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.
No they're not. Which ones will live a day less of their lives?
If I'm on surveillance footage near a crime scene, police have the right to look for me and question me. This isn't any different. It's just different sets of photons and electrons.
I respect the rights to privacy, but a crime happened, and the police have the tools to investigate. It's barely an inconvenience.
The burden of proof will still be on the investigators and prosecution to find out and show beyond a shadow of a doubt who performed the swatting.
Your liberties encompass so much more than this and a government that treads on them recklessly does far more damage than to simply waste an individuals time.
> It's barely an inconvenience.
You assume it's not. How would you verify this? Why should you have to?
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.
The ones who, having had their political inclinations revealed to adversarial law enforcement, then become subject to harassment for those views which should have been private.
> If I'm on surveillance footage near a crime scene, police have the right to look for me and question me.
The question is whether they should have the right to seize the surveillance footage by force if the proprietors would rather protect the privacy of their users. The third party doctrine is wrongful.
And given that it exists, so is keeping records like this that can then be seized using it.
> The burden of proof will still be on the investigators and prosecution to find out and show beyond a shadow of a doubt who performed the swatting.
This is assuming they're trying to prosecute a particular crime rather than using a crime as a pretext to get a list of names.
And it's about the principle, not the particular case. Suppose a protester commits a crime and now they want a list of all the protesters. Any possibility for harm there?
These are innocent bystanders. There is nothing suspicious about their activities other than they did something that a suspected criminal did. A perfectly legal activity? To take this to the ridiculous side, are we going to investigate everyone who took a poop at a specific time because a criminal did?
If there was a crime committed outside your home and you have surveillance footage that has captured passers by, you would not offer it to the police because you would rather protect the privacy of the all the anonymous passers by when one of them is likely the culprit?
That strikes me as highly unlikely. And if you wouldn’t, I am willing to bet that most people would. Why care about the privacy of anonymous passers by when you can help catch the perpetrator and increase safety around your home?
I expect so. But pretending that's what he was talking about in the quote you were referencing is going to undermine your (our, probably) position with those not already convinced.
There are cases like the bombing in Madrid where the US agencies cast out a wide net over possible suspects using data about people who converted to Islam and then used a bad finger print match (which everyone told them was garbage) to terrorize one suspect for weeks. They had no evidence that the guy was involved, they had no evidence that any of their suspects was involved, but they had a narrative and where happy about every bit of data that supported it. Meanwhile Spain convicted the actual bombers.
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.
Some hyperbole in your telling of the story and failure to mention that he was awarded restitution. According to Wikipedia:
Brandon Mayfield (born July 15, 1966) is a Muslim-American convert in Washington County, Oregon, who was wrongfully detained in connection with the 2004 Madrid train bombings on the basis of a faulty fingerprint match. On May 6, 2004, the FBI arrested Mayfield as a material witness in connection with the Madrid attacks, and held him for two weeks, before releasing him with a public apology following Spanish authorities identifying another suspect.[1] A United States DOJ internal review later acknowledged serious errors in the FBI investigation. Ensuing lawsuits resulted in a $2 million settlement.
https://en.wikipedia.org/wiki/Brandon_Mayfield
What point are you trying to make with this example?
And a dictator is just another set of cells and organic compounds? You can't break things down into this because then literally everything is the same. Literally everything you see is just a different set of photons and electrons. But those things have real effects. They aren't fungible. I don't care that my partner sees pictures of me naked, but I sure do care if cops or "the government" is, despite it being "just a different set of photons and electrons."
> The burden of proof will still be on the investigators and prosecution to find out and show beyond a shadow of a doubt who performed the swatting.
The burden of proof is step by step. I don't think I should have to cite the 4th Amendment but
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and ***no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.***
[0] https://en.wikipedia.org/wiki/Negative_and_positive_rights
[1] https://encyclopedia.ushmm.org/content/en/article/martin-nie...
These are not the same. You might think the difference is subtle, but I'll tell you that that subtly matters. And matters a lot.
And tbh, these two scenarios are quite different.
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.
Yes. But that's not the same
> potentially investigate if there's something off?
If you're asking information from people who witnessed a crime *and volunteering information* (which is not investigating that person and not accusing them of a crime, nor is lack of volunteering information a suspicious activity) and they then generate suspicious evidence, then yes, that enables capacity for investigation. It is true that things are not static, time exists, and entropy marches on.
That's the difference. There is nothing that these people did that warrants suspicion. These people are not being asked or questioned. This was not done voluntarily. They didn't even know this was happening to them. This was a thing imposed upon them, full stop.
I want to give a scenario to help make things clear. Suppose I send nudes to my partner. The government intercepts these without my knowledge, looks at these, and deletes them, and literally nothing else happens. Is this okay? I did not know this happened to me. No "harm" has fallen upon me. And as far as I know, nothing has changed in my life. But then later I find out this happened. Let's say 20 years later. I feel upset. Do you not think I am justified in being upset? I think I do. My rights were violated. It is worse that it was done in secrecy because it is difficult for me to seek justice. It is because I have the right to privacy. It is a natural, de facto, negative, but a god given right. They put my information at risk by simply intercepting it and making a copy. It was unnecessary and unjustified.
