We Should All Have Something To Hide(thoughtcrime.org)
thoughtcrime.org
We Should All Have Something To Hide
http://www.thoughtcrime.org/blog/we-should-all-have-something-to-hide/
15 comments
This is why there should be fewer laws, with proper penalties for those laws. Many of our laws are designed to prevent us from doing worse things.
Imagine driving on a residential street at 60 mph. That in and of itself is not a problem (other than noise), but hitting something at that speed most certainly is, especially in a neighborhood. Likewise, drunk driving is not a problem until you hit someone or crash yourself. Not coming to a complete stop at a 4-way stop sign. (all traffic examples, sorry)
Those traffic behaviors are not destructive, until something goes wrong. So if we reduce the law count but increase penalties, we're on the right track. For instance, if we really want to stop the effects of drunk driving, we have 30 days jail time for the first offense.
I think that if we had the proper (minimum) set of laws, then we should have no problem with 100% enforcement.
Now, on the issue of privacy, actually achieving 100% enforcement would be impossible without a complete surveillance state (or zero laws, but this is the trivial case).
We do have the power to change the direction of this country, and the author of the article points to gay marriage and pot use to champion this idea of liberty. But the author also points at the sheer scope of federal law as a huge problem. If the government has a problem with you, they can (probably) put you behind bars -- and this is a problem indeed.
So how should you vote? Vote for candidates who want to reduce the burden of government on the people and enhance personal freedom. I contend that gay marriage wouldn't even be an issue if the government weren't involved in marriage in the first place (and it shouldn't be). The Left loves tearing down the moral codes of previous generations, claiming bigotry, homophobia, etc., but it also loves to build up government in a huge way. The Republicans, unfortunately, have lost the way of small government, but I believe they are a better hope than the Dems, in the long run.
Imagine driving on a residential street at 60 mph. That in and of itself is not a problem (other than noise), but hitting something at that speed most certainly is, especially in a neighborhood. Likewise, drunk driving is not a problem until you hit someone or crash yourself. Not coming to a complete stop at a 4-way stop sign. (all traffic examples, sorry)
Those traffic behaviors are not destructive, until something goes wrong. So if we reduce the law count but increase penalties, we're on the right track. For instance, if we really want to stop the effects of drunk driving, we have 30 days jail time for the first offense.
I think that if we had the proper (minimum) set of laws, then we should have no problem with 100% enforcement.
Now, on the issue of privacy, actually achieving 100% enforcement would be impossible without a complete surveillance state (or zero laws, but this is the trivial case).
We do have the power to change the direction of this country, and the author of the article points to gay marriage and pot use to champion this idea of liberty. But the author also points at the sheer scope of federal law as a huge problem. If the government has a problem with you, they can (probably) put you behind bars -- and this is a problem indeed.
So how should you vote? Vote for candidates who want to reduce the burden of government on the people and enhance personal freedom. I contend that gay marriage wouldn't even be an issue if the government weren't involved in marriage in the first place (and it shouldn't be). The Left loves tearing down the moral codes of previous generations, claiming bigotry, homophobia, etc., but it also loves to build up government in a huge way. The Republicans, unfortunately, have lost the way of small government, but I believe they are a better hope than the Dems, in the long run.
Your idea simply doesn't work, because people are terrible at evaluating risk and consequences. For example, say we abolished all the traffic laws and said that drivers would be responsible for any damage they cause. You'd end up with less experienced drivers doing 80mph through a residential area, since there's no speed limit. The penalty for their poor judgement is a dead kid who happened to chase a ball. But since this "seems" like a less likely event, the driver doesn't worry, until its too late.
We experimented with lax traffic laws, and accidents were far more common per mile driven than they are today.
We experimented with lax traffic laws, and accidents were far more common per mile driven than they are today.
Actually, the current thinking and observation by some urban designers is that "naked roads" can result in safer driving habits[1][2]. The problem is one of environment, design, and policy.
"There is a clear link between people's surroundings and their behaviour. If people are in an unpleasant environment, they will behave badly." - Ben Hamilton-Baillie
Also, in Montana, for example, adding speed limits to interstates which previously had none resulted in more traffic fatalities[3]
1. http://news.bbc.co.uk/2/hi/uk_news/magazine/4213221.stm
2. http://www.salon.com/2004/05/20/traffic_design/
3. http://www.motorists.org/press/montana-no-speed-limit-safety...
"There is a clear link between people's surroundings and their behaviour. If people are in an unpleasant environment, they will behave badly." - Ben Hamilton-Baillie
Also, in Montana, for example, adding speed limits to interstates which previously had none resulted in more traffic fatalities[3]
1. http://news.bbc.co.uk/2/hi/uk_news/magazine/4213221.stm
2. http://www.salon.com/2004/05/20/traffic_design/
3. http://www.motorists.org/press/montana-no-speed-limit-safety...
There are also "traffic calming" designs (some of which incorporate naked roads concepts) which can reduce accidents.
David Snowden (I ran across his name searching for items related to another Snowden in the news) mentions in a YouTube video a roundabout in England which, despite its visually frightening appearance and apparently very high traffic densities, is one of the safest intersections in the UK.
David Snowden (I ran across his name searching for items related to another Snowden in the news) mentions in a YouTube video a roundabout in England which, despite its visually frightening appearance and apparently very high traffic densities, is one of the safest intersections in the UK.
Traffic calming can be an issue though, because it reduces traffic speeds, which can actually increase overall risk when it slows down emergency vehicles. Especially in residential areas, you can end up reducing the number of minor traffic accidents at the expense of increasing the number of non-traffic-related fatalities by increasing the emergency response time of fire trucks and ambulances.
This is a non-problem:
1) The other road users are operating at a slower speed so it is considerably easier to get out of the way.
2) emergency access is affected by the issue causing the emergency ( a crash for example )
3) normal congestion will put the effective speed lower anyhow.
4) traffic calming can actually increase the throughput of a street For example, converting a street with 2 lanes each direction to a single lane with a central left turn lane: eliminates the congestion caused by people stopping to make turns from the left lane.
1) The other road users are operating at a slower speed so it is considerably easier to get out of the way.
2) emergency access is affected by the issue causing the emergency ( a crash for example )
3) normal congestion will put the effective speed lower anyhow.
4) traffic calming can actually increase the throughput of a street For example, converting a street with 2 lanes each direction to a single lane with a central left turn lane: eliminates the congestion caused by people stopping to make turns from the left lane.
>The other road users are operating at a slower speed so it is considerably easier to get out of the way.
You're assuming the other traffic is the problem. Speed humps etc. will considerably slow down e.g. a fire truck even if there are zero other cars on the road.
>emergency access is affected by the issue causing the emergency ( a crash for example )
Again, you're assuming traffic to be the primary problem. If my house is on fire or there is some intruder then there will be negligible effect on the local traffic but structural impediments to haste will still delay the emergency response.
>normal congestion will put the effective speed lower anyhow.
Traffic again.
>traffic calming can actually increase the throughput of a street For example, converting a street with 2 lanes each direction to a single lane with a central left turn lane: eliminates the congestion caused by people stopping to make turns from the left lane.
That's not really traffic calming, or to the extent that it is, should be distinguished from what I'm complaining about, e.g. speed humps or other measures solely designed to reduce traffic speed or annoy motorists into being diverted onto other roads.
Also, the better solution in such cases is to make the road have 2 lanes in each direction and a central left turn lane.
You're assuming the other traffic is the problem. Speed humps etc. will considerably slow down e.g. a fire truck even if there are zero other cars on the road.
>emergency access is affected by the issue causing the emergency ( a crash for example )
Again, you're assuming traffic to be the primary problem. If my house is on fire or there is some intruder then there will be negligible effect on the local traffic but structural impediments to haste will still delay the emergency response.
>normal congestion will put the effective speed lower anyhow.
Traffic again.
>traffic calming can actually increase the throughput of a street For example, converting a street with 2 lanes each direction to a single lane with a central left turn lane: eliminates the congestion caused by people stopping to make turns from the left lane.
That's not really traffic calming, or to the extent that it is, should be distinguished from what I'm complaining about, e.g. speed humps or other measures solely designed to reduce traffic speed or annoy motorists into being diverted onto other roads.
Also, the better solution in such cases is to make the road have 2 lanes in each direction and a central left turn lane.
The number of people driving 80mph through a residential area each year would be about the same as it is today: approximately zero. There are far fewer psychopaths than you think, and psychopaths are largely undissuaded by laws.
You don't have to be a psychopath to be young and inexperienced, nor to want to flaunt your disregard for safety.
My larger point is that smaller laws help curb behavior that leads to larger consequences.
My larger point is that smaller laws help curb behavior that leads to larger consequences.
