[alphazard]

This exactly. Bad people have to go free in order to incentivize good behavior by cops.

You and I (as innocent people) are more likely to be affected by bad police behavior than the few bad people themselves and so we support the bad people going free.

[HideousKojima]

>You and I (as innocent people) are more likely to be affected by bad police behavior than the few bad people themselves and so we support the bad people going free.

I know anecdotes aren't data, but my only negative interactions with cops have basically been for traffic tickets. Meanwhile my negative interactions with criminals have been far more numerous, along with several second-order effects caused by their mere existence (like not going to certain neighborhoods at night because of high crime rates). I don't think there's ever been a neighborhood law abiding citizens had to avoid because of fear of cops.

Maybe I'm some kind of crazy outlier, but I'm pretty sure that most innocent people are the same.

[RHSeeger]

> I don't think there's ever been a neighborhood law abiding citizens had to avoid because of fear of cops.

I think there's a fair number of stories of POC be accosted by police officers because they were in a neighborhood they didn't "belong" in, so your statement is likely inaccurate.

[rendall]

The threat to innocent people posed by incompetent or tyrannical police is arguably much greater than by ordinary criminality.

In small towns across America, corrupt police departments hassle outsiders and issue minor citations as a way to generate revenue. If someone is found to have large amounts of cash for some reason, they often will confiscate it in a process called civil forefeiture. Many US police officers act with impunity because their misconduct will be protected by local prosecutors and judges. There absolutely are towns and neighborhoods good people should avoid because of the police.

[wbl]

Dan White shot the mayor and a supervisor in cold blood and confessed everything to the cops. They managed to stop him from spilling out his premeditation on tape by interrupting him as his confession was getting rolling and the DA failed to win the easiest conviction of his career. The cops then went on a spree of beating people gratuitously in the Castro.

Cops aren't there to enforce the law without fear or favor. They routinely engage in petty corruption and complain when they have to be professional when on duty.

[Workaccount2]

There is a reality distortion field in existence now because almost every police interaction is recorded (body cams are everywhere nowadays) and the ones that go bad are put on full blast across social media and the news, despite them being somewhere on the order of 1 in 1,000,000 encounters.

Seriously, if car accidents were reported like police accidents, we probably would have been forced by confused ideologues to ban automobiles 2 years ago.

[shadowgovt]

Given that they're over 100 deaths a day in the US (as of 2022), we probably should consider car accidents more than we do.

(But they pretty much do report on them consistently on local news... People won't stop driving because the social benefit is so large).

[sarlalian]

That’s called luck.

Personally I’m a cis white male, who’s been a mostly law abiding citizen, and I’ve had dozens of poor interactions with police throughout my life. Additionally I have a probably unusual number of family and friends who work in law enforcement. The stories I’ve heard about co-workers from them are absolutely terrifying. My father’s (retired police officer) advice when I became a teenager was “only call the police when what is about to happen is worse than going to jail.”

I deeply respect the difficulty of the profession and don’t believe that all or even most police are bad people, but there are way too many who have no business being in that profession.

[DrillShopper]

Honest question: are you white?

[wizzwizz4]

> Bad people have to go free in order to incentivize good behavior by cops.

And they will, next time, and everyone knows it. We don't need an actual example of a bad person going free if the potential is certain enough.

Unless, of course, you're trying to encourage good behaviour in the general case (rather than a codified list of specifics); but that's expecting police officers to be experts in right and wrong. As obvious as such things are to me, I'm aware that a lot of people struggle a lot more with these things. (Or, perhaps, struggle less: I spend a lot of time thinking about morality and ethics, more than is reasonable to expect a salaried worker to spend.)

[refulgentis]

I think its okay that we expect cops to be good _after_ the rule exists, rather than set the bad guys free to (checks notes) incentivize cops to take our new rule super seriously.

[everforward]

It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality. That is that we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand.

That is why many people think this should be tossed out. Ignorance that an action was a crime is almost never an acceptable defense, so it should not be an acceptable offense either.

[refulgentis]

> we now have to let both of them off the hook, since neither had been specifically informed they weren’t allowed to do the thing beforehand.

I'm not trying to be funny, or aggressive, or passive aggressive, seriously: there's two entities in the discussion, the cops, and the person with a photograph with a hash matching child porn. I'm phrasing that as passively as possible because I want to avoid the tarpit of looking like I'm appealing to emotion:

Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash?

