An interesting side-effect of the scale and efficiency of current tech is this phenomenon of deploy first, ask questions later.
Ideas and tools can be conceived, developed, deployed and adopted before a (state-sanctioned) response can be formed. Significant results (and value) can be reaped in the inherent lag between deployment/discovery and responsive-legislation.
In tech, we've seen it recently as startups deploy faster than labor laws can (re)define boundaries.
In government, when it's the police doing the rapid deployment... well, it's kind of uncharted territory.
Has anyone modeled a system of checks and balances where one of the three processes has an n month setTimeout() before it can respond to inputs from another? Where does the system find equilibrium?
This is the first time I've heard of a pen register, apparently somewhat broad, modern parlance for things that capture phone data. It seems pretty damning that they spent the time to fax MetroPCS but couldn't, ya know, even get the pen register or ask a judge to ask if they thought it was a good idea.
Maybe the bad guys are really bad, but sometimes I hope that they get off just to make the point that the cops are suppose to do the "right thing", otherwise the cops really are the bad guys.
The term dates back to 19th-century telegraphy [1]. 18 U.S. Code § 3127 [2] defines them specifically:
the term “pen register” means a device or process which records or decodes
dialing, routing, addressing, or signaling information transmitted by an
instrument or facility from which a wire or electronic communication is
transmitted, provided, however, that such information shall not include the
contents of any communication, but such term does not include any device or
process used by a provider or customer of a wire or electronic communication
service for billing, or recording as an incident to billing, for
communications services provided by such provider or any device or process
used by a provider or customer of a wire communication service for cost
accounting or other like purposes in the ordinary course of its business;
> Maybe the bad guys are really bad, but sometimes I hope that they get off just to make the point that the cops are suppose to do the "right thing", otherwise the cops really are the bad guys
The US way is to exclude evidence and protect the cops--the idea being that cops have no motive to cross lines if they can't use the evidence. More and more I'm leaning towards what I understand is the European way: let the evidence stand, but hold the cops accountable for their actions through parallel civil and criminal proceedings. The feedback for "cop behavior" is direct vs indirect.
The constitutionality of actions used to obtain evidence is completely independent of the truth of the defendants guilt or innocence. If the actions are bad, actually prosecute the actions in non-kangaroo proceedings.
The Constitution restricts what government may do against individuals. Perhaps the agents that break the rules should be held individually accountable in more cases than they currently are (though, as with most cases of using law to provide accountability for executive agents, there are agency problems that make that unlikely to be effective in many important cases), but that should not be an excuse to void the purpose of the restrictions, which is to limit the power of government, not just its agents individually. The government cannot be allowed to benefit from the it's unconstitutional acts while certain agents are punished as scapegoats.
> Sometimes it's not only about the government. Sometimes victims of crime deserve justice, too.
When the power of the executive branch of government is being used as the means seek something, its always about the Constitutional limits on government. No matter what you feel you deserve, the Constitution is the deal by which the outer bounds of the scope of your privilege to have the coercive power of government deployed to get you what you deserve is limited.
Government shouldn't get to escape the Constitutional limits on its application of power against those subject to it because "think of the victims of crime", or "think of the children", or "think of..." whatever else.
Otherwise, we're tossing out the concept of limited government in favor of arbitrary power.
You can view government as an imperfect tool that attempts to achieve the impossible goal of justice, or your can view government as the definition of justice.
It's a question of whether to judge an imperfect tool based on details of how its mechanism works or whether to judge it based on how well it performs the tasks we ask of it.
I'm just saying that within this focus on microtransactions above all else the overall goals are lost and the balance of penalties is wrong. When the government goofs, we let the criminal go and deny the victims justice. The purpose of the justice system is justice. The focus on these microtransactions elevates government as the definition of justice which seems much more expansive than the alternative, IMHO.
> You can view government as an imperfect tool that attempts to achieve the goal of justice, or your can view government as the definition of justice.
You could also view "justice" in such a way that the claim that a victim of crime "deserves justices" is, to the extent that it is meaningful, completely inapplicable to the concept of criminal punishment.