If you're young and inexperienced, or want to flaunt your disregard for safety, a "Speed Limit 25" sign won't dissuade you either. It might even persuade you.
One thing with the 100% enforcement principle is that the majority of the laws being overturned today are those that never should have existed in the first place, because they were legislating morals where behavior never hurt anyone else besides their "beliefs". Any behavior that doesn't cause harm to another human being (which can ethically be argued to include oneself or not, but the former makes things much more complicated) should not be illegal. Behaviors proven to cause harm to other human beings (like the drunk driving you suggest), even if unintentional, have the effect of high likelihood of harm to others, and are also valid. Criminalize and legislate away things that harm others. And you need the ability to scientifically verify direct harm or exceedingly high correlations between behavior and harm to outlaw or regulate some behavior.
That means public nudity is legal, nothing about same sex should exist, you can smoke whatever you want (unless it kills you, or permanently maims you, which is why I think self-harm being legal is acceptable, and you should only criminalize the acts of harming others) but not be mentally compromised in public, you can grow whatever you want, you can bear firearms but not take them in public (unless unloaded), you would set speed limits to the first standard deviation of the average speed of a road (ie, the bounds of safety) rather than some arbitrary unrealistic number that causes everyone to speed, etc.
I mean, hell, you could make this very simple in what is criminal:
* Do not directly endanger others excessively through reckless behavior or use of dangerous tools.
* Do not actively hurt another through physical or excessive emotional violence (the latter would have to be extended mental trauma, not just calling someone a name).
And there you go. The first needs a jury to decide if it is a true endangerment in certain conduct, the latter is pretty straightforward, and it only gets murky if you consider ones ability to self-harm being outlawed, which makes a lot of behavior illegal.
Trying to extend them to animals gets complicated, but I figure the distinction is the act of causing pain and suffering vs killing for function. IE, don't endanger or harm other animals unless for the purposes of harvesting resources from them, and only do so causing as little suffering as possible, and that you can't "harvest" an animal owned by someone else (ie, don't murder your neighbors dog saying you wanted to eat dog steaks).
That means public nudity is legal, nothing about same sex should exist, you can smoke whatever you want (unless it kills you, or permanently maims you, which is why I think self-harm being legal is acceptable, and you should only criminalize the acts of harming others) but not be mentally compromised in public, you can grow whatever you want, you can bear firearms but not take them in public (unless unloaded), you would set speed limits to the first standard deviation of the average speed of a road (ie, the bounds of safety) rather than some arbitrary unrealistic number that causes everyone to speed, etc.
I mean, hell, you could make this very simple in what is criminal:
* Do not directly endanger others excessively through reckless behavior or use of dangerous tools.
* Do not actively hurt another through physical or excessive emotional violence (the latter would have to be extended mental trauma, not just calling someone a name).
And there you go. The first needs a jury to decide if it is a true endangerment in certain conduct, the latter is pretty straightforward, and it only gets murky if you consider ones ability to self-harm being outlawed, which makes a lot of behavior illegal.
Trying to extend them to animals gets complicated, but I figure the distinction is the act of causing pain and suffering vs killing for function. IE, don't endanger or harm other animals unless for the purposes of harvesting resources from them, and only do so causing as little suffering as possible, and that you can't "harvest" an animal owned by someone else (ie, don't murder your neighbors dog saying you wanted to eat dog steaks).
You can argue "harm" about anything. Especially if you include risk of harm. Under that model it would be valid to prohibit driving at any speed, owning a steak knife, etc., because there is some risk that activity poses to others.
The fundamental problem is proportionality. And the reason it's a problem is that perfect enforcement is impossible. The actual harm posed by driving down a residential street at 60MPH is not proportional to the existing penalties (i.e. reckless driving, jail time, suspension of license). You could do it a hundred times and likely nothing bad would happen. The problem is that a) if you do it 50,000 times then likely someone will be injured, and b) you can do it a hundred times and likely not be caught by law enforcement.
So here comes the trouble. If you set the penalty equal to the risk-adjusted harm (i.e. penalty for 60MPH in a residential zone is a $25 fine) then it serves as no deterrent because you'll only be caught less than 1% of the time which makes the risk-adjusted penalty 100 times less than the risk-adjusted harm. However, if you adjust the penalty to account for the low risk of getting caught, you now have a penalty which when imposed is disproportionate to the offense by a factor of 100 or more. Which is problematic when the effectiveness of enforcement increases without adjusting the penalties. And extremely problematic when the reason for enforcement ineffectiveness is that enforcement is expensive or unpopular, meaning that someone targeted for investigation (e.g. for political reasons) could be found violating many such laws in a way that wouldn't be financially or politically viable to investigate every member of the general public, and then be subject to 100X the proportional penalties for the offense(s) because the penalties were set under a set of assumptions about the effectiveness of investigation and enforcement that are invalidated when the investment of investigative resources is politically motivated.
The fundamental problem is proportionality. And the reason it's a problem is that perfect enforcement is impossible. The actual harm posed by driving down a residential street at 60MPH is not proportional to the existing penalties (i.e. reckless driving, jail time, suspension of license). You could do it a hundred times and likely nothing bad would happen. The problem is that a) if you do it 50,000 times then likely someone will be injured, and b) you can do it a hundred times and likely not be caught by law enforcement.
So here comes the trouble. If you set the penalty equal to the risk-adjusted harm (i.e. penalty for 60MPH in a residential zone is a $25 fine) then it serves as no deterrent because you'll only be caught less than 1% of the time which makes the risk-adjusted penalty 100 times less than the risk-adjusted harm. However, if you adjust the penalty to account for the low risk of getting caught, you now have a penalty which when imposed is disproportionate to the offense by a factor of 100 or more. Which is problematic when the effectiveness of enforcement increases without adjusting the penalties. And extremely problematic when the reason for enforcement ineffectiveness is that enforcement is expensive or unpopular, meaning that someone targeted for investigation (e.g. for political reasons) could be found violating many such laws in a way that wouldn't be financially or politically viable to investigate every member of the general public, and then be subject to 100X the proportional penalties for the offense(s) because the penalties were set under a set of assumptions about the effectiveness of investigation and enforcement that are invalidated when the investment of investigative resources is politically motivated.
How would property rights fit into this? Does vandalism cause harm to people?
Well yes, you are destroying their property. You harm others by destroying their things, both physically (it consumes time to replace them, it inconveniences them if the target of vandalism, theft, or other defamation becomes unusable, etc).
It is why I brought up pets as property, to cover animal cruelty. If someone else recognizably owns something in the legal system (via valid transaction recognized as voluntary exchange on the part of both parties) than someone else misusing that possession in any ways is grounds to cause harm to the owning party, given that the violence against property was not agreed upon (ie, the owner didn't say demolish my house in a contract).
It is why I brought up pets as property, to cover animal cruelty. If someone else recognizably owns something in the legal system (via valid transaction recognized as voluntary exchange on the part of both parties) than someone else misusing that possession in any ways is grounds to cause harm to the owning party, given that the violence against property was not agreed upon (ie, the owner didn't say demolish my house in a contract).
Smoking in the presence of other people can harm them
And it's illegal to smoke outside of designated areas.
Where is the scientific evidence that bearing a loaded firearm in public harms other people?
You would need to do a long run study on the subject to verify it is the case, but from my intuition and the number of gun misfire cases I hear about, it would probably mathematically prove to have a recognizable increase in the rate of injury due to the firearm in public if it is loaded.
That´s the worst angle to look at this issue, though. It´s the way a white boy from a 1st world country would look at it.
Having many laws and inneficient law enforcement is the recipe for disaster. You just get corruption and lack of isonomy (poor people get jail, rich people get a bail for stupid crimes). Come to Brazil and marvel at the result of your theory. Police is inefficient, rich people get away from murder, and when they catch a poor criminal they execute for banal crimes (e.g., drug posession) with the understanding the judiciary doesn´t work.
What you want is less bogus laws around individual liberties rather than less law enforcement.
Having many laws and inneficient law enforcement is the recipe for disaster. You just get corruption and lack of isonomy (poor people get jail, rich people get a bail for stupid crimes). Come to Brazil and marvel at the result of your theory. Police is inefficient, rich people get away from murder, and when they catch a poor criminal they execute for banal crimes (e.g., drug posession) with the understanding the judiciary doesn´t work.
What you want is less bogus laws around individual liberties rather than less law enforcement.
This is exactly the scenario I was trying to describe. In a world where we're all technically violating the law at some point, and where we're all being monitored intensively, then it's essentially up to those in power to "decide" who is punished and who isn't, without any real standard of measure. In that world, it seems pretty clear who ends up in jail and who doesn't. ACAB.