> It would seem that the inverse would need to apply in order for the justice system to have any semblance of impartiality...That is why many people think this should be tossed out.

Of course, I could be missing something here because I'm making a hash of parsing the first bit. But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case.

[everforward]

> Do you mean the hash-possessor weren't specifically informed it was illegal to possess said hash?

This is literally the doctrine behind the good faith argument and qualified immunity. If they have not been informed that this specific act, done in this specific way is not allowed then it is largely permissible.

A stupid but equivalent defense from the possessor would be “it’s in Googles possession, not mine, so I had a good faith belief that I did not possess the files”. It’s clearly wrong based on case law, but I wouldn’t expect the average person to have a great grasp of how possession works legally (nor would I claim to be an expert on it).

This is effectively what the good faith doctrine establishes for police, even though they really ought to at least have an inkling given that the law is an integral part of their jobs. As long as they can claim to be sufficiently stupid, it is permissible. That is not extended to the defense, for whom stupidity is never a defense.

> But, no, if the cops in good faith make a mistake, there's centuries of jurisprudence behind not letting people go free for it, not novel with this case.

Acting in good faith would be getting a warrant regardless, because the issue is not that time-sensitive and there are clear ambiguities here. They acted brashly under the assumption that if they were wrong, they could claim stupidity. It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search.

It is, yet again, rules for thee but not for me. Frankly, with the asymmetry of responsibility and experience with laws, the police should need to clear a MUCH higher bar to come within throwing distance of “good faith”.

[HideousKojima]

>This is literally the doctrine behind the good faith argument and qualified immunity. If they have not been informed that this specific act, done in this specific way is not allowed then it is largely permissible.

For criminal actions an entirely different set of standards exists, and has longstanding legal precedent. Two in particular: mens rea and strict liability

[everforward]

Right, and my argument is that the double standard itself is not just. I do know as a matter of practicality that I don't really have a legal leg to stand on here; the law is what judges say it is, and they've said it is the way it currently is.

I do not find "the justice system treats them differently, therefore they are different and the justice system is just in treating them differently" to be a compelling argument that the double standard is just. It's just a circular appeal to authority; any behavior by the justice system is morally permissible under that idea, simply because the justice system declares it to be so.

My question is how is it just that differing standards apply? And furthermore, how is it just that that leniency is granted to the benefactor of a severe power imbalance? Unconstitutional search and seizure could absolutely be a crime; in this situation, a citizen would likely be charged under the CFAA, which is a crime.

[freejazz]

Your argument is a bit disingenuous because it's not applicable in situation where there is clear law clarifying that something can't be done.

You're pretending that cops are using this in situations where it's known that a warrant is needed, as opposed to it being an exception to "fruit of the poisonous tree" doctrine when new caselaw is being made.

> Acting in good faith would be getting a warrant regardless

That's not what "good faith" means, that's just something entirely made up by you. From a reasonable perspective that could be described as foolish and a waste of time and the public's resources.

> It encourages the police to push the boundaries of legal behavior, because they still get to keep the evidence even if they are wrong and have committed an illegal search.

There's a constant tension between technology, crime and the police that's reflected in the history of 4th amendment jurisprudence and it's not at all like what you describe. The criminals are pushing the boundaries to which the police must catch up, and the law must determine what is fair as society changes over time. I'm not particularly pro cop, but you don't seem to be reasonable about any of this.

[everforward]

> You're pretending that cops are using this in situations where it's known that a warrant is needed, as opposed to it being an exception to "fruit of the poisonous tree" doctrine when new caselaw is being made.

The ACLU has a decent article about it [1].

Beyond that, there is a substantial power imbalance between law enforcement and private citizens implying that private citizens should be favored by the law where possible to even that out (this is well upheld in case law and documents from the founding of the country). As a private citizen, if you want to do something but are not sure about its legality, do you a) yell "YOLO" and go ahead and do it, b) consult a lawyer, or c) just not do it at all? I believe law enforcement should be held to that same bar.

> That's not what "good faith" means, that's just something entirely made up by you. From a reasonable perspective that could be described as foolish and a waste of time and the public's resources.

