily come to mind from the UK, US, Japan, China, Russia, India, Saudi Arabia, and elsewhere.
The corruption of absolute power is not bounded by culture, constitution, or ideology.
Anyway to get to your main body I agree and note what makes the scale bad ultimately is abuse potential for it. For a fantastic example being able to look up details of everyone but only 500 years or more ago wouldn't be abusable for instance because everyone is long dead and it wouldn't be viable to try to change ownership based on it because it already diverged for several generations. Even if you could backtrace they couldn't be reconciled very effectively.
The notion of innate human rights is a collective claim on rights. It is not the only mechanism for claims to rights.
States' levels of effective control, and hence, access to rights, vary greatly, from near-absolute to wholly impotent.
This approach is based on rights as a pragmatic reality, not a moral ideal.
So the difference is seeing something through a window with curtains vs. having a camera installed in the room. In principle, not so different. In practice there really is no comparison. It is basically a warrant to ruffle through someone's life.
Which, for what it's worth, is a warrant that is perfectly within the powers of a judge to grant.
At what point do we want the legal system to no longer have the power to scrutinize an individual's history?
I don't believe that a warrant to "ruffle through someone's life" without limits is within the powers of a judge. A warrant to procure relevant evidence to a case being investigated, legally, certainly.
Issuing an order for someone's entire Google history for a year is bordering "an unreasonable search and seizure", by my understanding. Do they have legitimate reason to believe that there is an email containing evidence? Or a document in Google drive? Location data for an entire year - how is this relevant to the case?
That’s different than stating that you would like to browse through someone’s history for the purpose of finding crimes where they may not exist.
He's counter-suing for malicious prosecution.
Also imagine just how much more power law firms on the plaintiff side would have if they want to find something wrong with the defendant's profile. Which, if there is power misuse, like in current society, is bad.
Not under the 4th amendment of the US Consitution they don't, they have the power to grant a warrant for a Specific thing to be searched pursuant to probable cause a specific crime has been committed
General Search warrants are and should remain unconstitutional
With 'Google Home' etc. it changes everything. Door locks, home cameras, audio recordings etc. etc..
Can the argument you had with your wife, totally irrelevant to the case, wherein you got angry and called her a big 'B' be used against you in court as demonstration of your character?
The time is now to be concerned about 'police state'. I think we can mostly have our cake and eat it too. Proportionality matters on all sides.
Edit: A few more: reading a newspaper, turning on a light, making a grocery list, setting the thermostat, going for a walk in the park.
How this seems different is the lack of any limitation on the kind of content that can be turned over. And in my view, that was a mistake on the judge's part for approving such a sweeping request.
For instance if I were accused of committing a crime against X, then I suppose that Google could be asked to turn over e-mails that I wrote about X, but not e-mails about my bicycle. This is how the system prevents the state from going on a hunting and fishing expedition.
What if the Jussie and his manager were using codewords to disguise intent? A search algorithm would not be able to recognise that but a human being can easily infer meaning and intent from the context. What then?
There are no easy answers.
This distinction wasn't a major concern when the former was impractical.
Because of digital records and search agents, suddenly either is practical.
The intent of privacy law has always been to raise the cost of targeted prosecution. E.g. "We want to charge this person with a crime, let's find a crime."
The state absolutely has a duty to prosecute and hold individuals accountable. And in extraordinary circumstances, may even need to target prosecution.
What is unacceptable in a free society is that the state should have the ability to target anyone for prosecution with no effective bounds in the number of simultaneous times it does so (aka everyone).
The difference between Orwell and a safe democracy is scale.
In this case, the state is expecting evidence to exist in the form of incriminating email communication between Smollett and his manager, and possibly additional people. From the public evidence so far, it sure seems like a reasonable expectation! I'm a pretty hardcore civil libertarian, and I'm having a hard time faulting the judge here.
What else do you expect?
The state has probable cause to believe there is evidence of criminal behavior in your <insert anything here>. Therefore the warrant gives them access to it in order to look for that (previously specified) criminal behavior. In this case everyone expects to find a smoking gun in his email - either talking to his manager or talking to someone else. That seems like probable cause to me.
Then why is the warrant not for _that_? Instead, we have a broad-reaching data pull that will be filled with a ton of information is irrelevant.
It's very bad. Text and email should be private, unless it is in the context of the action being pursued. This is just too much data to just turn over willy nilly. Very slippery slope.
>How is this any different?
The cost of doing those lookups. Both in money and time. Looking up an entire life's history would have taken months if not more, and would involve a lot of legwork, from picking up the phone and making calls, to traveling around neighborhoods or farther. That cost limited the charging/prosecution only to people suspected of, or implicated in crimes. Today you can do that on a whim because you don't like a person or because they are your political/business opponents.
