Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, and even other people's servers are becoming invaluable, impossible-to-live-without brain extensions. That they should be allowed to be used against you in court is insane. The communications that they send and receive should be subject to well-overseen surveillance, but the devices themselves are as much you as you are.
I imagine a not too far off future where your glasses tell you your schedule, where haptic and audio feedback are constantly feeding you a stream of your important information; Where even moreso than today, your personal data network is you. There's a chapter in Accellerando ^1 where Manfred's glasses are stolen, and the thug who steals them becomes Manfred by simple virtue of putting them on and being overwhelmed by the signals. He's not a very good Manfred, but he quickly is more Manfred than the person he was. It's only a matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc.
The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial.
It was never intended to prevent evidence you were stupid enough to write down from being used against you.
So basically, "insane or not", the fifth was clearly not intended for this purpose, despite your attempt to view this as "an extension of yourself".
DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender.
Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute)
The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?
An interesting question.
Again, the main historical reason for the fifth amendment was torture, not to avoid knowing the truth, or that you were somehow magically sacred.
If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine.
Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed).
In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)
If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine.
I must state that this sentiment sickens me slightly. I sincerely hope that this interpretation is absolutely unthinkable by the time technology reaches that point. I don't believe that any world in which one's thoughts and memories are not private can ever be free.
Sorry, I should have been clear: I meant fine legally, in the context of the fifth amendment.
It is not a statement of what I believe the social view/norm/etc should be, or whether it should be allowed.
Only an objective assessment of whether it would fall within the context of what was currently protected and the intent of protecting that.
Personally, I would find it abhorrent, but that is not particularly relevant to the law.
I read something recently --- can't remember what --- that suggested that the expensive ceremony around obtaining phone wiretaps at the state level were in part motivated by the concern that wiretaps came close to reading the thoughts of the accused.
I imagine this is more along the lines of 4th amendment or thoughtcrime.
I actually believe we are likely to need another amendment to protect us in the future, because I don't think the fifth does or would do a good job of this.
I think this is one of the sources of abrasion between lawyers and hackers on HN -- the distinction between "legal" and "ethical" is not always made clear. Sometimes you'll see a hacker post that things must be one way, while a lawyer replies that, no, in fact, they are completely the opposite (the hacker invariably reads "you imbecile" after this, even though it's not actually typed ;-) ).
In reality, the hacker may have a perfect understanding of the current law, but disagree with it vehemently, while the lawyer's personal philosophy is actually in agreement with the hacker's statement.
"In reality, the hacker may have a perfect understanding of the current law"
Maybe?
I find engineers, like a lot of intelligent people, read a lot and think this means they understand things. If they spend their time starting by reading and learning fundamentals, i'd agree with you.
Instead, a lot of the time, IMHO, they read and understand particular cases in particular jurisdictions, and then take that as a truth that applies elsewhere, when it doesn't.
Maybe someday i'll make a law for hackers course as a MOOC.
They also want the law to be logical, and present logical extensions of arguments (IE they want the law to be an entirely rule based system, where if all rules are memorized, all outcomes are clear) . It's certainly a necessity to be able to reason logically, but the problem is, at its core, the law is about people and situations, and not logic. Logic is just a method that is used to come up with some possible solutions to these problems, and to determine possible outcomes. It is not a god that must be followed at all costs.
IE Judges are not going to do things just because they are logical, because they are people, and not logical reasoning automatons. The law's goal is to serve a societal need, not to be theoretically sound in all cases.
This often grates on most engineers, who want bright lines and definite answers.
Anyway, this is my experience having been a "real" engineer for 15 years before/during/after becoming a lawyer, and talking to an ungodly number of engineers over the years about things.
It could be my view is skewed because of the career path i've taken :)
I do agree that there is tension between lawyers and engineers on HN, but IMHO, this is due in large part to most lawyers being able to objectively detach their feelings from their legal analysis of a situation (something one is trained to do in law school), and forgetting to mention they are doing this.
This often grates on most engineers, who want bright lines and definite answers.
FWIW, the thing that bugs me the most is that sometimes the bright lines are more important than the soft stuff like intent and sometimes they are not and there is little rhyme or reason for why. I'm not just talking things like strict liability versus mens rea either, its just that I don't have a good example off the top of my head. Maybe AT&T vs Weev?
>The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.
Sweet. I had to jump off last night, but I did some criminal appointments in both federal and state court to get some courtroom experience while fresh out of law school. Certainly not an expert, but capable of having a fairly deep discussion on search & seizure.
I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.
DannyBee and PG are having a conversation in a sewer beneath Boston. DannyBee tells PG that he is going to rob the town bank and set it afire.
