The (IMHO) really interesting discussions start about 30 paragraphs down:
- "The EFF sees the tremendous scope and power of geofence warrants as a bug, not a feature. “We believe that geofence warrants are unconstitutional because they don’t start with a suspect,” says Lynch. “They don’t rely on individualized suspicion, which is what’s required under the Fourth Amendment [to the U.S. Constitution]."
> They don’t rely on individualized suspicion, which is what’s required under the Fourth Amendment [to the U.S. Constitution]
That's definitely a "citation needed" statement.
In Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) the Court upheld mandatory drug testing for railway employees involved in accidents or safety violations despite no probable cause or individualized suspicion.
In Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) the Court upheld sobriety check points in which all cars are briefly stopped for questioning and observation. There's no individualized suspicion there. See also the cases involving border patrol checkpoints. A checkpoint 50 miles from the border doesn't involve any individualized suspicion.
Individualized suspicion is required I believe to target an individual, but hasn't targeting a place where a crime has been committed to get more information to try to figure what individuals might be involved been standard, uncontroversial, police procedure in the United States for hundreds of years?
E.g., if a clearly murdered body is found in a maid's closet at a hotel when the maids go to start their shift in the morning police are going to get a warrant to get the list of all staff and guests that were known to be in the hotel between the time the closet was last known to be dead body free and the time the body was discovered.
That seems at least somewhat similar to a geofence warrant and has been pretty normal since basically forever.
There's "the Constitution" the document, which has some words in it.
Then there's "the Constitution" the spirit, which is what the American public feels abut the document, irrespective of the words therein.
The two are never quite the same, and the latter is often the deciding factor when it comes to writing laws. The former factor, carefully parsing the words in the context of laws, has been where the courts come in. But these days is seems the court's view on the Constitution is colored as much by their feelings about the words as the words taken literally themselves. For example, for decades one court can say that a right to privacy is implied by the Constitution, and then suddenly a new court can completely flip that. Despite the words in the Constitution remaining the same in the intervening period, the feelings of the court about the document changed, and so what is considered "Constitutional" under the law changed as well.
In that sense, what is normal can in fact be Constitutional, as long as people with the right power say so, even if the document doesn't say as such in literal words.
I’m torn between the argument about individualized suspicion, which I find really compelling, and the fact that extreme circumstances demand some extreme measures.
Leading with the capitol attack doesn’t highlight to me why wide scope of these powers is a problem. Tell me more about the civil rights campaigns that are being disrupted with these technologies and powers.
It’s not helpful to highlight how it was used to arrest violent separatists. Tell me how it’s being used to punch down!
Without an example like that, I’m inclined to say this is a time where the federal government’s reliance on norms is working. As in, they have the power to do these kinds of things, but they choose to apply that power pretty selectively.
Another issue here is there is a problem with laws which are broad enough that it requires selective enforcements for them to be available. Because then you can get a problematic force which then uses them selectively for political purposes. This indeed is how the Soviet state worked and indeed current Russian state works to quash dissent.
That's aspirational rather than reality. The Supreme Court had no problem with the Patriot Act, which introduced extremely broad electronic searches. You could say the 4th Amendment should restrict searches to specific individuals, that might be a good idea, but for now the Supreme Court sees no need for that interpretation.
This argument doesn't make sense. That's like saying you cant review a security camera overlooking a carpark to see who was illegally using your carpark.
If surveillance capitalism continues, we'll need to rehash past legal compromises like probable cause, presumed innocence, and refusing to testify against oneself.
With panopticon and big data, investigators can rule out everyone with an alibi, sifting thru mountains of data to reveal who must have committed a crime.
I'm not arguing right or wrong, morally. Just what is.
Looks like the US state power is now making an obvious push to follow the CCPs footsteps after quietly eroding people's rights for years.
Hopefully the people will push back on it, can't say I have much hope since the political system is purposely broken.
Feels like we are already living in a world where both superpowers nations are in agreement that surveillance capitalism and disinformation is the best way to control their local population.
It appears reasonable at first glance, but upon further reflection it seems unlikely that the internet was the only factor influencing the riots. If the internet wasn't available, it's likely that some other means of communication would have been used to spread the news that sparked the unrest. There have been MANY instances of people trying to take over a government building before the age of the internet.
