[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.

[everforward]

I'm genuinely at a loss for how this doesn't make sense. "Crime" is absolutely a nominal status. Things can be made into a crime or no longer a crime arbitrarily. Abortion was legal across the US, and then it wasn't. Abortion didn't change at all, but how we refer to it did. Ditto for possession/distribution of alcohol, some kinds of firearms, slavery, etc, etc.

I am not arguing that possession of child pornography is good or permissible, my point is that the things police do are only "police actions" rather than "crimes" because we choose to refer to them as such. We could pass a law tomorrow that says unlawful search and seizure is a crime, and then the "crime" label would apply to the police as well. The specific crime would be different, but both would be categorically "crime". It is undesirable to make possession of CP by police a crime because it would interfere with their ability to investigate it, but those justifications do not apply to why unlawful search and seizure should not be a crime or at the very least fruit of the poisoned tree.

[refulgentis]

> I'm genuinely at a loss for how this doesn't make sense

I'm really not trying to be mean or making charged comments in any of the following, I apologize if it reads that way. I really appreciate your investment in this thread, it wasn't a driveby, you mean what you're saying, you're not trying to score points AFAICT. I think working through my discomfort is the best way to pay that forward. I save the most concise / assuming / judgey version of this for the end of the post.

There's just something very...off....with the whole thing. Like it reads like an intellectual exercise, I get the same vibe as watching someone work really really hard to make a philosophical argument to stir conversation.

You have these absolutes and logical atoms that seem straightforward and correct, but they're handwaving away a whole field and centuries of precedent.

There's this shuttling back and forth between wide scope and narrow scope thats really hard to engage with. Like, yes, we know "crime" is a nominal thing. My mind immediately jumps to "yes, calling things 'bad' is nominal and subjective" ---

Then, my mind transports me back to my sophomore year english class where someone starts free-associating about how nothing can be 100% confirmed to be real. I'm frustrated there, because, yes, that's true but doesn't shed any light, there's nothing to be gained from mining that vein, and doesn't map to how people have to engage with the world day to day.

You also have a very hard time accepting that this isn't reducible down to "unlawful search and seizure via 4th amendment violation" --- I don't mean to be aggressive, here: after a day and a lot of your thoughts, I still genuinely don't know if you understand that these things have ambiguities and that's why there's a whole industry around them.

I think we agree on:

- calling things bad is subjective.

- similarly, calling things "crimes" is subjective, and part of that is contextual (ex. we allow some people to do some things, but not others)

Then from there, I bet you'd agree to:

- therefore, we need some sort of dispute process to sort these things out

- lets say that's called the current legal system

Then from there, it feels like you're asking us to agree to:

- if something is declared judged to be bad moving forward, it is okay to punish those who did the bad thing in the past, no matter the circumstances

- now lets apply that specifically:

- if cops did a thing that's not allowed moving forward, then it is a moral imperative for the cops to drop every case that involved doing the thing that's not allowed moving forward

That's just way too far for anyone who isn't doing a philosophical exercise.

ex. Miranda v. Arizona established what we call "Miranda rights" -- now that a judge says there's a specific incantation to recite that courts will accept as proof criminals were advised of their rights. Are all cases where the Miranda rights were not read suddenly dropped? No, that'd be laughable, no society would tolerate the legal system dropping every case where someone was arrested in that scenario.

The most concise thing I can say, which unfortunately is judgemental due to the conciseness, is the whole thing reeks of an engineering mind expecting their understanding of the law to be an absolute, somehow overlooking that the whole point of the legal system above entry-level courts is there are no absolutes. From there, lets say you know that and accept that, because that's very likely. Then what happens with the Miranda rights thing? That's one of countless examples, but it's useful because A) I'm sure you grok Miranda Rights if you're in USA B) the principles you're espousing being applied there would lead to an obviously unacceptable outcome, so if your instinct is to say "yeah, do it, free everyone who talked to the cops!" I know you're just killing time doing a thought exercise --- which I do sometimes too! Not judgement.

[everforward]

I do want to apologize for the hostility or frustration of that comment. It had read as a drive by to me, but it wasn't a productive way to engage regardless. I sincerely appreciate you engaging, and I think your post does bring interesting points and I appreciate you taking the time to write them down.

> There's this shuttling back and forth between wide scope and narrow scope thats really hard to engage with.

I can very much see how it reads that way. My intent was to address the comment one or two up from yours saying that they were different because one is a crime, but that is very much a different conversation than this specific case. It feels a bit like I'm having two separate conversations on my end too, which is somewhat difficult for me to do without either writing a novel or losing track of nuance. I'll make an effort to keep this more constrained so it feels less like arguing with a moving target, that is certainly not my intent.

I'm with you on the parts that we agree on, and the parts that you think I'd agree with.