This was a verbal communication between the two.
There was a USG agent around the corner in another tunnel. He heard an echo of the two talking. This is the only evidence of the two communicating about the matter.
How is this prosecuted?
(please forgive the weak analogy - and improve if you can... but please tell me the 1790 equiv argument for what we are dealing with where the snooping is either protected or denied)
Could you explain the history of the 5th ammendmment in this context? I understand from some light Wikipedia reading that it was originally around mostly to prevent tortured confessions. Why is it still relevant at all?
At least that means that I would not need to help them searching my phone. Is that correct?
My phone needs a pass code to allow any interaction and I could conceivably encrypt data on it. What if I get arrested, but on grounds of the 4th amendment won't reveal the pass code?
Oops. Meant to reply to cgshaw, the child comment.
"At least that means that I would not need to help them searching my phone. Is that correct?
"
This varies right now.
Essentially, it depends on whether your giving the password would tell them something they can't otherwise prove, and that thing is testimonial in nature: That you maintain ownership of the item, etc.
Basically, if they can authenticate the existence of what information is on the phone, and can authenticate your ownership, you may very well be compelled to give the password.
That said, they are very fact specific inquiries, and, AFAIK, the world is still up in the air here.
See U.S. v. Boucher, United States v. Fricosu, United States v. Kirschner, etc.
The problem is that the Constitution we have simply doesn't offer the protections we need. When it was written, nobody would have thought to even debate protecting against keeping a copy of every single correspondence a person made, or a log of everything a person read, even in their own homes.
It would be like today considering if we should have a protection against the government taking our DNA and making half-dinosaur hybrid clones of us to use as soldiers. It is not technically impossible, but it's very difficult to see how it would ever be practical.
Unfortunately, the amendment process we have is proving to be rather inadequate. It seems likely that if we didn't already have the Fifth Amendment, we'd never be able to get it considered as a serious issue, much less ratified. Some people would be complaining about the government torturing its own citizens all the time, and the President would be telling us that torture is "a powerful tool, and with great power comes great responsibility", and that we must limit that power so it wouldn't be abused. And at the same time, he'd be going to SCOTUS to try and get permission to do it even more (after all, how can you call it "cruel and unusual" when it's so commonplace?).
It does provide us the protections we need, the government just violates those protections until a court slaps them down. It becomes a battle of lawyers, between those who twist the words to bypass every protection and those who sit there and pull apart every twist to reveal the deficiency of the argument.
The 4th is more than enough to protect the taking of our cellphones. Like any property of ours, our houses for one, it should require a warrant to search
I think many of the founders would have agreed with you.
That said, it's my understanding that personal diaries are admissible in court. Our electronics are similarly private, so the fourth amendment, protecting 'persons, houses, papers, and effects', applies.
"I think many of the founders would have agreed with you."
Based on what?
The fifth amendment exists mainly to prevent torturing people for extracting information, a practice that was not uncommon in parts of the 16th and 17th centuries.
Extending this to "personal assistants" doesn't seem like anything the founders would have supported, so i'd love to see evidence.
Again, the fourth amendment, i agree, but the fifth?
I don't see it.
Yes.
Your diary is not testimony.
Your blood is not testimony.
Your handwriting is not testimony.
Testimony is testimony.
As mentioned elsewhere, you miss the point of the fifth amendment. It was not because self-testimony was sacred. It is because people were being tortured to get it.
Given that a diary is already written, no current harm will come to you from its use.
Now, if your question is whether this should be protected that's a question about society and whether we need to pass a new amendment. But it's not what the fifth was there for.
A recording of something that you said is admissible. Why wouldn't a digital recording of something you said be? Because you own it and the court doesn't and shouldn't be allowed to search it without probably cause in the first place.
> The communications that they send and receive should be subject to well-overseen surveillance
Surveillance, all-seeing all-knowing citizen-watching and suspicion-free spying is not okay. Targeted, with-warrant wiretaps are (maybe) a different story. Maybe I define this different than most (please chime in with your own) but the word surveillance means to me that you're being watched from above with many other also-innocent people.
I imagine a not too far off future where your glasses tell you your schedule, where haptic and audio feedback are constantly feeding you a stream of your important information; Where even moreso than today, your personal data network is you. There's a chapter in Accellerando ^1 where Manfred's glasses are stolen, and the thug who steals them becomes Manfred by simple virtue of putting them on and being overwhelmed by the signals. He's not a very good Manfred, but he quickly is more Manfred than the person he was. It's only a matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc.
[1] http://www.antipope.org/charlie/blog-static/fiction/accelera...