This is true but I’m not sure you’d have had the critical mass of people primed to respond to those messages. Fox News heavily pushed lies about the election but the people who responded were part of a world which grew a lot in the later 2000s as blogs, Facebook, etc. opened up new audiences for ideas which would have been too extreme even for cable news.
There'd be metadata of you moving with it. So you'd have touch points in other places through other systems. IF you have a phone, and you're tracked by it, then even if the identity of the sim points elsewhere there's the possibility you leave traces of yourself on CCTV as you're handling the device.
Also you're enemy would be busy in this day and age, quickly getting a new phone and trying to contact people with it, thus creating a competing alibi.
I think geofencing should only be allowed to establish/check connection to a very specific crime. I.e. in this specific case of capitol riot, it was a clear one. What I don't think should be allowed is a geofence & open-ended fishing for more crimes.
Obviously I am not lawyer, but I would think it could be codified somehow.
The police want all data, then they'll find the crimes. This goes against our country's presumption of innocence. Look at the recent case of the facial recognition and the Rockettes. A lady was trying to go to a holiday show as a private individual but was digitally black listed and kicked out as soon as she entered because she is employed by a law firm engaged in a lawsuit against MSG (who owns RCMH).
I understand this is a private venue and not police but the principle is the same. She wasn't caught hacking anything or breaking in to anything she just wanted to see the dancers. The big problem with geo fence warrants is that they lead to a 1984 style big brother surveillance state. For example: should the police constantly get everyone's cell phone tower ping data and automatically issue speeding tickets for every 5 minute window someone was speeding?
It doesn't go against presumption of innocence because the police don't determine legal innocence or guilt. If we get to the point where that becomes the case, where for instance anyone caught up in a geofence warrant is automatically convicted of a crime in absentia and without any other evidence, then that's obviously a problem.
> If we get to the point where that becomes the case [...]
Then it will be far too late to do anything about it.
You're obviously going to be convicted of speeding if your geolocation data shows you going 80mph for an hour on the expressway, right? Do you really want to wait until this case shows up in court to try to prevent this kind of dystopia from emerging?
See the current top post about individualized suspicion.
> You're obviously going to be convicted of speeding if your geolocation data shows you going 80mph for an hour on the expressway, right?
There are toll roads all around the US that conclusively prove tens of millions of people are speeding every day for many decades now, just from the entry and exit point time data.
Government leaders have yet to start mailing everyone automated speeding tickets.
Fair enforcement of democratically enacted laws isn’t dystopian and it’d save thousands of lives annually, too, so it’s hard to say it wouldn’t have a clear benefit directly linked to the activity.
What would be dystopian would be if that data collection was applied to protected activity or especially to unrelated activities: your attendance at a non-violent protest leading to your student loan rates going up, a religious prosecutor starting to “preemptively” investigate teachers & other government employees who went to a Pride parade, etc.
> You're obviously going to be convicted of speeding if your geolocation data shows you going 80mph for an hour on the expressway, right? Do you really want to wait until this case shows up in court to try to prevent this kind of dystopia from emerging?
You might want to conjure up a different example. I am having trouble considering enforcement of speed limits to be dystopian.
Per the story the use of geofencing is of great concern as essentially it amounts to a grant of authority to the State to undertake a search simply based on geography and not reasonable suspicion of wrongdoing. This is a significant departure from past standards for undertaking a search. See article excerpt below.
'The EFF sees the tremendous scope and power of geofence warrants as a bug, not a feature. “We believe that geofence warrants are unconstitutional because they don’t start with a suspect,” says Lynch. “They don’t rely on individualized suspicion, which is what’s required under the Fourth Amendment [to the U.S. Constitution]. In the January 6th context, it’s likely that there were many journalists whose data was provided to the police.”'
But "geofencing"; ie. in the form of the police asking for a list of phones which have been connected to a particular telecommunications tower has been around for decades. This is hardly news anymore.
It's hardly news to people who frequent sites such as HN or follow press releases issued by the EFF or the ACLU but I expect that the general population is surprised at how expansive the data harvesting efforts of law enforcement are. Additionally, the publicity surrounding the scale and scope of the operation is atypical.
"Be careful, they have spooky powers" seems to be the message. As well as "there are digital fingerprints everywhere", as they also talk about ProPublica doing their own investigation.