"Good faith" is at odds with recklessness and negligence; an action cannot be made both recklessly or negligently and in good faith (supported by majority opinion in Leon v United States, which established the good faith exception). I cannot see a way in which taking an action of unknown legality, while possessing both the time and means to take an alternate action of known legality, is not acting with reckless disregard or negligence to the rule of law and thus incompatible with good faith.

From Leon v United States: "The deference accorded to a magistrate's finding of probable cause for the issuance of a warrant does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based, and the courts must also insist that the magistrate purport to perform his neutral and detached function and not serve merely as a rubber stamp for the police."

> There's a constant tension between technology, crime and the police that's reflected in the history of 4th amendment jurisprudence and it's not at all like what you describe. The criminals are pushing the boundaries to which the police must catch up, and the law must determine what is fair as society changes over time.

I would genuinely encourage you to review the history of 4th Amendment jurisprudence. It has been continually weakened to the point that only the most flagrant and loudly-announced violations are found unconstitutional, and even then the punishments are virtually non-existent.

Again, the ACLU has a very informative document on it literally called "The Crisis in Fourth Amendment Jurisprudence" [2]. Criminals aren't doing anything particularly new; stashing files somewhere and even encrypting them isn't anything new. Encrypting something in a way that was virtually undecipherable was possible even when the 4th Amendment was written. These are not novel criminal techniques, but the broad liberties given to police with regards to the 4th very much are.

You are welcome to consider me unreasonable. I think there is a fundamental gap in core beliefs causing that. I do not believe criminals are doing anything categorically new, nor that crime is suddenly worse, nor that crime is currently so bad that it demands an exceptional response. Under that set of beliefs, I think opposition to exceptional police powers is reasonable. You seem to believe the opposite, and I can see how my opposition seems unreasonable. I would say that you have fallen victim to unfounded propaganda, and I presume you have a similar accusation to level at me.

Regardless, I do appreciate you engaging in good faith and I wish you weren't ratio-ed on your comment. I do think you have brought interesting points to the discussion.

1. https://www.aclu.org/news/national-security/polices-get-out-...

2. https://www.aclu.org/publications/crisis-fourth-amendment-ju...

[trod123]

> the law must determine what is fair as society changes over time

This has been the ideal that has been put forth generally quite a bit, but it also almost always neglects the structural failings that must equally be addressed at the same time.

For example, at what point would you say that case law overrides the constitution?

According to the law, it holds the constitution as supreme, and that no representative has the authority to exceed or violate that which is granted in the constitution, this pertains to the judiciary as well as the executive and legislative. It is up to the courts to enforce this as the last pillar of society (for non-violent conflict resolution).

In a general society with a rule of law, when there is a admitted constitutional violation, it must be immediately cured.

Issuing a decision that prevents a constitutional remedy while recognizing the violation is arbitrary, a direct contradiction, exceeds the authority granted, negates the constitution, shows a violation of a sworn oath to uphold the constitution, and causes the entire "rule of law" and its institutional credibility to be called into question.

If you allow exceptions to the constitution, the fundamental component, "equality under the law", fails, and that means we don't have a "rule of law".

The natural outcome of this being increasing violence, which no one wants because it benefits no one.

Bringing society as a whole from a "rule of law" to a "rule by law", which inevitably (over time) causes society to fail violently towards totalitarianism/tyranny, is stupid but may have short term benefits for the corrupt. The harms of such are systemic and grow exponentially.

It is not a matter of catching up to offenders, it is a matter of competency. This is a professional occupation where corruption is an ongoing structural issue, and actions must be reasonable to protect both society and the individual rights equally.

No true American would accept soviet-style kafka courts without any of the normal protections regardless of the crime, and that is the danger faced with the decision here.

Corruption of the state will always seek to use such types of systems to justify their existence often inducing, planting evidence, or causing such crimes to be committed. Some may be actual offenders, but others may not and no differentiation is made. It may even be done for political purposes such as with The Gulag Archipelago.

It is a slippery slope which cannot be walked back later as the damage will have already been done with the punishment being front-loaded.

If there is a question regarding a boundary of a policy or process, you get a legal opinion, and base your actions on that opinion. This is well established in many sectors, including but not limited to the Business Judgment Rule. This is what is needed for this to be done in "good faith".

Allowing a blanket good-faith exemption and exclusion for government to do anything not directly covered by existing case-law without repercussion is a dangerous precedent towards tyranny, especially when they had the probable cause at the start to do it the right way.