Conversely, if we lived in the same world of intensive surveillance, but where law enforcement was instead 100% efficient, we wouldn't have the often valuable ability to break the law.
It's possible to say that we should have better laws, or different laws, or only the "right" laws. But we don't actually have any agency over that (or to the extent that we do, it's often a result of breaking those laws). What we do have some agency over is the internet, and the technical means to stymie surveillance.
Conversely, if we lived in the same world of intensive surveillance, but where law enforcement was instead 100% efficient, we wouldn't have the often valuable ability to break the law.
It's possible to say that we should have better laws, or different laws, or only the "right" laws. But we don't actually have any agency over that (or to the extent that we do, it's often a result of breaking those laws). What we do have some agency over is the internet, and the technical means to stymie surveillance.
> Conversely, if we lived in the same world of intensive surveillance, but where law enforcement was instead 100% efficient, we wouldn't have the often valuable ability to break the law.
You can break the law. You just can't avoid punishment. Difference is subtle, but important.
My country lived 20 years in a dictatorship but the people breaking the law (including intellectuals/communists from middle class), for good or for worse, were the ones that forced a change back into democracy. Now the president is an "ex-terrorist", and we have superfluous legislation and bad law enforcement because the ones now in power abhor it. The result is corruption and crime.
This is just arguing two sides of the same crap (paternal, surveillance state in one side; granny, lenient state in the other) without changing the rules of the game (e.g., less state).
You can break the law. You just can't avoid punishment. Difference is subtle, but important.
My country lived 20 years in a dictatorship but the people breaking the law (including intellectuals/communists from middle class), for good or for worse, were the ones that forced a change back into democracy. Now the president is an "ex-terrorist", and we have superfluous legislation and bad law enforcement because the ones now in power abhor it. The result is corruption and crime.
This is just arguing two sides of the same crap (paternal, surveillance state in one side; granny, lenient state in the other) without changing the rules of the game (e.g., less state).
>You can break the law. You just can't avoid punishment. Difference is subtle, but important.
Yes and no. If you can break the law and the penalty is tolerable then you can get the same result as if enforcement is less than completely effective: People break the law and just take their lumps.
The trouble is that when a movement is only just getting started and doesn't yet have popular support, the first thing the government will try to do in the face of people taking their lumps is to ratchet up the penalties to try to deter them. And then, against perfect enforcement, the number of people willing to break the law falls off a cliff because it isn't worth spending decades in prison for the vast majority of would-be supporters -- or if it is then all the supporters end up imprisoned indefinitely or executed and the movement fails.
Yes and no. If you can break the law and the penalty is tolerable then you can get the same result as if enforcement is less than completely effective: People break the law and just take their lumps.
The trouble is that when a movement is only just getting started and doesn't yet have popular support, the first thing the government will try to do in the face of people taking their lumps is to ratchet up the penalties to try to deter them. And then, against perfect enforcement, the number of people willing to break the law falls off a cliff because it isn't worth spending decades in prison for the vast majority of would-be supporters -- or if it is then all the supporters end up imprisoned indefinitely or executed and the movement fails.
It is a terrible way to look at it, even if you're white, because you can always be the wrong kind of white person.
Where I grew up, kids on the hockey team, or whose dad owned the car dealership, would repeatedly get away with drunk driving and beating up their girlfriends, whereas poor kids were regularly taken down to the station for skateboarding, even though there were no laws against it.
Where I grew up, kids on the hockey team, or whose dad owned the car dealership, would repeatedly get away with drunk driving and beating up their girlfriends, whereas poor kids were regularly taken down to the station for skateboarding, even though there were no laws against it.
I'm not an American, and my country is, especially now, poorer than the parent's (he said Brasil, IIRC).
Nothing about some "white boy perspective" to what I said.
That's based on a misunderstanding about what I meant by saying the police should not be totally efficient.
Less efficient != discrimination.
Less efficient != corruption.
It's not a two way association. One could say that a "corrupt police" is "less efficient" but the inverse is not true.
If anything, with it being less efficient, in the way I describe, FEWER poor, black, "wrong kind of white" etc people will actually get caught.
Nothing about some "white boy perspective" to what I said.
That's based on a misunderstanding about what I meant by saying the police should not be totally efficient.
Less efficient != discrimination.
Less efficient != corruption.
It's not a two way association. One could say that a "corrupt police" is "less efficient" but the inverse is not true.
If anything, with it being less efficient, in the way I describe, FEWER poor, black, "wrong kind of white" etc people will actually get caught.
That's like saying two wrongs make a right.
I agree with cold tea actually, at least to a point.
Robust liberties and clear restraints on law enforcement powers at the expense of law enforcement efficiency are a cornerstone of liberty and have been everywhere and throughout history.
The reason why it is only to a point though is that less efficient police driven to maintain quotas will typically focus on the poor who are less able to defend themselves. Most of the data i have seen suggests that there are not major class differences in drug use in the US, but there are huge class differences in enforcement because buying habits are different and so it takes more police work to bust the middle class than it does the poor.
I think that this is one of those cases where we have a perpetual social problem which cannot be remedied by automating the system.
Robust liberties and clear restraints on law enforcement powers at the expense of law enforcement efficiency are a cornerstone of liberty and have been everywhere and throughout history.
The reason why it is only to a point though is that less efficient police driven to maintain quotas will typically focus on the poor who are less able to defend themselves. Most of the data i have seen suggests that there are not major class differences in drug use in the US, but there are huge class differences in enforcement because buying habits are different and so it takes more police work to bust the middle class than it does the poor.
I think that this is one of those cases where we have a perpetual social problem which cannot be remedied by automating the system.
Which they often do, hence the proverb.
They don't, and it's logical fallacy to boot.
The actual proverb is "two wrongs don't make a right".
The actual proverb is "two wrongs don't make a right".
Yep, I think you get the idea about "white boy from 1st world" though... Someone from a "higher caste", with more influence in the society or who can afford lawyers.
>Having many laws and inneficient law enforcement is the recipe for disaster. You just get corruption and lack of isonomy (poor people get jail, rich people get a bail for stupid crimes). Come to Brazil and marvel at the result of your theory.
Those are not the results of "my theory". Heck that's not my theory either!
First, who said anything about "many laws"? I'm also against having too many laws.
Second, inefficiency != lack of isonomy. Or rather, it can lead to random lack of isonomy (ie. whether rich or poor, colored or not) -- which is not the same as the situation you describe, which is about inequality of law enforcement between rich and poor.
For example, if the police cannot demand a drug testing, then neither rich nor poor can be found with 100% certainty after having taken some. If the police cannot demand your ISP records, then they have a harder time enforcing 100% crackdown on piracy, whether you are rich or poor etc etc.
I was talking about "less efficiency", in the sense of being against giving those kind of "enablers" (which make 100% enforcement a closer possibility) to the police.
Not in favour of discriminating between rich and poor.
>What you want is less bogus laws around individual liberties rather than less law enforcement.
That's good too, but my point was another. That even for good laws, total enforcement of them would make a nightmarish situation. A couple of examples:
1) I wouldn't want everybody to have free reign to spray paint anything they wish. But I'd like for people determined and willing to express something to be able to do it, even if it means I also have to stand some people that just spray BS tags.
2) I wouldn't want all people to go 150 miles on the highway whenever they like. But if the road is empty, it's straight for miles, and you have a nice car, I wouldn't like people to not be able to step on it for some innocent fun.
In this case, fines and speed cops are OK. But not devices like "compulsory speed control" on all cars, or "total speed radar tracking" on all roads, which would enable something like 100% enforcement of the speed limit.
So, when I talk about less "efficiency", I mean not enabling the police to the point of it being a total control state for every aspect of people's lives.
A lot of the times, some of the improvements to society, art, morals, etc, come by breaking the law. Rosa Parks, IIRC, broke the law that day, too.
Those are not the results of "my theory". Heck that's not my theory either!
First, who said anything about "many laws"? I'm also against having too many laws.
Second, inefficiency != lack of isonomy. Or rather, it can lead to random lack of isonomy (ie. whether rich or poor, colored or not) -- which is not the same as the situation you describe, which is about inequality of law enforcement between rich and poor.
For example, if the police cannot demand a drug testing, then neither rich nor poor can be found with 100% certainty after having taken some. If the police cannot demand your ISP records, then they have a harder time enforcing 100% crackdown on piracy, whether you are rich or poor etc etc.
I was talking about "less efficiency", in the sense of being against giving those kind of "enablers" (which make 100% enforcement a closer possibility) to the police.
Not in favour of discriminating between rich and poor.
>What you want is less bogus laws around individual liberties rather than less law enforcement.