It's deeply regrettable that both sides of the political spectrum are so caught up in their particular narratives that they can't see potential erosion of civil rights that these law enforcement techniques bring about. On parts of the left, segments are grateful for these technologies because they allow for the arrest of individuals who they perceive as having attempted to overthrow democracy. Segments of the right are blinded and can't focus on the means and methods undertaken by law enforcement because they can't overcome their rage at what they perceive as an overblown and partisan response to the events of the riot.
I for one would prefer civil rights. The most dangerous people I have ever met were cops. I can protect myself from the individual non-state backed fascist.
I agree. I think most people have a “if you’re not breaking the law then you have nothing to worry about” view on this. Naively trusting that whoever has authority can be trusted indefinitely. But it’s an easier point to make than an abstract view of personal liberties and protections from abusive power.
Some kid (I suspect) wrote a naughty racist word on sone piece of playground equipment (easily cleaned off) and the reaction by people on an unofficial town FB group were amazing. One person called for cameras everywhere and the imprisonment of parents if their kid was recorded writing a racist or w/e word.
Hell the whole defund the police thing started turning into an alternative where there are cameras everywhere. I’m pretty sure that will be the future.
If violating or diminishing constitutional rights for the purpose of obtaining a prosecution is on the table then there's not really much to the constitutional order to begin with. Robert Bolt, one of the great playwrights of the 20th century, recognized this in "A Man for All Seasons". There's a brief excerpt of the film on Youtube that resonates particularly well today:
Point well taken, but at the same time, we have to wonder what the alternative here was.
Personally, when I was watching that day, I was thinking "Why are they letting all these people go? Why aren't they mass arresting them there on the spot? Won't it be hard to later go back and arrest these people after the fact? Arresting them on the spot is proof they committed a crime, so where are the busses and the handcuff?"
I was later told by a friend in law enforcement that doing such a thing at the scale of 1/6 is an extreme safety hazard for officers, and increases the likelihood of a bloodbath for all involved.
So what are the choices?
1) Arrest everyone on the spot, risk a bloodbath
2) Let everyone go and send the message that insurrection is okay, and that if you try this again next election, you'll have a low chance of getting arrested. The only thing worse than a failed insurrection is letting failed insurrectionists have a second go with the benefit of experience.
3) Let everyone go and get creative with technology. It avoids a bloodbath, helps enforce the law, and makes clear that insurrection is not to be tolerated. Maybe this diminishes our civil rights a bit, but the constitutional order is still intact (we're not tossing out all laws to get the devil. Makes for a good moment in a play but no one is arguing for that here), and you're free to use that order to bolster civil rights, as so many have done in the past. I think this is a good compromise. Then we can try to prevent insurrections before they happen, instead of using geofencing to arrest those who already perpetrated one.
> The hope was to get Congress to investigate the "voting irregularities" found in several key states, such as Georgia.
More accurately, they wanted Congress to give credence to unfounded allegations which had already been investigated and rejected by the actual legal authorities. Georgia’s Republican Secretary of State didn’t sabotage the election against his own party when he rejected false claims, he simply did his job and recognized that the evidence didn’t support those claims, and Congress didn’t have any valid basis for refusing to follow the legal process just because some people wished they hadn’t lost a fair election.
Every claim made by the Trump campaign has been looked at. Every claim they made turned out to be untrue. And as Trump's advisors testified under oath, Trump admitted in private to them that he knew he lost, and there was no fraud.
All we have to know to realize that the Trump campaign was not actually interested in investigating "voting irregularities" is the phone call between Trump and Georgia election officials. They spend the entire call going through his claims point by point, and telling him how their investigations did not support his claims. If Trump were merely interested in investigating voting irregularities, that would have been the end of a call, with a "Thanks for looking into this for me".
Instead, Trump threatened the Georgia Secretary of State with prosecution if he didn't find Trump the exact number of votes needed to overturn the election in his favor. That's not a concerned citizen looking to secure the vote for all, that's a wannabe dictator trying to stay in power.
> Investigating fraud isn't unconstitutional.
Agreed. But there's a time and a place for those investigations, and they must come to a close when all legal avenues have been exhausted. Trump had the right to pursue lawful recourse through the courts, and he exercised that right. The cases the Trump campaign brought to court lacked evidence and failed to make any concrete claims, because they were not actually filed to find fraud; they were filed to give legitimacy to the idea there fraud was the reason for the loss.