> It's a question of whether to judge an imperfect tool based on its mechanism or whether to judge it based on how well it achieves the tasks we use it for.
No, even agreeing that government should be viewed as an imperfect tool for achieving justice, its a question of what "justice" means, and whether it can ever be consistent with violating the agreement by which persons are, under the guise of acting in the name of government, granted power over others.
Some would view such violations as, themselves, inherently and fundamentally unjust.
>In the situation where knowledge of guilt has been found by unjust means, how does ignoring that knowledge promote justice.
By signalling to police that whatever sketchy things they did to obtain the knowledge won't be available to help them achieve their goal.
Example, police use defective probable cause to search a motorist's vehicle; and I don't just mean search, but really search, as in pull the carpets up, remove interior panels, remove all of the contents of the trunk, break down the tires and look inside; it is destructive. Although the car may be re-assembled, they never are returned to their pre-tossing state. The only thing preventing this from happening more often is the amount of labor involved in tearing the car up. Police (Feds sometimes do) don't have to pay for damaging someone's property when they do this. They don't even have to put it back together. Same goes for your home.
> Which is why the government should be held accountable to the victims of that abuse
The exclusionary rule holds the government accountable to victims of abuse, by removing the value that the government sought to gain by the abuse and the expense of the victim (it is imperfect, of course, in that it fails where the abuse was targeted at some use other than criminal prosecution.)
Any mechanism that fails to prevent the government from getting what it seeks by the abuse fails to hold the government accountable to the victim of the abuse.
That argument rests on the asserted non-existence of alternate mechanisms to hold the government accountable when they abuse the general public. Believe it or not letting criminals walk free is actually not the only available mechanism for addressing government abuse. It's just the mechanism our government has chosen for itself.
> In the situation where knowledge of guilt has been found by unjust means, how does ignoring that knowledge promote justice.
Because not ignoring that knowledge enables the propagating of injustice. Fighting for justice is a futile effort if delivering justice also delivers one or more instances of injustice (it is a pyrrhic victory). This idea is the root of the biblical notion of "eye for an eye" (also part of a popular quote of Ghandi).
No, this is not dichotomous-- There are at least five parties experiencing various degrees of harm: victims of crime, law enforcement, actually guilty criminals, falsely accused criminals, and the general public.
The actually hard part is divining the difference between actually guilty criminals and falsely accused criminals. That's the only valid reason for the justice system to act in this space. And that's also exactly what this extra knowledge clarifies.
We can always go full-retard with the utilitarianism. If you're going to allow injustice to happen to the few to the benefit the many, why even bother prosecute anyone for anything? Shut the farce down.
Or perhaps we could remove the bubble wrap that we allow government to hide behind and hold law enforcement directly accountable for its harm to the public and to the falsely accused. We don't have to play moral dominoes.
> We can always go full-retard with the utilitarianism. If you're going to allow injustice to happen to the few to the benefit the many, why even bother prosecute anyone for anything?
That is quite a strawman coming out of nowhere! You can use Kant's Categorical Imperative for all I care to formulate my previous comment with something like:
"It is acceptable to do an unjust action in order to determine a person's possible guilt in a suspected crime."
(And I am sure the proponents of Utilitarianism were not learning disabled).
> And that's also exactly what this extra knowledge [unjust action uncovering evidence of guilt] clarifies.
Sure, but it is also a great way to damage the general public's well-being. I'm ignoring the obvious hindsight bias that is required, though that could be a separate argument. I instead would like to point out that if there is the idea of a "second class citizen" (a non-victim) whose rights are allowed to be trumped in order to bring justice for a "first class citizen" (a victim), society as a whole will shift to be one full of victims. I don't believe such a society would be healthy and cooperative. I posit instead it would be better for a society as a whole to prevent having victims in the first place (through some sort of comprehensive set of methods, e.g.: community building, decriminalization, education, better mental health solutions, etc) while maintaining equal rights. There does not exist a perfect justice system for each individual, but having the net effect across all of society being positive is a worthy goal.