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...
As far as I can tell, this is explicitly within the context of the quote.
That said, I do see your point and appreciate your feedback. Maybe this can be an opportunity to turn this into a lesson? It seems too cumbersome to bring up from the get-go and similarly backfire. But discussing in the abstract is a difficult task when it is neither a natural way of thinking nor is it a common way that is taught. But I still think it is an important tool and something that does distinguish humanity. I am open to suggestions (I think HN of all places is more likely to be successful when discussing things in the abstract, but it is still general public).
[0] >>39798280
The issue is that the ratio can't mean much outside the realm of a criminal conviction when any of the rest of it would need a different standard.
Suppose we want to evaluate if it's reasonable for the police to search your residence for a murder weapon. Should we let 100 guilty people go free to avoid one search of an innocent person? That's probably not right, a search is enough of an imposition to require probable cause, but if you had to prove the crime to the same level as would be necessary for a conviction in order to get a warrant then searches would always be superfluous because they could only happen in cases where guilt is already fully established without the results of the search.
Conversely, with this YouTube kind of situation where the police want data on large numbers of people, the majority of whom are fully expected to be innocent, they're not even reaching probable cause for those people. Which is a lesser standard for justifiable reasons but it's still not one which is being met for those people. And so it's still a problem, but it's a different problem with a different standard.
Certainly Blackstone was not saying that infringement of rights (punishment) should not happen under any circumstance. Rather that there should be significant friction and that we should take great care to ensure that this is not eroded.
+1 on citing the constitution's wisdom of treating the government itself as adversarial, due to the enormous power it has.
+1 on pointing at the difference between positive and negative rights in this context.
I agree it would be bad if they were making the request in furtherance of a conspiracy to do either of those things.
But the police asking Google for a list of people who viewed a video, though, is in itself not one of those things. It’s similar them asking a business owner whose business has a camera overlooking a street near a crime scene to hand over surveillance footage (which will include innocent passers by) or a business that sells a product which was known to be used by a criminal to provide a list of purchasers of that product (which will include innocent purchasers).
Many such businesses will voluntarily hand over such information to assist with an enquiry. Some businesses might refuse, or might choose not to have such information.
And this is why judges are involved in the process of issuing warrants and grand juries in the process of issuing subpoenas when the police or a prosecutor want to compel the production of evidence of that sort.
But it just seems inevitable that, at the beginning of an investigation into a crime where the perpetrator is unknown, the first step is to identify possible suspects; by definition not all of the people so identified will end up being investigated. How are the police to do that if they can’t ask anyone for information that might bring innocent people’s names to their attention?
I appreciate it seems idealistic maybe, but it feels to me that we need rules that ensure ‘coming to the attention of the police in the course of an investigation’ is genuinely harmless; not rules that assume it automatically exposes you to harm.
Maybe because John Smith was one of only eleven people who signed in to a building on the day a crime took place, and he signed out right after the crime happened.
But should the police not look at the sign-in sheet at the building because that will infringe the privacy of ten innocent people?
You don't have a liberty from being investigated if they have evidence. They're not snooping around in your home without cause. The swatter was watching the live stream, and the timestamped IP logs can corroborate.
Just because it was an IP address and not a face or license plate on camera doesn't make it any different. You can't hide behind a chosen technology stack as a shield when the fundamentals of the case are the same.
An IP address is no different from a license plate on camera. It's a lead and the evidence was gathered at a crime scene. Nobody's home is being entered into. Nobody's iCloud account is being unlocked and ransacked. Gathering these logs alone won't lead to those things happening either.
I'm all for limits on power, but this seems to be entirely reasonable. This isn't a fishing expedition. IANAL, but I don't see how the 4th would be violated with either a court order or willing third party handing over the logs.
If the investigators get the IP logs, they shouldn't then be able to take those logs and ask the ISP for everything that those people were doing. The burden will be on the investigators to find more evidence linking one of those IPs to the call.
More crime will happen digitally year by year. Swatting has already entered the public consciousness. Just wait until people start strapping bombs to FPV drones or calling grandma with your voice.
We shouldn't stop at the software stack as some kind of impenetrable legal barrier that shrouds investigation. We should respect and enhance limits on power, but we also need to modernize the judicial tools to tackle the new reality.
The framers couldn't have imagined "swatting". The law needs to understand this. It should provide scoped-down investigatory tools that simultaneously guard and respect our constitutional rights and privacy. Access to anything beyond the scope of an actual crime that took place should be restricted.
The evidence has to be specific to an individual. In these cases they're obviously not.
> The swatter was watching the live stream, and the timestamped IP logs can corroborate.
He wasn't the only one doing so.
> Just because it was an IP address and not a face or license plate on camera doesn't make it any different.
Yes it does. There are wildly different expectations of privacy between these two scenarios, this is immediately apparent, and easily demonstrable.
I feel like you're just trying to win an argument and not actually thinking this through. I'm not saying you're fundamentally wrong on facts it's just that to follow your conclusions blindly does in fact violate individual rights, and those rights are superior to the governments "right" to investigate crime.
