
We Should All Have Something To Hide - tptacek
http://www.thoughtcrime.org/blog/we-should-all-have-something-to-hide/
======
coldtea
"""Imagine if there were an alternate dystopian reality where law enforcement
was 100% effective, such that any potential law offenders knew they would be
immediately identified, apprehended, and jailed. If perfect law enforcement
had been a reality in MN, CO, and WA since their founding in the 1850s, it
seems quite unlikely that these recent changes would have ever come to pass.
How could people have decided that marijuana should be legal, if nobody had
ever used it? How could states decide that same sex marriage should be
permitted, if nobody had ever seen or participated in a same sex
relationship?"""

This, a thousand times this.

I was struck with the same idea in the past. Law should not be 100% enforced,
or it will be a dystopia. I wouldn't want to live in a world were the Grateful
Dead couldn't do any drugs, teenagers could never drink a beer, nobody could
express himself with a graffiti in a drab wall, no child that wants to be a
graphic designer could ever pirate Photoshop, being a few months less or more
than the legal age to date sends you off as a molester, playing a different
region DVD lands you to jail, and a million other things...

~~~
hcarvalhoalves
That´s the worst angle to look at this issue, though. It´s the way a white boy
from a 1st world country would look at it.

Having many laws and inneficient law enforcement is the recipe for disaster.
You just get corruption and lack of isonomy (poor people get jail, rich people
get a bail for stupid crimes). Come to Brazil and marvel at the result of your
theory. Police is inefficient, rich people get away from murder, and when they
catch a poor criminal they execute for banal crimes (e.g., drug posession)
with the understanding the judiciary doesn´t work.

What you want is less bogus laws around individual liberties rather than less
law enforcement.

~~~
rdouble
It is a terrible way to look at it, even if you're white, because you can
always be the wrong kind of white person.

Where I grew up, kids on the hockey team, or whose dad owned the car
dealership, would repeatedly get away with drunk driving and beating up their
girlfriends, whereas poor kids were regularly taken down to the station for
skateboarding, even though there were no laws against it.

~~~
coldtea
I'm not an American, and my country is, especially now, poorer than the
parent's (he said Brasil, IIRC).

Nothing about some "white boy perspective" to what I said.

That's based on a misunderstanding about what I meant by saying the police
should not be totally efficient.

Less efficient != discrimination.

Less efficient != corruption.

It's not a two way association. One could say that a "corrupt police" is "less
efficient" but the inverse is not true.

If anything, with it being less efficient, in the way I describe, FEWER poor,
black, "wrong kind of white" etc people will actually get caught.

~~~
hcarvalhoalves
That's like saying two wrongs make a right.

~~~
coldtea
Which they often do, hence the proverb.

~~~
hcarvalhoalves
They don't, and it's logical fallacy to boot.

The actual proverb is "two wrongs don't make a right".

------
malloreon
If you haven't seen the video Moxie mentions in the opening couple paragraphs,
"don't talk to the police," I HIGHLY recommend watching it.

Not only is it informative, it is fascinating and very well delivered.

[http://www.youtube.com/watch?v=6wXkI4t7nuc](http://www.youtube.com/watch?v=6wXkI4t7nuc)

~~~
jjoonathan
The lawyer only ever saw cases that got to the point of needing a lawyer.
Police exercise discretion as part of their job and I have trouble believing
that silence (and the suspicion it creates) always pays off.

Example: the neighbors see/hear you having rough sex with your wife and report
it as abuse. The police knock on the door, you have two options:

A) Explain (better: let your wife explain) that the neighbors probably heard
you playing around and promise to be more discreet in the future. The police
agree that more discretion = better and leave.

B) Wall of silence. The police take you in just to be sure. Your wife tries to
testify in your favor at the trial but everyone thinks she's just making
excuses for an actually abusive boyfriend (because that happens). Your life is
ruined by the conviction, maybe her life is too. Even if you don't get
convicted, rumors will spread and your time and money will be wasted on legal
matters.

Am I being naive or was the lawyer overstating his argument? Strategy A is
strictly worse than B _if the case goes to court_ , but that still means that
B could be the better strategy before you've been arrested.

~~~
IanDrake
> Your wife tries to testify in your favor at the trial...

Why would she do that? The only way you've gotten this far is because she's
pressing charges.

~~~
jjoonathan
No, the AG is pressing charges, ostensibly on her behalf, because everyone
thinks she was in denial about the abuse. Alternatively, even if everyone
agrees she consented, consent isn't a legally recognized defense to all forms
of battery and you also have to consider sodomy laws: in the hands of a
conservative judge/jury, what you were doing actually _was_ illegal, even
though you were consenting adults and nobody got (permanently) hurt, which is
the standard most "reasonable" people go by nowadays.

IANAL and the little I know about the intersection of kinky sex and law comes
from a single presentation I attended years ago during college. Please correct
me if I'm wrong, but I'm fairly certain I have the broad strokes drawn
correctly.

~~~
semiel
As someone active in the kink scene, the current legal situation seems to be:

Sadomasochism is probably illegal in most states, but no prosecutor seems
eager for the shitshow that would happen if they tried to prosecute something
that was clearly consensual.

~~~
mpyne
Chalk another point up for 'selective enforcement'? :P

------
tptacek
Note that 16 USC § 3373 makes it pretty clear that you cannot in fact be sent
to prison simply for possessing an undersized lobster.

~~~
dylangs1030
I was under the impression that federal crimes of this sort are only
actionable _if_ you are aware of the legality _before_ it comes into your
possession.