> Then from there, it feels like you're asking us to agree to:

The part that feels, to me, like it's not asking too much is that we already ask this of every other citizen in their everyday life. E.g. (and I apologize for not having a less contentious example) the ATF has repeatedly refused to set quantifiable standards for when someone is selling enough firearms to need an FFL. It's all about being "engaged in the business" and whether sales are for profit or collecting; there is no hard and fast "you must if you have X sales that meet Y criteria".

That's actually much more clear than it used to be; it used to just be "engaged in the business" and you just had to guess whether liquidating a collection made you in the business or not.

It doesn't feel like a huge step forward to say that the people pursuing crimes need to handle ambiguity at least as carefully as a private citizen. Especially considering that police can get a warrant as a definitive answer, where a judge typically won't answer hypotheticals from a citizen.

Furthermore, that was exactly how it worked until the good-faith exception was made in United States v Leon, in 1984 (not a joke, but I did have a chuckle. It's hyperbole but a cute coincidence). A significant portion of Americans were alive when the good faith doctrine didn't exist, and this evidence would have been fruit of the poisoned tree.

It's a little hard for me to accept that the Overton Window has shifted so dramatically that people are unwilling to accept a system they were born with.

> if cops did a thing that's not allowed moving forward, then it is a moral imperative for the cops to drop every case that involved doing the thing that's not allowed moving forward

I would argue for more nuance than that, but that's close. Briefly, I am arguing that evidence obtained via searches that are found not to be supported by the 4th Amendment is necessarily fruit of the poisoned tree, and should not be admissible as evidence in the case nor as evidence to obtain a warrant for a later search. That may result in the charges being dropped in some cases, and not dropped in others where there is other substantial evidence.

Conjecturing about this case, it seems like they would probably have to drop the charges. I don't know though, maybe they have other evidence obtained via other means they could use.

> ex. Miranda v. Arizona established what we call "Miranda rights"

Aside, but Miranda is an interesting example because he was re-tried without using his confession and the conviction stuck that time. An interesting example that a fruit of the poisoned tree policy does not necessarily require dropping charges.

I am perhaps out of the Overton Window here, but I don't see why that is an insane outcome of Miranda though I will certainly acknowledge that there would be fallout. My line of thinking is essentially that the text of the 4th did not change, which means that Miranda rights were free for anyone to claim at virtually any point in history (presuming they thought to make the argument). The outcome is necessarily prejudiced; either against defendants who could have argued for rights they didn't know they had, or against the judiciary for failing to establish that those rights exist at an earlier point. It makes sense to me for that to be prejudiced against the judiciary, because they are the arbiters of what rights people have, and had the ability to suggest and establish those rights at any point they wanted. Essentially if we were going to assign who is responsible for knowing that Miranda rights should exist before they did exist, I would expect that of the arbiters of rights far more than the defense attorney.

I am totally okay with that being unpopular, though. I'm not arguing for the majority of people, just myself.

> the principles you're espousing being applied there would lead to an obviously unacceptable outcome, so if your instinct is to say "yeah, do it, free everyone who talked to the cops!" I know you're just killing time doing a thought exercise --- which I do sometimes too! Not judgement.

Just to reiterate briefly, I do not think they should be immediately set free, but I do think they would be due a retrial without their confession (in the Miranda case specifically) if their confession is material to their conviction. It's not a thought exercise to me, but I may be outside the Overton Window.

I am aware that this would potentially result in some guilty people going free, but I would eat my hat if there wasn't a single person in jail or prison who was innocent and coerced into a confession that could have been avoided if they had known their Miranda rights. I also know that there are no absolutes in the law. It is absolutely a vague mess propped up by piles of precedent that can even be conflicting.

My contention is that given the ambiguity of the law and the power the government wields, defendants should be offered the full protection of the law as we currently understand it. I find the situation frustrating, which makes me look for a source to blame, but I think my real underlying sentiment is a feeling that it is unfair for citizens and defendants to suffer the consequences of the ambiguity the legal system.

It is hard for me to fathom the despair of someone who was innocent but confessed to a crime after a 12 hour investigation without knowing that they could remain silent or demand a lawyer. I cannot fathom the despair of watching the Miranda trial and knowing that their lawyer could have argued the same thing, but didn't, and now they're stuck in prison for however many years without any recourse.

That doesn't directly apply to this situation, because I do think this guy is guilty, but these precedents will be used in cases against innocent people. I find it a condemnation of our justice system if we are willing to risk the rights of innocent people to nail a few convictions.

If you have the time, I would really encourage reading the dissenting opinion in United States v Leon (I'll link it below). Justice Brennan has a far more well articulated opinion than me, that is likely less far outside the Overton Window. I'll leave a snippet that I find persuasive here, but the whole thing is worth at least a skim.

" In contrast to the present Court’s restrictive reading, the Court in Weeks recognized that, if the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other; because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual’s Fourth Amendment rights may be undermined as completely by one as by the other."

https://www.courtlistener.com/opinion/111262/united-states-v... (you have to click the Dissent tab, I can't link directly to it and dissenting opinions seem to be difficult to find deep links for).

[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.