There's no new precedent involved, noone ever had any privacy whatsoever from a properly court-approved search. What's the most privacy-invasive thing I can think of? If a judge believes there's probable cause in searching your anus and other internal cavities and authorizes such a search, then such a search is compatible with all the precedent regarding fourth amendment in USA.
No, not really. A physical warrant might be issued for your home, your work and maybe one other place you frequent.
However, because this is very much not a specific search, but rather the whole year of data, it's more akin to issuing search warrants against every business you've walked passed in a year, whether or not you actually entered the premises, and that's just to begin with.
And if you tried to issue warrants in that matter, they wouldn't approved, because you do have certain reasonable expectations of privacy with regards to a court-approved search. Specifically, that a court will not explore things that are not pertinent to the case.
This is a necessary "evil". We give up some freedoms so that we have a civilisation and an orderly society.
And this isn't setting up any precedent that is egregious. This is on the front page of Chicago Tribune newspaper and on the front page of HN. This is not some shady in the shadows invasion of privacy.
Those things do happen and I think we should preserve our outrage for those moments. Otherwise it just becomes background noise to be constantly and without context offended.
Be wary of the motte-and-bailey fallacy - the issue is not that The State can look at certain records in certain prosecutions, its that the records currently being requested are too broad and too potentially intimate to trust The State with.
That creates an almost arbitrary, "this fits my worldview so I'll support rights this time" thought process. Like, "Well, this guy's a Nazi so we should trample his rights. But this woman's an abortion activist, so we should be sure to protect hers."
How do you propose we prevent ideological blindness in the protection of rights? Should we take the government's word that, "this time, it's really worth trampling rights"? Or would you create an unbiased oversight board that tells us when protecting rights is appropriate? Or should each person look at a case and decide for themselves whether or not they should take a stand against rights infringement?
This is not some shady in the shadows invasion of privacy.
I mean this passed the proper checks and balances of the law, and the only reason this is on HN is that's about electronic instead of paper mail, and it involves a big Corp.
No one should keep such records as society is changing and not always to best. This is one of the reasons, privacy is one of fundamental human rights. And is blatantly violated for the profit.
As a legacy of this, the US government doesn't count Jews in the census. (And, to preserve nondiscrimination values, doesn't count other religious denominations either.)
Interestingly, the census does enthusiastically collect race data on everyone. This is logically incoherent; racial groups (such as the Jews, actually) are at least as much a natural target of extermination efforts as religious groups.
(It was also stigmatized because it was a lethal disease that spread by unclear means, but that seems less relevant to the topic at hand.)
But this was a real crazy time. Hypothetical scenario (in the sense that I have not verified it, but I do think it's a very likely scenario to have happened): There were medical records of people with physical conditions before 1933 (so they could be treated) that were used under the Nazi regime to persecute them. Does that mean it that hospitals and doctors maintaining a list of medical records to treat their patients efficiently was a bad idea ?
I don't have the answer to this, I just wanted to point out that this is a delicate issue that society needs to figure out fairly quickly if they want to have an influence its outcome.
I wonder what godwin would have thought about all this :)
Anyway it is not such a hypotetical scenario, nazis were really killing the disabled persons based on their medical record (yes, qwant or duckduckgo for it).
Yes, it is a bad idea that doctors keep those data. If insurance companies get those information (and my dentist said he was already aproached by some company to sell dental records, I wouldnt be surprised if this is a common practice in states) you will have issues. Same with employees etc., even if nothing wrong with your health but there is x% chance that you get terminal disease.
Those records should be handed over to the patient, tamper proofed (no, not blockchain, just RSA will do fine) or stored, but encrypted with patient key. Actually when writting this I remembered that we (as in my country) are having a medical smart card that needs to be given to the doctor to access our medical records. Maybe we already have such a system.
Anyway it is a bit sick comparing google with doctors. The need and trust is on completely different scale not to mention that trust between doctor and patient is handled by laws and hippocratic oath since 257 AD.
With a warrant they convinced a court to issue. This is totally different from e.g. dragnet surveillance.
I'd be weary of them using this data to try to go after him for some obscure crime completely unrelated to the false report (e.g. pics of him walking his dog in a state park that forbids pets).
It's not like this was brought up as part of a single court case if not related which would make it a relevant precedent here.
There is nothing pragmatic about being totally ignorant of Fourth Amendment protections that have been eeked out, injustice after injustice, over two centuries.
In a democracy the job of the police must be difficult.
They should have the right to do it. Actually doing it should be as difficult as humanly possible. It should not be as easy as sending a letter to Google and getting a suspect's entire life records in return.
Because if it's too easy they will be tempted to do it as a matter of routine.
> How is this different from a warrant to search a home?
They have to actually go to the home in question in order to execute the warrant. They can't automatically search all homes.