> Or perhaps we could remove the bubble wrap that we allow government to hide behind and hold law enforcement directly accountable for its harm to the public and to the falsely accused.
I disagree about the strawman. You would deny the victims concrete existing evidence of the accused's wrong doing--solely for the purpose of protecting the general public from some potential or abstract future harm. I disagree that this denial is actually necessary for preventing the potential or abstract future harm.
> You would deny the victims existing and concrete evidence of the accused's wrong
Insofar as it is for the victim (civil litigation by someone harmed by an unlawful act to seek redress) rather than the State (criminal process to impose criminal penalties pursued by and at the discretion of the executive branch of government), illegally obtained evidence is not excluded. The exclusionary rule only applies to evidence illegally obtained by the government which the government attempts to use in criminal prosecution. The victim is not involved.
The State represents the public as an abstract generality, not the individual victim. (Prosecutors like to pretend otherwise, but that's a manipulation technique, not reality.)
While I don't normally think in terms of slippery slope arguments, this would easily fall into such territory. After all how hard would it be to prosecute a cop whose illegal evidence goes a serial killer off the street? Give it a generation or two and we would end up with cops who only get convicted of the worst breaches, and effectively zero constitutional protection.
"We" don't get to go after its agents, only Prosecutors, and investigatory agencies (like the police) get to "go after" them. And if you look at the history of crimes committed by government employees you see that in almost all cases they are never prosecuted.
This is the fundamental problem with government justice-- it will never hold its own people accountable.
The few examples of this happening pale in comparison to the rampant corruption and crime going on, everything from fraudulent warrants to destroying evidence to violating peoples rights and malicious prosecution.
Look at Aaron Swartz for example.
The problem is that people are gullible enough that they think that "the law is the law" when in practice it is people that make the law more than just paper.
And the incentives for the government judiciary are to cut corners, violate rights and protect their own.
I think it depends on whether you think justice should seek truth or some sort of malleable truth theater. Causing an actual criminal go unpunished when extremely convincing evidence of guilt is known (but concealed from the jury) only further harms the victims.
Illegally-obtained evidence shouldn't be inadmissible just because it was obtained illegally, but because it is co-mingled with the motives of the official who broke the law to obtain it. You can't possibly know if the evidence is even reliable and accurate because it could just as easily be fabricated to further those illegal motives.
As a European, I get a little twitchy whenever people talk about how things are in "Europe", since it is an extremely diverse collection of countries that very little is universally true about aside from their location.
That said, I can confirm that in Sweden, any verifiable information is allowed in a trial. This fits with the idea that a trial is an attempt to find the truth.
Swedish prosecutors are also obliged to seek out and present all objective facts, including those that argues for the accused.
For an excellent review of the nature of policing and wiretaps in particular, watch the TV show The Wire. On HBO now and Amazon Prime. (and I think the best TV show ever made.)
It's fictionalized but written by an ex-cop and covers the drug trade in Baltimore.
If three armed gang members are on the run after shooting someone, and an informant names some suspects, looking up the location of the suspects' phones seems acceptable to me. I have no doubt that stingrays are abused, but this specific instance, even if not legal, is ethical.
That said, I do have issues with the OPD's incompetence and the prosecution's attempt at a cover-up. Seriously, why did the officer put himself in such a dangerous situation? Have the same prosecutors hidden evidence from the defense in the past? I'd love to get answers to those questions.
Tl;dr: The least ethical time to ignore the law is when a highly dynamic incident is underway.
> If three armed gang members are on the run after shooting someone, and an informant names some suspects, looking up the location of the suspects' phones seems acceptable to me. I have no doubt that stingrays are abused, but this specific instance, even if not legal, is ethical.
This assumes that
1. The informant is truthful and accurate
2. The informant is truthful and accurate
Laws and procedures exist so that in situations of increased emotion, there is a guard against making rash, unethical, or illegal decisions.
Eyewitnesses are generally pretty terrible at providing a true and accurate accounting of specific details in a sudden situation. For many reasons, informants can be misinformed, confused, incorrect, malicious.
And, if there's an emotional imperative to act on the part of the police, there will be an active pressure to ignore some of these concerns or some of the rigor needed to be certain they're pursuing the right suspects.