That's good too, but my point was another. That even for good laws, total enforcement of them would make a nightmarish situation. A couple of examples:
1) I wouldn't want everybody to have free reign to spray paint anything they wish. But I'd like for people determined and willing to express something to be able to do it, even if it means I also have to stand some people that just spray BS tags.
2) I wouldn't want all people to go 150 miles on the highway whenever they like. But if the road is empty, it's straight for miles, and you have a nice car, I wouldn't like people to not be able to step on it for some innocent fun.
In this case, fines and speed cops are OK. But not devices like "compulsory speed control" on all cars, or "total speed radar tracking" on all roads, which would enable something like 100% enforcement of the speed limit.
So, when I talk about less "efficiency", I mean not enabling the police to the point of it being a total control state for every aspect of people's lives.
A lot of the times, some of the improvements to society, art, morals, etc, come by breaking the law. Rosa Parks, IIRC, broke the law that day, too.
Your speeding example is a great example on why being able to get away from infraction isn't the holy grail.
Automatic fines reinforces isonomy (everybody is fined equally), and that's a good thing. If some people can game the system, regulation is useless (traffic turns into survival of the fittest, it's game theory).
If someone feels like speeding for civil disobedience, they still can, the state is not making it impossible to (it would if cars couldn't go over limit, for technical reasons). So one can break the law, but face the consequence as everybody else, and argue on the legal system wether this is fair or not. That's what judges and public opinion are for.
When enough people break the law, either the legislation changes or the people change the legislators. But you need penalties being applied to cause pressure for change, otherwise you only get inertia in the legislative.
Automatic fines reinforces isonomy (everybody is fined equally), and that's a good thing. If some people can game the system, regulation is useless (traffic turns into survival of the fittest, it's game theory).
If someone feels like speeding for civil disobedience, they still can, the state is not making it impossible to (it would if cars couldn't go over limit, for technical reasons). So one can break the law, but face the consequence as everybody else, and argue on the legal system wether this is fair or not. That's what judges and public opinion are for.
When enough people break the law, either the legislation changes or the people change the legislators. But you need penalties being applied to cause pressure for change, otherwise you only get inertia in the legislative.
I actually think that fewer laws and more limits on law enforcement practices is the way to go. I am not that thrilled about isonomy because I think that history shows that isonomy never really is implemented and in fact merely shifts power towards those deciding how the laws are to be enforced.
Look for example at our experience in the US with mandatory sentencing guidelines. This was done to take away leeway in sentencing from judges and in the name of isonomy.
What happened however was different. The problem is that not all cases of a crime are created equal and so instead of judges having sentencing discretion, that was put in the hands of the prosecutor (who would then decide when to prosecute a lesser included offence).
The result is quite striking when you look at drug prosecutions today. It's not law enforcement that makes the difference but prosecutorial discretion. The problem is that human life does not really admit of a situation where a purely mechanical view of justice actually does justice. Total isonomy would not be a justice system but merely one which distributes injustice equally and blindly.
I don't there is a way around this, and I think further we are better just openly admitting that isonomy is neither attainable nor desirable, but instead work to ensure that we really try to ensure real justice and hold people accountable, from the grass roots, for their decisions.
Look for example at our experience in the US with mandatory sentencing guidelines. This was done to take away leeway in sentencing from judges and in the name of isonomy.
What happened however was different. The problem is that not all cases of a crime are created equal and so instead of judges having sentencing discretion, that was put in the hands of the prosecutor (who would then decide when to prosecute a lesser included offence).
The result is quite striking when you look at drug prosecutions today. It's not law enforcement that makes the difference but prosecutorial discretion. The problem is that human life does not really admit of a situation where a purely mechanical view of justice actually does justice. Total isonomy would not be a justice system but merely one which distributes injustice equally and blindly.
I don't there is a way around this, and I think further we are better just openly admitting that isonomy is neither attainable nor desirable, but instead work to ensure that we really try to ensure real justice and hold people accountable, from the grass roots, for their decisions.
I feel kind of divided on this... I mostly agree, but we also need to think about the consequences of selective enforcement. Cannabis-related arrests, for example, seem to be disproportionately focused on people of color, which may have softened the perceived damage of cannabis prohibition among whites. In other words: we can get away with it, so it's not really a big deal that it's still illegal.
Again, I'm not saying I want a 100% effective police state, but these are problems we have to grapple with. The salience of an issue will often depend on how much it affects you personally. Selective enforcement may diminish the motivation to protest unfair laws within populations that tend to escape said enforcement. In fact, most of the things you mentioned probably shouldn't be crimes to begin with, but I bet many people don't feel strongly enough to protest them because they assume most people can break those laws without punishment. Some people aren't so lucky though.
Again, I'm not saying I want a 100% effective police state, but these are problems we have to grapple with. The salience of an issue will often depend on how much it affects you personally. Selective enforcement may diminish the motivation to protest unfair laws within populations that tend to escape said enforcement. In fact, most of the things you mentioned probably shouldn't be crimes to begin with, but I bet many people don't feel strongly enough to protest them because they assume most people can break those laws without punishment. Some people aren't so lucky though.
>I feel kind of divided on this... I mostly agree, but we also need to think about the consequences of selective enforcement.
Oh, I agree. I wasn't advocating selective enforcement. Just less EFFICIENT enforcement.
That is, that the police/government should not be allowed the means (even if they were available) to suppress crime 100% or even 90%.
Even for crimes we all agree are abhorable, like murder. I wouldn't trade freedom and privacy etc to have some way to prevent murders (from current surveillance to some futuristic chip implant in your head to prevent you from committing it). I'd rather live with some potential danger, than with several leashes.
Oh, I agree. I wasn't advocating selective enforcement. Just less EFFICIENT enforcement.
That is, that the police/government should not be allowed the means (even if they were available) to suppress crime 100% or even 90%.
Even for crimes we all agree are abhorable, like murder. I wouldn't trade freedom and privacy etc to have some way to prevent murders (from current surveillance to some futuristic chip implant in your head to prevent you from committing it). I'd rather live with some potential danger, than with several leashes.
Of course... I understand that your comment wasn't advocating that we only arrest poor people, etc. I'm just curious about a hypothetical: if we DID live in a dystopia where nobody could get away with anything, would this perhaps lead to more civic engagement in protesting unjust laws?
Laws that are easy to break are easy to ignore. But these laws can still be used by a government entity as a legal weapon against you, and that seems a bit scary.
Laws that are easy to break are easy to ignore. But these laws can still be used by a government entity as a legal weapon against you, and that seems a bit scary.
>if we DID live in a dystopia where nobody could get away with anything, would this perhaps lead to more civic engagement in protesting unjust laws?
Perhaps. But it could also be the other way: that in such a dystopia, protesting and civic engagement would also be more difficult if not impossible.
E.g anything beyond voting between a couple of candidates you are given. A dystopia that would enable the police like that, will in all probability also have laws prohibiting public assembly, rallying, etc.
And on top of that, they could also enforce any BS laws to dissidents -- since, with 100% efficiency, they could always find something to pin on them.
Perhaps. But it could also be the other way: that in such a dystopia, protesting and civic engagement would also be more difficult if not impossible.
E.g anything beyond voting between a couple of candidates you are given. A dystopia that would enable the police like that, will in all probability also have laws prohibiting public assembly, rallying, etc.
And on top of that, they could also enforce any BS laws to dissidents -- since, with 100% efficiency, they could always find something to pin on them.
> some futuristic chip implant in your head to prevent you from committing it
Just curious, are you thinking of The Alliance?
Just curious, are you thinking of The Alliance?
In fact I believe laws should be designed to require selective enforcement. It's the only way to make the laws as simple and concise as they need to be.
Snowden is a great example of this. He demonstrably has broken the law, the law itself has a valid purpose.
Without selective enforcement he is in for a heap of shit because how do you design a law ahead-of-time that accounts for every possible nuance of how the greater public good might outweigh the risk to national security of analysts routinely disclosing classified information? We here on HN can't even design websites and programs that are secure and the computers do exactly what we tell them do, the legal code has to deal both with human agents who screw up and smart individuals looking for loopholes.
But with selective enforcement we can keep the law simple: "Don't leak classified information", and then allow for public outcry (or common sense) to prosecutors or the POTUS to ensure that he's either not tried, or even has an eventual sentence reduced or commuted.
Even now we live in a country where the police routinely don't 100% enforce the law even without invasive oversight, so it's obvious that merely having the police know about lawbreaking alone doesn't inevitably lead to trouble; oftentimes they care even less than the public does as it results in more paperwork for them.
Snowden is a great example of this. He demonstrably has broken the law, the law itself has a valid purpose.
