If you were a crime victim and key evidence was on suspect's phone, would you want govt to search phone w/ warrant?— Orin Kerr (@OrinKerr) February 22, 2016
It's an invalid question to ask. Firstly, it's asking for the emotional answer, not the logical answer. Secondly, it's only about half the debate, when the FBI is on your side, and not against you.
The emotional question is like ISIS kidnappings. Logically, we know that the ransom money will fund ISIS's murderous campaign, killing others. Logically, we know that paying this ransom just encourages more kidnappings of other people -- that if we stuck to a policy of never paying ransoms, then ISIS would stop kidnapping people.
If it were my loved ones at stake, of course I'd do anything to get them back alive and healthy, including pay a ransom. But at the same time, logically, I'd vote for laws to stop people paying ransoms. In other words, I'd vote for laws that I would then happily break should the situation ever apply to me.
Thus, the following question has no meaning in a policy debate over paying ransoms:
If it was your loved one at stake, would you pay the ransom?Even those who say "no" are being disingenuous. It's easy to say it because they aren't in danger of the situation ever happening to them. Most would change their answer to "yes" if it became real.
The second reason the original question is invalid because it ignores why we have warrants in the first place. Unlimited police power is a bad thing. What you need is a counterbalancing question.
For example, in 2007 (before iPhones became popular) the FBI showed up at my business and threatened me in order to keep something quiet. Specifically, I was to give a talk at a conference on how, contrary to what the company "TippingPoint" claimed, it was easy to decrypt their "signature" files. That company convinced the FBI that it was important to "national security" that I keep such information quiet. So the FBI came to our offices, and first asked politely, then started threatening me, in order to keep the information quiet.
So, in such situations, should the FBI be able to get a warrant and search my phone? Note that a warrant would be easy to get, as the company TippingPoint suggested that I was also trying to blackmail (demanding money to stay quiet). It was a lie, they kept offering to bribe us to keep quiet and we kept telling them "under no circumstances", but it's enough to get a warrant in order go fishing for something else to hang us by.
If FBI threatened you to keep quiet about something, should they be able to search your phone w/ warrant?@OrinKerr— Rob Graham ❄️ (@ErrataRob) February 22, 2016
This is less a meaningful question. Most people are sheep, believing that as long as they don't stick their heads up above the herd, they are in no danger of getting their heads lopped off. But even if it's not your head in danger, don't you want to protect those who do raise their heads?
Rather than a "Going Dark" problem, ours is one of "Going Light". We all now carry a GPS tracking device in our pocket that contains a microphone and video camera. We are quickly putting a microphone (and sometimes camera) in every room in our house, with devices like smart TVs and Amazon's Echo. License plate readers line the roads, and face recognition (as well as video cameras) are located everywhere crowds gather. All our credit card transactions are slurped up by the government, as are our phone metadata (even more so since the so-called USA FREEDOM ACT).
The question is whether the "warrant upon probable cause" is sufficient protection for the Going Light problem? Or do we need more limits?
We activists think more limits are needed. The first limits are the ones requiring no special laws. Encryption is basic math -- the effort necessary to stop encryption would require a police state worse than that created by the War on Drugs. The government should not be able to conscript programmers to create new technology on their behalf, as in the current Apple-v-FBI case.
The War on Drugs and the War on Terror have made a police state out of America. We jail 10 times more people, per capita, than other free nations (more than virtually any other nation). Law enforcement steals more through "civil asset forfeiture" than burglars do. We can no longer travel without showing our papers at numerous checkpoints. We can no longer communicate nor use credit cards without a record going to a government controlled database.
Yes, this police state works in our favor when it's us that have been a victim of crime. But on the whole, we are now more in danger from the police state than we are from crime itself.
BTW, @orinkerr is awesome. He asks the question because he honestly wants to know the answer, not because he's slyly arguing the point. He brings up the question because so many others mention it. I'm using his as they example only because it's the one that's handy, and I'm too lazy hunting down a different one. Update: as he points out.
7 comments:
The last sentence provides a dangerous, unsubstantiated claim. I would strongly advise placing it earlier in your article and providing adequate supporting arguments, or else retracting it.
Is "warrant upon probable cause" sufficient protection - that is the question to debate and answer...
Nice post!!
I substantiate my last sentence. We have the highest incarceration rate in the world, and the police steal more from 'civil asset forfeiture' than burglars do. If you've got $10,000 in cash in your car, chances are higher the police will take it from you (permanently) than burglars.
@orinkerr actually asked two questions back to back:
1) Who should win, FBI or Apple
2) The hypothetical victim question
I voted defore he pulled down the second poll and it was 70% in favor of Apple and 80% in favor of "if I was a victim, I'd want to contents of the phone." I.e. people want two incompatible things. Nonetheless he was being academic, not thinking and it backfired. He pulled the poll and apologized for a bad experiment.
That's... not quite true, or at least not the right comparison, Mr. Graham.
While often-reported more generally, the statistics the Institute for Justice used were comparing just burglary at 3.5 billion USD in 2014 (defined as entering a structure unlawfully to steal an item, in a way that explicitly excludes automobiles) to that of federal civil asset forfeitures going through the Department of Justice's Asset Forfeiture Program and Treasury Department's equivalent. However, the category of larceny-theft was estimated to reach 5.5 billion USD in 2014, 1.64 billion USD from automobile thefts or thefts of automobile accessories, while the DoJ numbers tend to revolve more around big-ticket matters like the Toyota or financial trading punishments. Even if you think these aren't good law -- the Toyota settlement in particular rankles me even by the terrible standards of class action lawsuits -- they're not quite the same category.
((The Institute for Justice numbers /probably/ missed some purely-state forfeitures, too, since they were mostly looking at the equitable sharing program. The equitable sharing stuff is probably where most of it goes these days, though.))
Agreed on the meta-level concerns, though. The 4th Amendment's protections against unreasonable searches are little more than a figleaf at this point, and its remedies helpful to balm very few types of serious harm abuse could apply. Were I a crime victim, I'd be quite happy for the police to skip the whole warrant, search, and trial and just start beating the criminal's head in... but that's not the only chain of events, not just in which side I fall on, but in whether the police have the correct aims.
You aren't addressing the case where someone is just as sure *you're* a criminal, absent evidence, in which case you would be the one searched and beaten without warrant. I don't want that for you, but maybe you like your odds in that tradeoff.
I disagree with Mr Graham's post. To summarize, a liberal is a conservative who has spent a night in the cells. A conservative is a liberal who has been mugged.
The longer version is found at this link. https://lawrenceserewicz.wordpress.com/2016/02/24/neither-apple-nor-mr-graham-are-spartans-a-response-to-mr-graham/
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