So, you have procedure, and you absolutely have to follow it because it's the one thing that's protecting you (as the officer) from making a bad decision (when the emotions are running high).
I'm aware of the inaccuracy of eyewitness testimony, but that's not relevant in this case. The tip came from a known confidential informant, not a random person. The police were going to pursue the lead, stinger or no. The stinger just made it easier for them to verify that the suspects were at their homes.
Yes, proper procedures are important. Yes, I doubt this stinger usage was legal. Yes, this was bad police work. I agree with all of those points. As I said before, the OPD was incompetent.
Now for a thought experiment: Imagine we lived in a world where police needed a warrant to dust for latent fingerprints. Such procedures would safeguard the privacy of citizens and prevent many abuses of power. Still, I think that world would be worse than this one. Such hindrances would, at the margin, make it harder to solve cases and allow more criminals to evade capture. Those costs are high enough to outweigh the privacy benefits.
Now imagine trying to convince people of the advantages of warrantless fingerprint-dusting. No matter how you frame it, everyone thinks you don't care about civil liberties. Many of them try to educate you on the importance of checks and balances in the legal system. Sounds pretty frustrating, huh?
I hope that helps you see where I'm coming from.
Edit: So far in this whole thread, not a single reply has engaged with my actual argument. (sigh) I give up. Here's another thought experiment: If the Supreme Court ruled in favor of warrantless stingrays, would you be OK with them? If not, maybe legality isn't your true reason for opposing them.
How likely is a latent to produce a false positive? What if the police burst into your house and start dusting for prints because they're "collecting evidence." They then run those prints through their database of existing prints, match you to a crime in another state for which you have an alibi, and arrest you. You're held without bail because it was a violent crime, and your presence in another state at the time of arrest marks you as a flight risk. Because the court where your trial will be held has a several month backlog, you spend several months in jail. On the first day of the trial, evidence is heard of your alibi, which exonerates you.
How would that be just for any of the parties involved?
>> Eyewitnesses are generally pretty terrible at providing a true and accurate accounting of specific details in a sudden situation. For many reasons, informants can be misinformed, confused, incorrect, malicious.
> I'm aware of the inaccuracy of eyewitness testimony, but that's not relevant in this case. The tip came from a known confidential informant, not a random person.
Many informants provide information all the time about crimes. Accuracy and reliability of informant reporting is always an issue for police. Again, that's why they have procedures dictating how they have to verify information, etc.
The article says only "confidential informant," so you may have misread and assigned more value to the informant's report than you otherwise would have, which is understandable.
> Yes, this was bad police work
The issue here isn't "bad" police work as much as it's "warrant-less search and seizure." So, possibly illegal police work. They were quite competent and use tools that haven't necessarily been outlawed yet; when courts start outlawing stingrays, then its incompetence.
> Now for a thought experiment:
If I leave evidence at the scene of a crime, it's understood to be within the law for the police to collect it and analyze it. Fingerprints, body fluids, electronic devices, all fair game. I have no reasonable expectation of privacy if I've left stuff at a crime scene.
This is not that. This is if the police didn't need a warrant to enter your house and collect fingerprint/other samples, for the purpose of determining if you may have been involved in a crime in the past. That's a violation of your right of the people to be secure in your person, houses, papers, and effects, against unreasonable searches and seizures.
In a similar way, the courts need to decide if it's also a violation when police, without a warrant, sett a wiretrap to spoof a cell phone tower with the intent of discovering a person's location or other personal information from a person's private electronic devices.
It's held to be the case that a wiretap cannot be placed without a warrant. It is reasonable to extend that logic to the automatic/unintentional/"unconscious" communication a person's cell phone does with the cellular network, to say nothing about using that stingray to capture actual explicit communications made by the person over that network.
I do get where you're coming from; I just don't agree that the argument you've laid out is sufficient to subjugate a constitutionally dictated right. It'll be interesting to see how this plays out in the federal courts and in congress.