Without selective enforcement he is in for a heap of shit because how do you design a law ahead-of-time that accounts for every possible nuance of how the greater public good might outweigh the risk to national security of analysts routinely disclosing classified information? We here on HN can't even design websites and programs that are secure and the computers do exactly what we tell them do, the legal code has to deal both with human agents who screw up and smart individuals looking for loopholes.
But with selective enforcement we can keep the law simple: "Don't leak classified information", and then allow for public outcry (or common sense) to prosecutors or the POTUS to ensure that he's either not tried, or even has an eventual sentence reduced or commuted.
Even now we live in a country where the police routinely don't 100% enforce the law even without invasive oversight, so it's obvious that merely having the police know about lawbreaking alone doesn't inevitably lead to trouble; oftentimes they care even less than the public does as it results in more paperwork for them.
Aristotle advised that laws should cover the general case and judges the particular. Hence the saying, "Hard cases make bad law." There is always a need to interpret. So the computerization of guilt or even "fishing" is very scary. Privacy is a buffer that helps build "selective enforcement" into any law that gets made.
We know that in the civil sphere getting sued is so bad it often doesn't matter whether you win or lose: the mere threat is enough to compel or punish. Likewise in the criminal sphere, people often settle rather than fight, which would mean bankruptcy and the risk of worse jail time. Now imagine in the criminal sphere if a computer could look at everything you wrote and raise a flag every time something looked suspicious. It's important to have a buffer, some kind of resistance that must be overcome before subjecting people to that. Hence the Fourth Amendment.
We know that in the civil sphere getting sued is so bad it often doesn't matter whether you win or lose: the mere threat is enough to compel or punish. Likewise in the criminal sphere, people often settle rather than fight, which would mean bankruptcy and the risk of worse jail time. Now imagine in the criminal sphere if a computer could look at everything you wrote and raise a flag every time something looked suspicious. It's important to have a buffer, some kind of resistance that must be overcome before subjecting people to that. Hence the Fourth Amendment.
The term "selective enforcement" seems to imply that laws are enforced at the whim of the enforcers, which strikes me as an undesirable property of a legal system. It seems to me that selective enforcement, if present at all, should work the other way around: occasionally choosing to acquit, rather than occasionally choosing to enforce.
"Act as if the maxim of thy action were to become by thy will a universal law of nature. So act that your principle of action might safely be made a law for the whole world." (https://en.wikiquote.org/wiki/Immanuel_Kant#Groundwork_of_th...)
"Act as if the maxim of thy action were to become by thy will a universal law of nature. So act that your principle of action might safely be made a law for the whole world." (https://en.wikiquote.org/wiki/Immanuel_Kant#Groundwork_of_th...)
> It seems to me that selective enforcement, if present at all, should work the other way around: occasionally choosing to acquit, rather than occasionally choosing to enforce
Do you mean going through the trial and then occasionally choosing to impose a null sentence, as opposed to skipping the trial altogether?
Otherwise I'm not sure how what you propose is different, given that there are so many levels of enforcement within a legal system.
The military is in fact struggling with that issue right now, with debates on sexual harassment in the military taking up a lot of time in the House and Senate. And in fact it seems that Congress will probably remove the ability of the court-martial convening authority to acquit someone at all, due to abuses of that power. So there is no panacea.
Much as your quote seems to imply, there is really only the consideration of what scheme would work best overall. And right now selective acquittal (as opposed to selective enforcement) is destroying the credibility of the military on sexual harrassment issues.
Do you mean going through the trial and then occasionally choosing to impose a null sentence, as opposed to skipping the trial altogether?
Otherwise I'm not sure how what you propose is different, given that there are so many levels of enforcement within a legal system.
The military is in fact struggling with that issue right now, with debates on sexual harassment in the military taking up a lot of time in the House and Senate. And in fact it seems that Congress will probably remove the ability of the court-martial convening authority to acquit someone at all, due to abuses of that power. So there is no panacea.
Much as your quote seems to imply, there is really only the consideration of what scheme would work best overall. And right now selective acquittal (as opposed to selective enforcement) is destroying the credibility of the military on sexual harrassment issues.
As soon as you go that route though you have to admit that the purpose of the law is to punish people for the crime of being infamous and nothing else really matters.
Maybe that is a tradeoff we should make. I am not yet convinced. My concern is that as soon as you say "let's make this flexible" you ensure that we can find something to charge people with if we want.
Maybe that is a tradeoff we should make. I am not yet convinced. My concern is that as soon as you say "let's make this flexible" you ensure that we can find something to charge people with if we want.
The famous and rich have managed to get out of laws that were clearly and explicitly applicable to them.
The problem is not the law itself in those cases, it is the people enforcing the law. If your cops and judges can be bribed then no law or defense is ironclad, "selective enforcement" or not.
The problem is not the law itself in those cases, it is the people enforcing the law. If your cops and judges can be bribed then no law or defense is ironclad, "selective enforcement" or not.
However, being infamous is not sufficient to be criminal.
The Chinese experimented with strict enforcement in the Qin Dynasty, following the philosophy of Han Feizi (Legalism). It sounds like it was a big failure. I'm sure there have been other such experiments. The Law is not a computer program.
The Law is full of legacy cruft, and is based on philosophies that largely predate empiricism. Has there ever been an attempt to design a legal system based on modern engineering principles? Laws are as much about systems as about people. When you want to understand people you might rely on a politician, but to understand systems you should rely on engineers.
The engineers that designed the RBMK reactor used for Chernobyl, the ones that designed the USS Thresher which was crushed with all hands after a combined failure of its emergency ballast tank blow and steam propulsion system, or the ones who designed the space shuttles Challenger and Columbia?
This is not to say that we can't improve the legal system. But if engineering has taught me anything, it's that it will always be prudent to design a relief/safety valve into the system.
This is not to say that we can't improve the legal system. But if engineering has taught me anything, it's that it will always be prudent to design a relief/safety valve into the system.
Chernobyl, Challenger, and Columbia are examples of systems where engineers were constrained by politicians.
I hadn't heard of the USS Thresher before today, but I did just read a bit of the Wikipedia article.
When a disaster occurs in engineering, the lessons learned are applied to the next design. When a disaster occurs in politics, the other party gets its turn to cause the next disaster.
I hadn't heard of the USS Thresher before today, but I did just read a bit of the Wikipedia article.
When a disaster occurs in engineering, the lessons learned are applied to the next design. When a disaster occurs in politics, the other party gets its turn to cause the next disaster.
Engineering isn't engineering without constraints... it's just spending an unbounded amount of time and money on a thing ( or science, in some terms). Engineers are obligated to not work on a project which cannot be safely completed within guidelines. You can't push off that obligation elsewhere: if you design a building, and that building falls over, you need to justify why. You can't say they asked you to make it cheaper; you either find a way to make it safe and cheaper, or you don't do it.
This isn't to say that nobody makes mistakes, but it's worth remembering that engineering is applied science. It's not practiced in a vacuum, it takes into account economic and political influences and balances them against public well being. The buck stops with engineers.
This isn't to say that nobody makes mistakes, but it's worth remembering that engineering is applied science. It's not practiced in a vacuum, it takes into account economic and political influences and balances them against public well being. The buck stops with engineers.
Of course everything has constraints, and a social system will have political constrains.
Yet, those systems had "accidents" only after politicians overrided the engineers and acted against their recommendation. Using them as evidence that engineers create systems that are as flawed as the ones created by politicians is wrong.
Anyway, it seems that we still can't engineer social systems. It may be either because the political interference inherent on it makes it impossible, or because we just don't have the right technology... Or maybe we can, and PRISM is the kind of tool that makes it possible. Engineers create all kinds of systems, for all kinds of reasons, well intented or not.
Yet, those systems had "accidents" only after politicians overrided the engineers and acted against their recommendation. Using them as evidence that engineers create systems that are as flawed as the ones created by politicians is wrong.
Anyway, it seems that we still can't engineer social systems. It may be either because the political interference inherent on it makes it impossible, or because we just don't have the right technology... Or maybe we can, and PRISM is the kind of tool that makes it possible. Engineers create all kinds of systems, for all kinds of reasons, well intented or not.
My point is that engineers have no recourse to complaining about being 'overridden'. Politicians don't act; they don't build space shuttles, they don't design nuclear reactors. They give a high level set of orders which engineers either fulfill safely, or not at all. As an example:
In the case of Chernobyl, the problem was actually inexperienced plant operators running an experiment about disaster recovery on a reactor with a positive void coefficient and poorly designed control rods. The positive void coefficient was a limitation of our nuclear design capabilities at the time, the control rods were just poorly designed by some engineer. Either of those factors could have prevented the disaster, and neither of them can be attributed to any politician.