> You can't hide behind a chosen technology stack as a shield when the fundamentals of the case are the same.
You can't hide behind weak evidence to violate the privacy of groups of individuals. The crime has already occurred. The damage is done. You can't solve that problem by causing _more_ damage.
The victims go to the police and tell them that John Smith stole from them, so the police go and seize his files to confirm that the victims are telling the truth.
> But should the police not look at the sign-in sheet at the building because that will infringe the privacy of ten innocent people?
Asking for the sign-in sheet and seizing the sign-in sheet by force against the wishes of its owner are two different things.
> 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
"3000 innocent people for every one possibly guilty" isn't 30x Blackstone's ratio, it's 300,000x and worse, because the ratio is "100 actually guilty people for every one innocent". Of course, this actually helps your argument -- violating the rights of thousands of innocent people is unjustifiable -- but once you've given everyone cause to pause and work out what's wrong, they're going to reply with whatever they can find.
It's worth pointing out, but not worth derailing an entire conversation. It generates noise that prevents us from actually discussing the issues at hand. We're people, not computers. We can handle mistakes (and look how much work we put into computers to make them do this). And this thread blew up, you aren't the first to point it out. So forgive me if I'm a bit exhausted.[0]
I've made several mistakes (including the first blackstone link not pasting and pasting the whole comment instead of the specific part I was responding to (thanks firefox)), and so have you, and others. But let's not make the conversation about that. We'll never get shit done. We can take an aside to resolve any confusion, but it is an aside. Clearly by your explanation here you understood the point. And clearly we know that the number itself is arbitrary. Are we gonna shit talk everything Franklin said because he used 100 instead of Blackstone's original 10? No, because the number isn't what's consequential.
[0] We do meet each other here a lot and I have respect for you. It's why I'll take the time to respond to you. But I also know you to be better than this. I think you can also understand why it can be exhausting to be overloaded with responses and with a large number of people trying to tear down my argument by things that are not actually important to the argument. Specifically when the complaints make it clear that the correct interpretation was actually found. I'm happy to correct and appreciate mistakes being pointed out, but too many internet conversations just get derailed this way. The distinction of correcting vs derailing is critical, and the subsequent emotional response is clearly different in the two cases.
I'm happy to continue the conversation w.r.t the actual topic (even where we disagree), but it seems like wasted time to argue over a gaff that we both know was made and we understand what was said despite this.
The difference is how information was gathered.
People volunteering information to an authority? Perfectly fine (especially in cases when information was not requested).
People being compelled to provide information? Needs friction (checks and balances).
People being compelled to provide information about others who then unknowningly being investigated? Needs even more friction.
It's also important to note that in the hypothetical that random passerbyers are not being investigated either. A specific type of behavior is being sought. Either the explicit act of the crime being committed or a STRONG correlation with another piece of evidence (such as already knowing what the criminal looks like and trying to find a better view). Random people are not considered suspect.
In the article's case all viewers were considered suspect.
well if we're resorting to hyperbole comparing a murder to "watching a youtube video": say you knew and had multiple whistleblowers pass by in your footage, and they are all wanted by the government. You turning over the footage puts those whistleblowers in danger, who's only "crime" is revealing government corruption. Is catching one crook worth endangering multiple good people?
That's the issue, court orders aren't free to make and factors like "it is filming a public street" are taken into account. There isn't anything "public" about "viewing a video stored on a server of a large private website". And there enlies the rub.
Also, the story here isn't just "get me a list of 30k people who watched a video", which may be reasonable:
>The court orders show the government telling Google to provide the names, addresses, telephone numbers and user activity for all Google account users who accessed the YouTube videos between January 1 and January 8, 2023. The government also wanted the IP addresses of non-Google account owners who viewed the videos.
They want ALL your Google activity for a week, because you watched a video that may or may not have been recommended to you by Google itself. that can include schedules, emails, financial transactions, Maps inquiries, chat records, etc. Depends on how much you use google, but Google can power a lot of aspects of life these days.
Even if you aren't on Google you have your IP revealed for simply viewing a video. That feels like an overreach.
------
The second factor is that they barely have a specific suspect. That just think "they saw this video -> they may be money laundering":
> Google to hand over the information as part of an investigation into someone who uses the name "elonmuskwhm" online.
I can't believe that passed a court order. some random handle is selling bitcoin and may have watched this video, so lets get all the data of everyone who watched this tutorial at this time.
>How are the police to do that if they can’t ask anyone for information that might bring innocent people’s names to their attention?
by narrowing it down to more than 30k people. That can be an entire town for some smaller areas
>but it feels to me that we need rules that ensure ‘coming to the attention of the police in the course of an investigation’ is genuinely harmless; not rules that assume it automatically exposes you to harm.
in my mind this is the more idealistic scenario. They've had decades to espouse this sentiment and they aren't even close to doing so.
Also, the issue is that it's not like the government deletes this data after they are done. Quite the contrary. Maybe the US government needs its own GDPR protocol so this won't be pulled up on record down the line.