[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.

[HideousKojima]

It's not a double standard though, it's different standards for fundamentally different kinds of actions (state police action vs criminal activity)

[everforward]

Those are only nominally different, insofar as the justice system chooses to call some acts one and some acts another. It doesn't speak to the nature of the act, only what we choose to classify it as.

I.e. unconstitutional searches could be criminal activity if the judiciary just decides to classify it differently.

There are certainly differences in the nature of the act that we could talk about, but how the judiciary classifies them is only a nominal difference.

[refulgentis]

Idk why you keep saying way out there stuff, then repeating back mundane stuff.

Yeah, the difference between a bad thing and a good thing is what judges say.

No, there is a difference bigger than "nominal", which means in name only. Go out on the street and try explaining why someone having child porn, and cops handed a subscriber name + child porn image by Google exactly the same thing, there's only a "nominal" difference.

[trod123]

> I do not find "the justice system treats them differently... circular appeal to authority.

You may not know it, but you are effectively referencing the difference between a "rule of law" and a "rule by law" in the important parts at least.

This goes back to and falls under social contract theory, and the "rule of law" in society is meant as the final protection for its members, and to provide non-violent conflict resolution impartially, justly, and fairly, equal under the law, and accessible.

The moment the required components cease to exist, is the momentous beginning of a trend towards the failure of society, as it will naturally mean increasing violence and reversion to the natural order, rule of violence.

There is a valid argument to be made that despite many people claiming we have the former, we are actually living in the latter.

The latter allows many miscarriages, such as the infamous soviet judiciary example of, "you show me the person, I'll show you the crime".

Possession laws historically are also particularly problematic in this regard because evidence can be planted, or in the case of digital systems, induced creation of evidence involuntary (given how systems work and how callbacks can be injected by pointing software to a third-party resource to download), regardless there are many potential situations where the viewing of such horrifying material is unrelated to the choice of a person accused.

That of course doesn't appear to be the case here given what's been written, but nonetheless it is important to have firm, objective, and rational requirements to protect citizens. The trade-off is some small number of bad guys may get to go free as a result, and that's a tradeoff anyone should be glad for when it comes to corruption and how it devolves into tyranny unchecked.

The law rarely differentiates mitigating circumstances, often leading to a guilty until proven innocent situation for most, when these types of structural flaws are allowed. For example, there are locksmith tools that are considered burglary tools, and mere possession in some places is grounds for arrest (a felony), these tools share in common the physical shapes for other legitimate item uses.

System's without appropriate procedures and process for punishing abuses almost always leads to totalitarianism when no feedback system is in place to prevent such abuses from getting out of hand, which is why any true American should be up in arms when abuses happen as a result of corruption. Corruption can occur for a number of reasons that do not benefit a person. For a full treating of corruption, Johnston wrote a book on it ("Syndromes of Corruption").

Unfortunately, many judges today view the constitution as only being binding on government itself (in isolation), and have long taken the literal or constructive ruling instead of going with the spirit of the law, lessening our protections over time gradually but surely. This will eventually lead us to societal collapse.

It is a sad state of affairs, but regardless of the nature of the crime, the ends do not justify the means absent direct survival threats (which cannot be soundly argued in this case). Ends justifying means is only valid against existential threats.

When those means are allowed to change arbitrarily, the very next time it will be you or someone close to you on the sacrificial altar as a matter of some corrupt officials convenience, maybe merely for engaging in your protected rights to free speech to limit corrupt behavior or expressing disagreement in retaliation; there will only be an indirect link.

These tools are then ready made to be used in retaliation arbitrarily.

That said,

In this case, at least from what I've read, it appears a fairly clear cut case of fruit of the poisoned tree.

Law Enforcement could easily have applied for a warrant based on the probable cause of the hash matches, but instead chose not to. There is also the question of methodology Google uses in how they manage and enter new hashes into their hash database (which went unanswered).

They would have needed a warrant to justify everything else that came later. That is classic fruit of the poisoned tree. Thus it is a constitutional violation.

Additionally, I'm sure it comes as no surprise to most HN readers who are programmers, but hashes are not unique they are loose fingerprints related to structure but not giving fine detail for a exact match.

At its core, it is a finite field, which means that there can potentially be an infinite number of paths/files out there that match a same given hash.

Using a hash to match results of file structure, are not fool proof, and as a result of this ambiguity, it can potentially impinge legitimate activities, or obscure a chain of evidence without recourse.

For example, say that initial hash was not correctly identified when it was added to that watch list because maybe their AI false positived on it? Or it was submitted without review as being related to some censorable activity (legitimate under 1st amendment), all you have is a hash you can't verify the content.

This is how censorship or social credit can easily happen under a color of law in private parties hands; this has been covered extensively related to EU discussions on Client-Side-Scanning (and why its unreasonable given the repercussions for false-positives).

When you match only hashes, you don't know what the underlying content is aside from a likelihood/probability that it may be the same as some other file, which is why you need to be able to verify it is the exact same.

When your job is to find such people/things you should be doing what's needed (within the law) to ensure the strongest case possible.

The technical details matter, and processes must follow objective measures and be rational, and follow the constitution. Law is procedural, these are professionals. They should have gotten a warrant at the hash match.

Hashing collisions have happened in the past, mathematically this is known and expected given the structure of cryptographic hashes.

The investigators should have gotten a warrant to confirm.

The Failure to get a warrant here was a procedural failure, and left the door open for challenge. From what I can see in the write-up, it should be dismissed.

Failure to do so, effectively sets a precedent such that anything not directly addressed by a previous court can be construed as done in good faith to deprive people of their constitutional rights, allowing contradiction and further paralysis in the courts moving forward, and also promotes the interpretations that case law and legislative law override constitution protections.

Arguably, if the constitutional violation is found and admitted, there is no valid good faith exemption that can be applied to nullify the constitutional cure. The constitution supersedes everything else, including procedure, law, and case law.

The violation must be cured lest the entire constitution lose its power to non-enforcement (and the based system degrades towards tyranny), something that has been arguably happening as a result of long-standing corruption which goes unpunished.

Yes, the accused crimes may be heinous, but everyone is equal under the law. The moment this ceases to be true and happen with any regularity, is the day the rule of law has failed, and society then fails back to a natural law of violence. No one wants that.

It may not happen overnight, but it will happen regardless because history is full of examples where these dynamics cause those outcomes.

In many cases with very few exceptions today, judges who are older come to believe they are above the law, and fail to check their power, and in the end, they violate their sworn oaths. There is no punishment for them for this in most cases, and they never go back and correct mistakes they make (afaik, it is a rare exception if it happens at all).

Any true American should have a solid educational foundation in Social Contract Theory, and the basis for society. You are right to be concerned about the circular reasoning. In the absence of external objective measures, processes, and procedures, such circular reasoning inevitably devolves into delusion.

[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]

I'm not OP, but I consider your response quite reasonable.

I found your reply informative and specific, though I took a more fundamental approach in my response to OP, focusing on components required for a "rule of law" compared to a "rule by law" (kafka/soviet style).

I've done a lot of historic reading, and any time those components fail, violence increases proportionally to the lack of agency for non-violent resolution available.

It may just be speculation on my part, but given the repeated cycle, and detailed accounts, it seems there are parallels in objective measures of these components compared with witnessed events, which are what citizens use as a signal to determine whether they take violent action.

The events seem to follow quite accurately along what's been written in social contract theory, and from Thomas Paine's time & writings.

Obviously these type of writings are from times that are dark and violent, and violence benefits few if any which is why there's good cause in trying to prevent that kind of degradation in existing systems, and the dynamics that cause it.

[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.