In the case of Chernobyl, the problem was actually inexperienced plant operators running an experiment about disaster recovery on a reactor with a positive void coefficient and poorly designed control rods. The positive void coefficient was a limitation of our nuclear design capabilities at the time, the control rods were just poorly designed by some engineer. Either of those factors could have prevented the disaster, and neither of them can be attributed to any politician.
>When a disaster occurs in engineering, the lessons learned are applied to the next design.
And how does that work for software engineering thus far?
What we know of it, is that errors tend to repeat themselves, and little is learned from design to design, especially across projects and teams.
Software engineering is much more like law than civic engineering.
So, it's quite invalid to compare law (which deals with people, perceptions, norms, ever shifting societies and situations, intentions and other delicate situations) with some well known ways to build things with very tangible, hard physical constrains and behavior.
And how does that work for software engineering thus far?
What we know of it, is that errors tend to repeat themselves, and little is learned from design to design, especially across projects and teams.
Software engineering is much more like law than civic engineering.
So, it's quite invalid to compare law (which deals with people, perceptions, norms, ever shifting societies and situations, intentions and other delicate situations) with some well known ways to build things with very tangible, hard physical constrains and behavior.
And how does that work for software engineering thus far?
Quite well, in the long run. Ten years ago we had mountains of buffer overflow-ridden web software written in C++ being replaced by SQL-injection-vulnerable Perl and PHP. Twenty-five years ago the Morris worm easily found its way onto thousands of systems.
Now, tools like Valgrind help detect buffer overflows and other memory access problems, ORMs help prevent SQL injection, stringent standards are used for development of safety-critical systems (e.g. MISRA-C), and automated testing is much more widespread. Naive software developers still make naive mistakes, but as a whole, the industry is much better protected against known mistakes.
Quite well, in the long run. Ten years ago we had mountains of buffer overflow-ridden web software written in C++ being replaced by SQL-injection-vulnerable Perl and PHP. Twenty-five years ago the Morris worm easily found its way onto thousands of systems.
Now, tools like Valgrind help detect buffer overflows and other memory access problems, ORMs help prevent SQL injection, stringent standards are used for development of safety-critical systems (e.g. MISRA-C), and automated testing is much more widespread. Naive software developers still make naive mistakes, but as a whole, the industry is much better protected against known mistakes.
This. I've been thinking a lot about this (not particularly hard, admittedly) lately. I suppose the main problem would be that those in power, i.e. politicians, will mostly be out of a job once such a task were to be undertaken.
>no child that wants to be a graphic designer could ever pirate Photoshop
More Gimp users? ;)
But on a serious note, I completely agree with you. Perfect, law-following society will not have any social progress.
Laws are not perfect, and they will never be. But some people often treat them like they are. They prefer following laws instead of using their brain to decide what's wrong and what's right, and it's really dangerous to society.
Laws are based on morals, and what people think is right thing to do, not the other way around.
This sounds extremely common sense, but I've met too many people who do not seem to understand this.
More Gimp users? ;)
But on a serious note, I completely agree with you. Perfect, law-following society will not have any social progress.
Laws are not perfect, and they will never be. But some people often treat them like they are. They prefer following laws instead of using their brain to decide what's wrong and what's right, and it's really dangerous to society.
Laws are based on morals, and what people think is right thing to do, not the other way around.
This sounds extremely common sense, but I've met too many people who do not seem to understand this.
I get the point he is trying to make, but my problem with this
argument is that it seems to be based on an idea that the default is
that a thing is illegal until a law explicitly allows it, which is
contrary to the way I've always understood things to be.
In other words, in some (perhaps distant) past, marijuana was not illegal until a legislator decided to pass a law prohibiting its use.
In other words, in some (perhaps distant) past, marijuana was not illegal until a legislator decided to pass a law prohibiting its use.
“I now have absolute proof that smoking even one marijuana cigarette is equal in brain damage to being on Bikini Island during an H-bomb blast.”
- Ronald Reagan
Marijuana prohibition was pushed by Reagan because he didn´t liked hippies, not based on anything palpable.
Problem is not law enforcement, it´s the way bogus legislation gets pushed on "democracy" without direct involvement of the people.
Marijuana prohibition was pushed by Reagan because he didn´t liked hippies, not based on anything palpable.
Problem is not law enforcement, it´s the way bogus legislation gets pushed on "democracy" without direct involvement of the people.
it seems to be based on an idea that the default is that a thing is illegal until a law explicitly allows it.
I didn't get that idea at all, and I think you are misreading it. Many examples are given of things that recently were or still are explicitly illegal.
If you want to read up on when Marijuana was made illegal, you can start here http://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_th... but I'm not sure of the relevance.
I didn't get that idea at all, and I think you are misreading it. Many examples are given of things that recently were or still are explicitly illegal.
If you want to read up on when Marijuana was made illegal, you can start here http://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_th... but I'm not sure of the relevance.
[deleted](1)
This ties into what Nassim Taleb says about fragility and "antifragility" -- a society that allows certain transgressions (to a degree) can be more robust and healthier. Arguably, we have that now. For example, selective enforcement of the law when celebrities and rich, influential people commit certain offenses.
Insignificant example but very annoying to me nonetheless: my last two times using PayByPhone for parking in San Francisco ended up with two tickets, one timed 1 minute following expiration and the other, 2 minutes. I can only suspect that usage of PayByPhone is placing a big fat bullseye on your car for ticketing.
> [...] teenagers could never drink a beer, [...]
Or you could just have decent laws. Most European states get the alcohol laws mostly right.
Or you could just have decent laws. Most European states get the alcohol laws mostly right.
Obviously this is a strawman. Even North Korea does not have 100% compliance.
No, it's a thought experiment.
If you haven't seen the video Moxie mentions in the opening couple paragraphs, "don't talk to the police," I HIGHLY recommend watching it.
Not only is it informative, it is fascinating and very well delivered.
http://www.youtube.com/watch?v=6wXkI4t7nuc
Not only is it informative, it is fascinating and very well delivered.
http://www.youtube.com/watch?v=6wXkI4t7nuc
The lawyer only ever saw cases that got to the point of needing a lawyer. Police exercise discretion as part of their job and I have trouble believing that silence (and the suspicion it creates) always pays off.
Example: the neighbors see/hear you having rough sex with your wife and report it as abuse. The police knock on the door, you have two options:
A) Explain (better: let your wife explain) that the neighbors probably heard you playing around and promise to be more discreet in the future. The police agree that more discretion = better and leave.
B) Wall of silence. The police take you in just to be sure. Your wife tries to testify in your favor at the trial but everyone thinks she's just making excuses for an actually abusive boyfriend (because that happens). Your life is ruined by the conviction, maybe her life is too. Even if you don't get convicted, rumors will spread and your time and money will be wasted on legal matters.
Am I being naive or was the lawyer overstating his argument? Strategy A is strictly worse than B if the case goes to court, but that still means that B could be the better strategy before you've been arrested.
Example: the neighbors see/hear you having rough sex with your wife and report it as abuse. The police knock on the door, you have two options:
A) Explain (better: let your wife explain) that the neighbors probably heard you playing around and promise to be more discreet in the future. The police agree that more discretion = better and leave.
B) Wall of silence. The police take you in just to be sure. Your wife tries to testify in your favor at the trial but everyone thinks she's just making excuses for an actually abusive boyfriend (because that happens). Your life is ruined by the conviction, maybe her life is too. Even if you don't get convicted, rumors will spread and your time and money will be wasted on legal matters.
Am I being naive or was the lawyer overstating his argument? Strategy A is strictly worse than B if the case goes to court, but that still means that B could be the better strategy before you've been arrested.
> Your wife tries to testify in your favor at the trial...
Why would she do that? The only way you've gotten this far is because she's pressing charges.
Why would she do that? The only way you've gotten this far is because she's pressing charges.
No, the AG is pressing charges, ostensibly on her behalf, because everyone thinks she was in denial about the abuse. Alternatively, even if everyone agrees she consented, consent isn't a legally recognized defense to all forms of battery and you also have to consider sodomy laws: in the hands of a conservative judge/jury, what you were doing actually was illegal, even though you were consenting adults and nobody got (permanently) hurt, which is the standard most "reasonable" people go by nowadays.
IANAL and the little I know about the intersection of kinky sex and law comes from a single presentation I attended years ago during college. Please correct me if I'm wrong, but I'm fairly certain I have the broad strokes drawn correctly.
IANAL and the little I know about the intersection of kinky sex and law comes from a single presentation I attended years ago during college. Please correct me if I'm wrong, but I'm fairly certain I have the broad strokes drawn correctly.
As someone active in the kink scene, the current legal situation seems to be:
Sadomasochism is probably illegal in most states, but no prosecutor seems eager for the shitshow that would happen if they tried to prosecute something that was clearly consensual.