That would correlate with your statement that it isn't actually illegal, is
that why? There are some crimes where it seems as though the public domain has
enough knowledge that you should know better without being explicitly told so.
But for something like an under-sized lobster, I think you should get a pass
on not knowing.

This also presents a problem of enforcibility - will a law be enforced, and
under what conditions, if it's a "silly law"? I think this is what really
makes it important to have things to hide - you could be tried for what they
find if they are pursuing you for other reasons.

In other words, I sure hope Edward Snowden doesn't have an under-sized
lobster.

~~~
DuskStar
I think the US has begun to completely ignore what is known as "Mens Rea" for
regulations such as this. While for something like Murder you have to have
intended to commit the crime, many other crimes require no intent or prior
knowledge. (Manslaughter, Child Pornography, Possession of Undersized Lobster
as examples)

[http://lawcomic.net/guide/?p=173](http://lawcomic.net/guide/?p=173) (A more
entertaining description)

~~~
tptacek
This isn't true at all. Read model jury instructions sometime; you'll see that
virtually all of them instruct the jury not to convict without first
determining that there was some knowing action. The "Undersized Lobster"
statute is explicit about this, but doesn't have to be; the "strict liability"
crimes (like statutory rape) are the exception, not the rule.

~~~
DuskStar
However, a growing number also do the opposite - for example patent law.
(though that requires Mens Rea for punative damages)

But yes, I guess that most laws do (thankfully) still include Mens Rea.

------
druiid
Thanks for the post Moxie! I always enjoy reading your stuff (and have you
subscribed in my RSS feed). I think it's sad that many believe they 'have
nothing to hide'. I've already seen it expressed online in response to things
others have posted.

I think one thing I really wonder about that you somewhat touch upon is the
fact that nearly everyone is carrying upon their person a GPS tracking device.
I believe it not impossible the day will come where simply being in the area
where a crime occurred is enough to open you to suspicion. Perhaps this has
already happened.

~~~
jjoonathan
On the flip side, it would revolutionize the alibi-generation process (both
legitimate and illegitimate)!

------
jacquesm
A society without crime likely will be a stagnant society, one where there is
not enough room for any fringes at all rather than just not that one fringe
that we'd like to get rid off.

Imagine an organism that perfects the trick of error correction on genetic
information. That organism would not suffer from some of the afflictions that
come with imperfect genetic copying. But that organism would also instantly
stop to evolve.

------
nakedrobot2
Excellent article. I am hearing far too often, from people who I thought were
very well informed and intelligent, that "I have nothing to hide so why should
I worry". It is troubling to me that more people do not see the very clear
signs of trouble ahead if things do not change.

------
whiddershins
I love this article so much. It explains something that can be hard to grasp.
It isn't immediately intuitive, but it's certainly so: without these nuances
and flexibility, no progress can exist.

Or we could just do away with any felony that doesn't involve physically
harming a person.

~~~
mpyne
What about a felony where someone embezzles $500 million in taxpayer funds? Or
knowingly sells defective vaccines to people who mercifully never actually
catch ill?

~~~
whiddershins
right, because that's what everyone is in jail for.

------
nissimk
This presentation that Moxie gave at defCon 18 is really excellent:

[https://www.youtube.com/watch?v=eG0KrT6pBPk](https://www.youtube.com/watch?v=eG0KrT6pBPk)

------
euroclydon
_but if everyone’s every action were being monitored, and everyone technically
violates some obscure law at some time, then punishment becomes purely
selective. Those in power will essentially have what they need to punish
anyone they’d like, whenever they choose, as if there were no rules at all._

Could you not just subpoena the monitoring data that law enforcement had
access to and make a 14th Amendment case with a quick SQL statement.

------
IanDrake
>The cornerstone of liberal democracy is...

For the love of god or anything you find holy, STOP insisting we live in a
democracy!

I stop reading any article that asserts we live in a democracy or should
strive to live in one.

We live in a republic.
[http://www.c4cg.org/republic.htm](http://www.c4cg.org/republic.htm)

[edit for auto-complete]

~~~
ubernostrum
For the love of god or anything you find holy, STOP insisting that only direct
democracy counts as democracy!

~~~
IanDrake
Even being succinct and saying "a representative democracy" doesn't imply a
form of government which is constrained by a constitution.

Saying democracy instead of republic just undermines the common understanding
of how our government was setup to function.

~~~
dragonwriter
> Even being succinct and saying "a representative democracy" doesn't imply a
> form of government which is constrained by a constitution.

Neither does saying "republic". And "representative democracy" isn't succinct
compared to "democracy", its verbose.

> Saying democracy instead of republic just undermines the common
> understanding of how our government was setup to function.

No more than saying "republic" instead of "democracy". A "federal republic
that is also a representative democracy governed under a written constitution"
would avoid that problem, but its a lot to write, when "democracy" is the part
that is _relevant_ to the point you are trying to make.

------
md224
I wonder: does increasingly weak enforcement lead to increasing complacency
about the law in question?

------
walid
Moxie Marlinspike always surprises me with his clear and rigorous train of
thought. His example of addressing same sex relationships and how even though
they were illegal at a time shows why ominous surveillance comes at the
expense of people's choices in lives.

------
mattchamb
"The best way to get a bad law repealed is to enforce it strictly."

― Abraham Lincoln

------
wslh
"All human beings have three lives: public, private, and secret."

Gabriel Garcí­a Márquez

------
atawmicpm
I agree...

