The first one where the police uploaded videos and wanted viewer information is absolutely egregious and makes me wonder how a court could authorize that.
The next one, which I didn’t fully understand, but appeared to be in response to a swatting incident where the culprit is believed to have watched a specific camera livestream and the police provided a lot of narrowing details (time period, certain other characteristics, etc) appears far more legitimate.
They asked for information about a video watched 30k times. Supposing every person watched that video 10 times AND supposing the target was one of the viewers (it really isn't clear that this is true), that's 2999 people who have had their rights violated to search for one. I believe Blackstone has something to say about this[0]. Literally 30x Blackstone's ratio, who heavily influenced the founding fathers.
I don't think any of this appears legitimate.
Edit: Ops [0] https://en.wikipedia.org/wiki/Blackstone%27s_ratio
So not sure where you got the impression he's okay with up to 100 people being disturbed so we can catch one bad guy.
But then, he wasn't really talking about that was he? Better the guilty go free than the innocent suffer what? He was, essentially, talking about the principle of innocent until proven guilty; that innocent people shouldn't suffer by being punished for a crime unjustly.
2999 innocent people, in your formulation, though, are not being punished for a crime. They're not even being accused of a crime.
They are, however, being harmed.
It's easier to use historical examples because they're not afflicted with modern politics.
The FBI was known to investigate and harass civil rights leaders during the civil rights movement. Suppose they want to do that today.
Step one, come up with some pretext for why they should get a list of all the people who watched some video. It only has to be strong enough to get the list, not result in a conviction, because the point is only to get the list. Meanwhile the system is designed to punish them for a thin pretext by excluding the evidence when they go to charge someone and their lawyer provides context and an adversarial voice, but since their goal here isn't to gather evidence for a particular investigation, that's no deterrent.
Step two, now that they have the list of people interested in this type of content they can go on a fishing expedition looking for ways to harass them or charge them with unrelated crimes. This harms them, they're innocent people, therefore this should be prevented. Ideally by never recording this type of information to begin with.
There is a reason good librarians are wary about keeping a history of who borrowed a particular book.
I very much agree that (some, probably minimal) harm is being done to these people. Pretending that they "suffer" in the sense Blackstone was using the word is disingenuous.
Not at all. I would say that it's usually (not always!) small in the particulars but adds up in aggregate, and that we should be a lot more careful with how much surveillance we allow.
I just would also say that the kinds or amounts of harm being done there are manifestly not what Blackstone was talking about in his "formulation" as it leads immediately to absurd conclusions that go very well past the present case.
I will not here that "there is a concern here analogous to Blackstone's ratio" is a different thing than, paraphrasing what was up thread, "this is substantially more extreme than Blackstone's ratio should forbid".
And in case I haven't said it in thread anywhere, I share concerns about surveillance. I just think if we are enlisting support from historical figures, we should find a quote where they're talking about the question or acknowledge the distance, rather than pretending the quote means something it didn't - that will only turn off those who might be persuaded.
I agree with this. What's happening here is different than the scenario in the original ratio, even though it's a similar concern.
> I just would also say that the kinds or amounts of harm being done there are manifestly not what Blackstone was talking about in his "formulation" as it leads immediately to absurd conclusions that go very well past the present case.
If we direct ourselves to the case at hand, I'm not sure that a general rule that the government can't compel innocent bystanders to assist an investigation against their will would even be a net negative, much less cause serious problems. When a crime is committed people will generally be inclined to help bring the perpetrators to justice, because who wants thieves and murderers and so on going unpunished? Whereas if someone is disinclined to help, we might consider that they could have a reason, e.g. because the law being enforced is unjust or they believe the investigation is not being conducted in good faith, or they simply don't trust the government with the information, at which point the ability to refuse acts as a reasonable check on government power.
> I just think if we are enlisting support from historical figures, we should find a quote where they're talking about the question or acknowledge the distance, rather than pretending the quote means something it didn't - that will only turn off those who might be persuaded.
I feel like historical quotes tend to detract from discussions in general, because they're effectively an appeal to authority and then the discussion turns to exactly where we are now, debating whether the current situation can be distinguished from the original, which is a separate matter from whether what's happening in the modern case is reasonable or satisfactory in its own right.
Correct me if I'm wrong, but I'm pretty sure Blackstone wrote about negative or natural rights.
In fact, let me pull out more context around the exact quote. He specifically addresses direct punishment but immediately after is the nature of having the duty to defend one's innocence. Which is exactly the case here.
Fourthly, all presumptive evidence of felony should be admitted cautiously, for the law holds that ***it is better that ten guilty persons escape than that one innocent suffer.*** And Sir Matthew Hale in particular lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead; on account of two instances he mentions where persons were executed for the murder of others who were then alive but missing.
Lastly, it was an antient and commonly-received practice that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses.
I know that this is a point of contention in this (these) discussions, but I stand by that a right is being violated and harm is being done by the simple act of investigation. Mass surveillance (which is mass investigation), is an infringement on our god given rights. The point is to have friction for the infringement of rights. All rights can be violated, but they must need sufficient reason. It does not matter if these rights seem inconsequential or not. Because at the end of the day, that is a matter of opinion and perspective. Blackstone was writing about authoritarian governments and the birth of America was similarly founded on the idea of treating government as an adversary. These were all part of the same conversation, and they were happening at the same time.
I do not think I am taking the historical quote out of context. I think it is more in context than most realize. But I'm neither a historian nor a lawyer, so maybe there is additional context I am missing. But as far as I can tell, this is all related and we should not be distinguishing investigation (or from the other side of the same coin, exculpation) from punishment as these are in the same concept of reducing one's rights. They are just a matter of degree.
https://oll.libertyfund.org/titles/sharswood-commentaries-on...