Sadomasochism is probably illegal in most states, but no prosecutor seems eager for the shitshow that would happen if they tried to prosecute something that was clearly consensual.
Chalk another point up for 'selective enforcement'? :P
Ok...I was generalizing from a friend's somewhat related experience. He was asked and chose not to press assault charges in MA and that was the end of it.
On second look, it seems that the state has a lot of discretion in these cases.
On second look, it seems that the state has a lot of discretion in these cases.
IANAL, but in some states there are certain legal mechanisms that prevent domestic violence victims to back off and drop their charges (as a "safeguard" against intimidation leading to dropped charges).
I wouldn't be surprised if some states had laws that more or less forced the potential victim to go through the trial even if she intends on testifying in your favor. I dunno. Just sayin'.
I wouldn't be surprised if some states had laws that more or less forced the potential victim to go through the trial even if she intends on testifying in your favor. I dunno. Just sayin'.
The state presses criminal charges, not the "victim".
The state presses charges, not the "victim". For an example, see the recent proceedings around Sheriff Ross Mirkarimi in San Francisco.
B is still obviously the better option. Providing evidence that ratchets only one way can never help.
They'd never be able to convict if the both of you refused to testify. There'd be no evidence.
They'd never be able to convict if the both of you refused to testify. There'd be no evidence.
The neighbors heard screams and the doctors found bruises. Also, additional witnesses came forward and testified to a history of bruises. Also, she broke her arm falling down the stairs a few months ago -- but by now the picture is coming together and everyone "knows" what that "really means". That's plenty of evidence to fit either the "abusive husband" story or the "illegal sex" story. Either way, the worst case is that you're a felon! (I'm including battery-to-which-consent-is-not-a-defense under "illegal sex" and battery can be a felony.)
I freely admit that this is a worst case scenario: a court in SF isn't likely to convict on the basis of "illegal sex", but maybe you were traveling; hotels have notoriously thin walls and some places in the USA take a much dimmer view of this kind of thing.
None of this is relevant to my original point. Even if you're acquitted your "wall of silence" will have cost you time, money, and reputation, making B worse than A UNLESS you condition your expectation on the case going to court, which you shouldn't, because the point in time when you decide B vs A happens before going to court is a foregone conclusion.
I freely admit that this is a worst case scenario: a court in SF isn't likely to convict on the basis of "illegal sex", but maybe you were traveling; hotels have notoriously thin walls and some places in the USA take a much dimmer view of this kind of thing.
None of this is relevant to my original point. Even if you're acquitted your "wall of silence" will have cost you time, money, and reputation, making B worse than A UNLESS you condition your expectation on the case going to court, which you shouldn't, because the point in time when you decide B vs A happens before going to court is a foregone conclusion.
Silence will lead to court. You will have a lawyer, preferably a competent one. He/She will advise both you and your wife and you'll present a testimony that won't put you in jail.
Talking to the police has a high certainty they'll present your statement, or part of it, as admission of guilt and that leads directly to jail.
I'd rather waste money than my life. Me and my wife can later sue our neighbours for damages and try to get our money back from them. But I can't sue them to give me back jail time.
Talking to the police has a high certainty they'll present your statement, or part of it, as admission of guilt and that leads directly to jail.
I'd rather waste money than my life. Me and my wife can later sue our neighbours for damages and try to get our money back from them. But I can't sue them to give me back jail time.
It surprises me that many people, and even officials say "let us know everything you say or do, if you have nothing to hide", when the very first thing the police tell you when they arrest you is:
"Anything you say, can and will be used against you".
And people are still not freaked out about having the government know everything they've ever said or done? I think the problem is most people just don't realize this or don't think about the type of abuses that this could create.
"Anything you say, can and will be used against you".
And people are still not freaked out about having the government know everything they've ever said or done? I think the problem is most people just don't realize this or don't think about the type of abuses that this could create.
> And people are still not freaked out about having the government know everything they've ever said or done?
The part you left out of the quote was "used against you, in a court of law". Even if NSA should find info on people, it won't be admissible in a court of law against U.S. citizens essentially by definition, so from the POV of a random guy on the street it's a question of whether the nerd sitting at the NSA console is worse than the nerd sitting at the GMail ops room console.
FBI would probably be a bigger worry, but no one seems to care about them for years now.
The part you left out of the quote was "used against you, in a court of law". Even if NSA should find info on people, it won't be admissible in a court of law against U.S. citizens essentially by definition, so from the POV of a random guy on the street it's a question of whether the nerd sitting at the NSA console is worse than the nerd sitting at the GMail ops room console.
FBI would probably be a bigger worry, but no one seems to care about them for years now.
Remember in Seven when Morgan Freeman is all like Hey Man we can't knock down this door we found out about this guy illegally and then Brad Pitt is all like Screw it and kicks down the door and they pay a homeless woman to say she saw someone suspicious...
Yes. Remember how that was portrayed in the move Seven far before Prism was a gleam in any NSA manager's eye? Cops have been able to do that since we've had cops. That makes transparency, rules of evidence, honest judges, and good defense attorneys important but we've already had this problem forever now.
Strongest possible agree; this is a great video. Also:
http://www.youtube.com/watch?v=yqMjMPlXzdA
http://www.youtube.com/watch?v=yqMjMPlXzdA
Note that 16 USC § 3373 makes it pretty clear that you cannot in fact be sent to prison simply for possessing an undersized lobster.
This is perhaps a bad example then. I was referencing James Duane, a law professor, who's quote was:
"People have been convicted in federal court for violating this statute because they brought back a 'boney fish' from Honduras, not knowing that Honduran law, not American law, but Honduran law forbade the possession of the boney fish. People have been been convicted under this law because they were found in possession of what's known as a short lobster."
In general it seems to me that there are a lot of laws, many of them are confusing and esoteric, and their enforcement is often selective. I've seen court cases where people were acting 'normally' under constant surveillance, and it doesn't go well.
However, I'm actually more interested in the question of how celebrated legal victories would probably not have been possible without the ability to break the law.
"People have been convicted in federal court for violating this statute because they brought back a 'boney fish' from Honduras, not knowing that Honduran law, not American law, but Honduran law forbade the possession of the boney fish. People have been been convicted under this law because they were found in possession of what's known as a short lobster."
In general it seems to me that there are a lot of laws, many of them are confusing and esoteric, and their enforcement is often selective. I've seen court cases where people were acting 'normally' under constant surveillance, and it doesn't go well.
However, I'm actually more interested in the question of how celebrated legal victories would probably not have been possible without the ability to break the law.
Bringing Kinder Surprise eggs into the US carries a fine of 2500 USD [1] per egg with it ...
How many eggs would one have to attempt to bring with you to the US before it becomes a jail-able offense? Never-mind that most import stores seem to have them in abundance and somehow get them past customs!
[1] http://www.komonews.com/news/offbeat/Seattle-men-busted-at-C...
How many eggs would one have to attempt to bring with you to the US before it becomes a jail-able offense? Never-mind that most import stores seem to have them in abundance and somehow get them past customs!
[1] http://www.komonews.com/news/offbeat/Seattle-men-busted-at-C...
I seem to recall from a trivia-style book (of all things) that many states have insane laws still technically on the books. Things like men can't wear dresses on Friday or that all men on the streets must have hats.
So, undoubtedly we need to ensure our legal code is cleaned out of cruft like that.
But I would be careful of complaining about the selectivity of enforcement. Take our hero Snowden for example. He demonstrably broke the law, and even Schneier agrees that the law he broke has purpose.
Not that Snowden is going to be pardoned of his crimes (another form of selective enforcement, btw), but he wouldn't even have the possibility of escaping charges for his "crime" without the ability to apply common sense to peculiarities and circumstances of his case.
Indeed, most legal beagles I know of complain heavily about a different type of regime without selective enforcement: "Zero tolerance" policies in schools that result in insanely stupid punishments being meted out to schoolchildren. Does anyone else remember HN's reaction to the science student in Florida who "made a bomb" at school?
So, undoubtedly we need to ensure our legal code is cleaned out of cruft like that.
But I would be careful of complaining about the selectivity of enforcement. Take our hero Snowden for example. He demonstrably broke the law, and even Schneier agrees that the law he broke has purpose.
Not that Snowden is going to be pardoned of his crimes (another form of selective enforcement, btw), but he wouldn't even have the possibility of escaping charges for his "crime" without the ability to apply common sense to peculiarities and circumstances of his case.
Indeed, most legal beagles I know of complain heavily about a different type of regime without selective enforcement: "Zero tolerance" policies in schools that result in insanely stupid punishments being meted out to schoolchildren. Does anyone else remember HN's reaction to the science student in Florida who "made a bomb" at school?