The problem is they often verify the information with a SWAT raid on someone's home in the middle of the night. Lots of people have been shot on these kinds of raids and in many of the cases the informant's info was wrong.
There's no reason to think they're on a rampage or anything. There was no threat of a future crime. So why is it ethical to throw out all the checks and balances? There's no good moral or ethical argument I can see, you're just hand waving because you feel like they deserve to get caught.
The police department was obviously just embarrassed that service weapons had been stolen.
If there is any circumstance in which someone is likely to commit future crimes, it's probably after shooting a cop and taking their gun. At that point, the punishment is so bad that additional crimes are a rounding error. If carjacking or robbery can decrease your chances of getting caught, they're worth doing. Ditto for destroying evidence. It's fortunate that none of these things happened, but they all too easily could have.
> So why is it ethical to throw out all the checks and balances?
I never said that. I live in Oakland. I know my phone could be targeted. I'm completely in favor of checks and balances. I'm simply looking at the specifics of this case: Someone is accosted, beaten, and shot by armed gang members. An informant names some suspects. Is it ethical to look up the location of their phones? I'm pretty sure it is. If you disagree, I'd love to hear where you'd draw the line for stinger use.
> The police department was obviously just embarrassed that service weapons had been stolen.
That was a factor, but it was minor. The main reason for the OPD's ridiculous overreaction was that one of their own had been shot. That's what I wish had been the focus of this story: Poor training (and possibly corruption) causing public servants to do a bad job.
> Is it ethical to look up the location of their phones?
Sure it is. They just have to get a warrant. This is not a difficult burden in such a situation. Remember that a warrant requirement only requires probably cause, which is obvious in this case). The entire point is that the government has to make sure the justification is put on record instead of simply letting the police search whatever they want. This obviously wasn't a significant burden... as they did it just an hour earlier:
At 1:05am on January 22, roughly six hours after Karsseboom was shot,
the OPD got a search warrant for three apartments: #108, #110, and #212.
At 2:45am, the OPD faxed Metro PCS, asking the company to activate a pen
register on two target phone numbers (a 510 number and a 661 number)
citing exigent circumstances.
Exigent circumstances is about a currently-still-active situation, such as a chase or where there is imminent danger. Seeing someone waving firearm at people is "imminent danger". Theorizing about what crimes a criminal might do in the future - without any specific evidence - based only on their past crimes while the officers involved take a few hours to apply for warrants and search a few apartments is surprisingly far from "imminent".
This is terrible police work: they what should have been an easy case, but rather than simply getting a warrant and making sure the necessary evidence was handled properly, they rushed the job and ruined the evidence.
My initial read of this story is the same as yours. If accounts are to be believed, these suspects are violent and the police have legitimate reasons to be after them. Bringing this as an example does injustice to those with more legitimate concerns over police surveillance.
Then I start playing devil's advocate. They don't know this guy is a cop initially; if they did they probably would have been deterred by the risks and stiff penalties involved in harming law enforcement. They also didn't kill the cop even though they had ample opportunity to do so: they wave weapons at him, they shoot him nonfatally in the arm, they beat him up, but this may be because they saw his gun and saw him as a threat. The suspects have clearly committed crimes against the cop but it's less cut and dry whether they would have done the same had the officer done something differently.
FTA: "At times, cops have gone as far as to falsely claim the existence of a confidential informant while in fact deploying this particularly sweeping and invasive surveillance tool." The author suggests - between the lines anyway - that the authorities claim there's a CI, when really that CI is a Stingray. To apply that logic to this case, the CI "X" seems to be a convenient way to get around pesky constitutional protections and not have to mention the use of a Stingray.
Ideas and tools can be conceived, developed, deployed and adopted before a (state-sanctioned) response can be formed. Significant results (and value) can be reaped in the inherent lag between deployment/discovery and responsive-legislation.
In tech, we've seen it recently as startups deploy faster than labor laws can (re)define boundaries.
In government, when it's the police doing the rapid deployment... well, it's kind of uncharted territory.
Has anyone modeled a system of checks and balances where one of the three processes has an n month setTimeout() before it can respond to inputs from another? Where does the system find equilibrium?