[cgshaw]

Attorney here.

DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender.

Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute)

The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.

[mikhael]

I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?

[DannyBee]

An interesting question. Again, the main historical reason for the fifth amendment was torture, not to avoid knowing the truth, or that you were somehow magically sacred.

If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine.

Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed).

In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)

[nitrogen]

If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine.

I must state that this sentiment sickens me slightly. I sincerely hope that this interpretation is absolutely unthinkable by the time technology reaches that point. I don't believe that any world in which one's thoughts and memories are not private can ever be free.

[DannyBee]

Sorry, I should have been clear: I meant fine legally, in the context of the fifth amendment. It is not a statement of what I believe the social view/norm/etc should be, or whether it should be allowed. Only an objective assessment of whether it would fall within the context of what was currently protected and the intent of protecting that.

Personally, I would find it abhorrent, but that is not particularly relevant to the law.

[tptacek]

I read something recently --- can't remember what --- that suggested that the expensive ceremony around obtaining phone wiretaps at the state level were in part motivated by the concern that wiretaps came close to reading the thoughts of the accused.

[DannyBee]

I imagine this is more along the lines of 4th amendment or thoughtcrime.

I actually believe we are likely to need another amendment to protect us in the future, because I don't think the fifth does or would do a good job of this.

[nitrogen]

I think this is one of the sources of abrasion between lawyers and hackers on HN -- the distinction between "legal" and "ethical" is not always made clear. Sometimes you'll see a hacker post that things must be one way, while a lawyer replies that, no, in fact, they are completely the opposite (the hacker invariably reads "you imbecile" after this, even though it's not actually typed ;-) ).

In reality, the hacker may have a perfect understanding of the current law, but disagree with it vehemently, while the lawyer's personal philosophy is actually in agreement with the hacker's statement.

[DannyBee]

"In reality, the hacker may have a perfect understanding of the current law"

Maybe? I find engineers, like a lot of intelligent people, read a lot and think this means they understand things. If they spend their time starting by reading and learning fundamentals, i'd agree with you. Instead, a lot of the time, IMHO, they read and understand particular cases in particular jurisdictions, and then take that as a truth that applies elsewhere, when it doesn't. Maybe someday i'll make a law for hackers course as a MOOC.

They also want the law to be logical, and present logical extensions of arguments (IE they want the law to be an entirely rule based system, where if all rules are memorized, all outcomes are clear) . It's certainly a necessity to be able to reason logically, but the problem is, at its core, the law is about people and situations, and not logic. Logic is just a method that is used to come up with some possible solutions to these problems, and to determine possible outcomes. It is not a god that must be followed at all costs.

IE Judges are not going to do things just because they are logical, because they are people, and not logical reasoning automatons. The law's goal is to serve a societal need, not to be theoretically sound in all cases.

This often grates on most engineers, who want bright lines and definite answers.

Anyway, this is my experience having been a "real" engineer for 15 years before/during/after becoming a lawyer, and talking to an ungodly number of engineers over the years about things.

It could be my view is skewed because of the career path i've taken :)

I do agree that there is tension between lawyers and engineers on HN, but IMHO, this is due in large part to most lawyers being able to objectively detach their feelings from their legal analysis of a situation (something one is trained to do in law school), and forgetting to mention they are doing this.

[DannyBee]

>Attorney here.

So am I, though not a criminal one :)

>The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.

While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.

[cgshaw]

Sweet. I had to jump off last night, but I did some criminal appointments in both federal and state court to get some courtroom experience while fresh out of law school. Certainly not an expert, but capable of having a fairly deep discussion on search & seizure.

I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.

[samstave]

Question:

Assume the year is 1790.

DannyBee and PG are having a conversation in a sewer beneath Boston. DannyBee tells PG that he is going to rob the town bank and set it afire.

This was a verbal communication between the two.

There was a USG agent around the corner in another tunnel. He heard an echo of the two talking. This is the only evidence of the two communicating about the matter.

How is this prosecuted?

(please forgive the weak analogy - and improve if you can... but please tell me the 1790 equiv argument for what we are dealing with where the snooping is either protected or denied)

[edanm]

Could you explain the history of the 5th ammendmment in this context? I understand from some light Wikipedia reading that it was originally around mostly to prevent tortured confessions. Why is it still relevant at all?

[flagnog]

ummm, waterboarding?