It seems like you neglect many of these important foundational subjects. The lack of accountability control encourages the police and related apparatus to violate the law, and thus violate the public trust when this is unenforced.

The main outcome in a society absent a "rule of law" is overwhelming violence. This is what most people fail to realize, and many today embrace magical thinking and delusion.

Mass delusion has greatly overtaken this country and will soon destroy it if it is not stopped.

It is of critical importance to base our protective systems in objective measures which are external, and rational thinking and critical reasoning that logically follows without contradiction or circular reasoning.

To fail at rational thinking, is to embrace delusion and become schizophrenic, a common malady in the totalitarian state (Joost Meerloo). This is covered well in topics on the banality of evil, and the radical evil (WW2).

The crime accused is repugnant, but equality under the law, and constitutional protections are sacrosanct, and far more important than any single person.

[_Algernon_]

The 4th amendment was written in 1791

[GuB-42]

The 4th amendment is about unreasonable searches and seizures, it is also about "persons, houses, papers, and effects", that is, not files stored in someone else's computer.

The police here considered that a hash match was a reasonable enough condition to conduct a search, and that Google's TOS allowed it. They were wrong, but it is not obvious that they were by just reading the 4th amendment, and the situation is rather new, so it is reasonable to assume that the police acted in good faith.

[thanksgiving]

If I have documents in a locked briefcase in a hotel room, does the police get to read and copy them with the hotel operator's permission while I am in the shower? Assume that the locked briefcase is not particularly tamper proof. Anyone with decent lock picking skills can open one.

[scott_w]

Is it your locked briefcase or the hotel's? I believe hotels have the ability to unlock their own safe, so I suspect they're allowed to ask the hotel's permission to look without a warrant.

Also, if a hotel cleaner found illegal material lying in your room, the police don't need a warrant to seize it and prosecute you.

If it's your briefcase then I think they need a warrant.

[salawat]

The type of person who cannot draw a line of semantic equivalence between papers and files on a computer, is uniquely devoted to entertaining a level of obtuseness it is hard to seriously entertain. On par with people who think that "Arms" in the second amendment must only apply to muskets, cannons and such, and nothing after.

Tell me. When you put a bunch of papers in a folder, then put them in a cabinet, arguably under some semblance of organization in order to make later retrieval easier, what are you doing?

Filing.

The entire desktop metaphor, (the basis around which most computer UI is based), was chosen in part specifically for it's compatibility with non-digital processes at the time of software and the personal computer's fruition. Files on a disk, are in a literal sense, your papers. They are stored in directories(lists of things and where to find them, a.k.a. folders), areanged under the abstractive auspices of a "file system", and at times "archived" for convenient storage or transport. Gee. Same verbage as what you do with papers... In fact, your papers have nothing to do with dead trees except as an accident of it being the first prevalent medium for persistent info storage. Your papers covers the set of information through which you conduct your business with the outside world.

Those packets of paper are files. Those collections of 0's and 1s on a disk are files. Files are papers. Papers are protected. The involvement of a computer in the chain suddenly nullifying the essence of what point was being made by the Founders is as worthy of ridicule as thinking they went to war with their colonial parent state only because of a tax spiff. Or the civil war being only about slavery. It's evidence of a worldview most tragically impoverished; either by accident (which while regrettable, is at least amenable to remedy), or intention to push a state of affairs; to which one can only shake one's head and push on with their own life, and hope that maybe there are enough like minded individuals out there to counterbalance the individual's in questions aspirations.

Already spent more cycles on this than I should have, good day.

[mobb_solo]

And one thing we learn as we've been hanging around in Time long enough to recognize larger cycles, is the world changes, people dont. Even as we change the world.

[banku_brougham]

That rule has been around for quite a while, and looks worse for wear now

[refulgentis]

> That rule has been around for quite a while

The rule established in this case is new, hence TFA, and all the time the lawyers and judge wasted on it :)

If I may suggest where wires are getting crossed:

You are sort of assuming it's like a logic gate: if 4th amendment violation, bad evidence, criminal must go free. So when you say "the rule", you mean "the 4th amendment", not the actual ruling.

That's not how it works, because that simple ultimatum also has edge cases. So we built up this whole system around nominating juries and judges, and paying lawyers, over centuries, to argue out complicated things like weighing intentionality.