They can't automatically search all accounts - they need to demonstrate the probable cause to a judge first.
That doesn't mean there should be enormous databases of everything people do for the state to access at will.
For a judge to issue a warrant, a prosecutor or cop has to swear that they have probable cause to believe that you've committed a specific crime. Judges can't just write warrants arbitrarily. (Of course, this process can be abused, but it's still pretty far from a judge being able to authorize pulling the data of random people.)
The Fourth Amendment says: "... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
You worked here and had access to x
you fit a profile or someone you know
you are an enemy of the state
It's bad that one signature from a judge can unlock all of that.
beside, it's not a case of the state tracking persons unwittingly, it's persons willingly giving up their data to private companies.
How about "because he couldn't let sleeping dogs lie"? The guy got a lucky break when someone dropped the prosecution. He had the opportunity to shut up and let the story fade away. He didn't take it.
No matter how lucky you are, if you keep doubling down, eventually the house takes your money.
Perhaps you'd prefer the prosecutor look at some other case but then the exact same question could be asked - why that guy?
So why not this guy?
This story isn't about politics, it's about corruption at the high offices.
He was ready to send innocent people to a potential life sentence or the death penalty (which is how hate crimes are treated), and in fact is still maintaining his lie.
All over a contract dispute. Evil stuff.
Even if you have been naive enough to voluntarily share data with Google.
If Google were to apply the same logic to their tracking, we'd be in a better place. For example, they may want real-time location data for the traffic alerts when using Maps. And they may desire some aggregated form of that data long-term. But I cannot see any business benefit to Google maintaining my personal location data at specific times and dates in the past. There is zero business benefit to keep that level of detail in their logging.
Or, to answer your question more directly, that is the line I do not want to cross - where we are logging personal data "Just in case" we ever might need it. I'd like to see every piece of tracked data tied to a specific business need, and then have it deleted when that need no longer is relevant.
Plow the money into courses on basic reasoning, civics, and grants to non-profit, independent media so that the people benefit when for profit media pushes a war for profit or racial divison for more ad revenue.
The problem here is that they are going about it in the wrong way. Issuing a warrant that says, "Well, show me everything this guy ever did, and I'll tell you the crime I want to prosecute him for later."
That's not how most warrants work. Most of the time it's, "We suspect X evidence generated in the commission of Y crime is at Z location". What this does is say, "We need all his data to figure out exactly what crime was committed". That's an ominous warrant.
Another way to look at that 'duty' is to say [The] state has a responsibility to ensure justice for all. That may seem like the same thing but vagueness is at times valuable given that life rarely satisfies the black and white dichotomies many of us would prefer.
We can have a discussion about how the state should behave without using catastrophic examples to shift debates about principles and policies.
The post I was responding to sees the role of the state as a absolutist binaric executor of often fuzzy laws and rules. The context of this example doesn't have any affect on whether or not that naive belief is a path to a functional and just society.
Whatever happens with Smollett, or the next example, simply doesn't support a belief that every crime should be prosecuted. There was a (hamfisted but entertaining) TNG episode about this for gods sake...
The context is extremely partisan twisting of the justice system on all sides. Normally DA's have complete discretion to drop charges as they see fit. Because of the partisan outrage a Republican special prosecutor has been appointed to overrule the prosecutor and now he's on a witch hunt going through a year of Google records trying to find everything incriminating, this is a farce and high level corruption
Another thing to keep in mind: “igniting racial tensions” as an investigatory justification was how MLK got labeled the gravest domestic security threat to the United States. You’re advocating a categorical justification with a fraught and bloody history.
Better civilian oversight is overdue.
Mens rea is the guilty mind required for something to be a crime. Intent matters as much as outcome or chance of outcome in the judgement of whether a crime has occurred, and explains the use of "sought" in the comment you replied to.
The story was just uncomfortable for me, so I felt relief when contradictory testimony was found. I live near Chicago in an area both white and black, and mainly left-wing. I didn’t dare bring the story up with my black neighbors, and never heard about it from them either, despite its high profile. It was a very self-conscious couple of weeks. In contrast, when Obama was running for office people couldn’t help talking about that, and the sense of pride was real.
There was really no benefit to expressing doubt either; actual tragedies and abuses (Laquan McDonald murdered by the CPD, for instance) are still fresh in everyone’s mind. If current events weren’t as horrific people might be more comfortable expressing doubt and maybe even laughter over a guy with basically a homemade lanyard around his neck.
Making sweeping general statements is good for riling up the mobs but I would implore HN readers to be more pragmatic about these things.
Look at the context. This person sought to ignite racial tensions for personal gain. He was given a sweetheart deal. The State is going after him and those protected him. They (the State prosecutors) have every right to collect and gather evidence to build the case.