The claims were heard and Trump lost. At that point, the thing to do in the spirit of democracy is to concede, not to work to burn the whole system down.
> If anything, certifying fraud against is against the spirit of democracy.
Which is exactly what Trump wanted Pence to do by throwing out genuine Certificates of the Vote in favor of the forgeries. That would have been certifying a fraud.
In addition to the sitting Republican president, Paul Gosar (R–AZ), Andy Biggs (R–AZ), and Mo Brooks (R–AL) were involved and felt the need to ask for pardons:
There were also a ton of Republican operatives involved (Roger Stone, Ali Alexander, etc.), donors, etc.
More importantly, however, if the Republican Party didn’t support the insurrection it would have condemned the people involved and worked to prevent it from happening again. Instead, as we all know they voted to protect Trump, attacked the handful of Republicans who did condemn the attack and successfully purged them from the party in the subsequent elections, and most importantly, continued to repeat many of the themes motivating the attackers. The easiest way to say the Republican Party didn’t support January 6th would have been to publicly state that the election was valid and support prosecution of the attackers.
You should really read the bipartisan 1/6 committee report.
At the very least what you say isn't true because there wouldn't have been a mob in DC on 1/6 if Trump hadn't asked them to be there. How many people travelled from around the country to be in DC on 1/6/2017? Or 2009? Everyone gets there for the 20th for the inauguration, whereas historically the 6th has been ignored. But in 2021 everyone was there on that day, at the express invitation of Trump. Don't take my word for it - you just have to look at the court proceedings for the 1/6 prosecutions, where defendant after defendant pleads that they are not at fault because they were just taking directions from the President.
But what you say is further untrue because there were plenty of Republicans involved beyond that. The White House was responsible for helping organize the Stop the Steal rally, at which multiple high-ranking Republican party members spoke.
Beyond that, multiple congresspeople and senators objected to certifications, not because they had any basis for their objections, but in order to delay the proceeding and give Trump time to rile the mob. State GOP lawmakers forged Certificates of the Vote electing Trump that Pence was intended to substitute for the authentic ones. GOP Senators were involved in the process to transmit these certificates to Pence in time. Giuliani was busy calling lawmakers during the insurrection imploring them to delay the vote further as the mob bore down on them. Trump sat back and refused to deploy any National Guard troops, to the point Pence had to usurp control and do it himself after waiting 3 hours.
How many people need to be involved and how large the area before geofencing is used as an investigation tool? I'd set the current bar lower than the capital riots. Though how low is reasonable I don't know. I'm definitely opposed to finding a single individual, and an entire city. But I don't know how I'd feel about a single small building (say for a mass shooter event)
It's a question whether standard police work should be reformed since despite all classical attempts at hiding, they were found.
It questions: are the trade offs worth it?
I suppose the corrolary being: what if this protest was more legitimate but the police was corrupt?
I live in China myself so I find it interesting to ask this question before it's fully done and lost, even if I feel I know the answer: yes, it is worth it, and you'll never shock people with stories of criminals being founds thanks to general surveillance as much as they're shocked by unsolved horrendous crimes, so the abuses will be tolerated (or hidden thanks to the new structure of standard police work) as price to pay, when a critical mass of crimes that could have been solved will be reached.
And I am sad to tell you, that trading freedom for safety is paradise, and when I left the scary city I lived in before to Hong Kong where I live now, I felt such a surprised relief at the total absence of small crimes (all citizens prints are stored on a central database for instance, all 7M of us can be found in an instant). I'm never going back, they can read my emails and track my phone.
> It's a question whether standard police work should be reformed since despite all classical attempts at hiding, they were found.
They discussed their plans openly on social media then streamed evidence of it after the fact.
Ignoring the question of whether the ability to hide from law enforcement is a necessary component of liberty even when one has committed a crime, these guys weren't even trying very hard to cover their tracks.
For the core field operatives, it seemed many had unrealistic expectations of their chance of success, and were pumped on a success-or-death mentality. In retrospect it’s easy to see why that would lead to lax operational security. Now that they neither succeeded nor died in the attempt, the evidence is easy to find.
- "The EFF sees the tremendous scope and power of geofence warrants as a bug, not a feature. “We believe that geofence warrants are unconstitutional because they don’t start with a suspect,” says Lynch. “They don’t rely on individualized suspicion, which is what’s required under the Fourth Amendment [to the U.S. Constitution]."