On the contrary, the bulk of this article is attempting to explore how the ability to break the law is valuable for society.
However, when I talk about selective enforcement, what I mean is that in a world where we're all technically violating the law at some point, and where we're all being monitored intensively, then it's essentially up to those in power to "decide" who is punished and who isn't, without any real standard of measure. In that world, it seems pretty clear who ends up in jail and who doesn't.
However, when I talk about selective enforcement, what I mean is that in a world where we're all technically violating the law at some point, and where we're all being monitored intensively, then it's essentially up to those in power to "decide" who is punished and who isn't, without any real standard of measure. In that world, it seems pretty clear who ends up in jail and who doesn't.
> In that world, it seems pretty clear who ends up in jail and who doesn't.
Very true. :(
It's such a difficult problem in general though. In the Navy we have a term "sea lawyers" for those who try to finangle the regulations for their own personal gain.
If there was an easy way to fairly resolve each possible scenario we'd have baked it into the laws already. But even where complex solutions are standardized, that depends on the person evaluating the standard; when I was teaching my discipline method for a given failure-to-study would have been way different from a Chief Petty Officer's.
I think the only way it could possibly work in the future you point out is that, given the data exists, that the ones doing the monitoring (if any) are not able to be the ones doing the deciding.
We say "don't combine the data in the first place" but I just don't see that as a realistic possibility. Someone will have that data, and they can "leak" it to the cops just as well as the NSA could.
I think if we own up to the idea that such a data-driven world is not only possible but likely, that next we need to accept that it will happen and develop countermeasures to maintain our civil liberties.
That doesn't have to be directed against NSA alone. The FBI can legally perform domestic surveillance already (with oversight), and I've already mentioned that people at $ISP or $CLOUD_CO can leak damaging information to the cops and kick off an investigation (and such information would be admissible in court, unlike NSA methods).
Maybe adopting FBI's oversight methods for NSA and similar is enough. Certainly I think we're long past due for defining and enforcing privacy protections on-line to match what we expect in the mail and on the phone. Perhaps those protections can also protect a person in the case that a company illegally provides data about someone to the government as well. But then now we're almost back to talking about CISPA again. :)
But I think just pushing for "don't get the data" is a brittle solution at best. That only really works if you're scared of the government alone. I'm concerned about the government, but they're not at the top of my list by any means of parties that could possibly harm me.
Very true. :(
It's such a difficult problem in general though. In the Navy we have a term "sea lawyers" for those who try to finangle the regulations for their own personal gain.
If there was an easy way to fairly resolve each possible scenario we'd have baked it into the laws already. But even where complex solutions are standardized, that depends on the person evaluating the standard; when I was teaching my discipline method for a given failure-to-study would have been way different from a Chief Petty Officer's.
I think the only way it could possibly work in the future you point out is that, given the data exists, that the ones doing the monitoring (if any) are not able to be the ones doing the deciding.
We say "don't combine the data in the first place" but I just don't see that as a realistic possibility. Someone will have that data, and they can "leak" it to the cops just as well as the NSA could.
I think if we own up to the idea that such a data-driven world is not only possible but likely, that next we need to accept that it will happen and develop countermeasures to maintain our civil liberties.
That doesn't have to be directed against NSA alone. The FBI can legally perform domestic surveillance already (with oversight), and I've already mentioned that people at $ISP or $CLOUD_CO can leak damaging information to the cops and kick off an investigation (and such information would be admissible in court, unlike NSA methods).
Maybe adopting FBI's oversight methods for NSA and similar is enough. Certainly I think we're long past due for defining and enforcing privacy protections on-line to match what we expect in the mail and on the phone. Perhaps those protections can also protect a person in the case that a company illegally provides data about someone to the government as well. But then now we're almost back to talking about CISPA again. :)
But I think just pushing for "don't get the data" is a brittle solution at best. That only really works if you're scared of the government alone. I'm concerned about the government, but they're not at the top of my list by any means of parties that could possibly harm me.
Most of the really absurd laws are local/state, not federal, though. (the absurd federal stuff seems to mainly be budget funding and subsidies, where even if it's clearly dumb, it's usually not pareto-optimal to remove the regulation; every one of them benefits someone in some way, usually a smaller number of recipients of moderate benefit vs. a larger number of diffuse harm.)
That's true. And usually they're so old that even the lawyers, legislators and judges don't know they exist.
If the Federal government could do nothing else I wish they'd change the budgeting to be something that doesn't essentially mandate spending the whole rest of a discretionary budget on stupid and only possibly-useful kit at the end of an FY to keep that line of accounting from being slashed for the next FY.
I get that the budget is so large that ZBB is probably off the table, but there has to be something we can do to incentivize thriftiness where thriftiness is an option without penalizing that agency in the out years.
If the Federal government could do nothing else I wish they'd change the budgeting to be something that doesn't essentially mandate spending the whole rest of a discretionary budget on stupid and only possibly-useful kit at the end of an FY to keep that line of accounting from being slashed for the next FY.
I get that the budget is so large that ZBB is probably off the table, but there has to be something we can do to incentivize thriftiness where thriftiness is an option without penalizing that agency in the out years.
The other problem is departments which are net revenue generating (e.g. USPTO) who can't apply their revenues to operations. As a result, they end up underfunded and underresourced, causing both negative externalities (3 year wait for a patent, shitty patents) and a lack of net revenue to the government.
It sucks when a department has some negative externalities (LEAs seizing assets in drug cases...)
It sucks when a department has some negative externalities (LEAs seizing assets in drug cases...)
Most of the "insane" laws are really authors taking a general statute and conceiving of a highly-specific case that could fall under it, then presenting the law as if it covers only that highly specific case.
For example, many cities have laws about whether or not you can tie up a pet temporarily -- say, hook your dog's leash to a lamp post while you pop into your bank for a moment. But generally they're written broadly rather than specifying only a few types of "pet" animals, so then you get "ha ha this crazy law says you can't tie up a giraffe outside a bank!"
For example, many cities have laws about whether or not you can tie up a pet temporarily -- say, hook your dog's leash to a lamp post while you pop into your bank for a moment. But generally they're written broadly rather than specifying only a few types of "pet" animals, so then you get "ha ha this crazy law says you can't tie up a giraffe outside a bank!"
Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
This is not to say that government should be able to look at private data just because, or that people shouldn't have secrets.
But once you start envisioning people going so insane that they start rounding you up for things that you did which were perfectly fine at the time you did it, you are envisioning things which are pretty far beyond the protections of law and the Constitution anyways.
Or in other words, if things like PRISM could cause society to tear itself asunder in that way then obviously that program must die. But if society does tear itself asunder anyways, then PRISM would be the least of the peoples' worries, some theoretical U.S. secret police would be able to string you up on slights real or imagined, crimes that are completely fictitious, with or without PRISM.
There is absolutely no program that is "safe" to have in a situation that exceptional, so while I see why you would judge a program based on "Would you feel safe if the other Party had this program" (and we may very well fail the NSA's surveillance programs on this test alone), I don't see why you'd judge a program based on "Would you feel safe if the NKVD had this program".
I wouldn't feel safe if we were in any situation so exceptional that we had an NKVD at all. Despite all the complaints about the NSA, they do not have nearly all the elements of the NKVD (neighborhood informants, secret police, etc.), and it may very well be possible that through our separation of functions that NSA can do its job without inevitably bringing down the fabric of society.
This is not to say that government should be able to look at private data just because, or that people shouldn't have secrets.
But once you start envisioning people going so insane that they start rounding you up for things that you did which were perfectly fine at the time you did it, you are envisioning things which are pretty far beyond the protections of law and the Constitution anyways.
Or in other words, if things like PRISM could cause society to tear itself asunder in that way then obviously that program must die. But if society does tear itself asunder anyways, then PRISM would be the least of the peoples' worries, some theoretical U.S. secret police would be able to string you up on slights real or imagined, crimes that are completely fictitious, with or without PRISM.
There is absolutely no program that is "safe" to have in a situation that exceptional, so while I see why you would judge a program based on "Would you feel safe if the other Party had this program" (and we may very well fail the NSA's surveillance programs on this test alone), I don't see why you'd judge a program based on "Would you feel safe if the NKVD had this program".
I wouldn't feel safe if we were in any situation so exceptional that we had an NKVD at all. Despite all the complaints about the NSA, they do not have nearly all the elements of the NKVD (neighborhood informants, secret police, etc.), and it may very well be possible that through our separation of functions that NSA can do its job without inevitably bringing down the fabric of society.
> Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
California and a few other states love ignoring this, I believe there's even legislation going up for vote this week that criminalizes exactly this. Until the government is adequately constrainted by its contstituency, we will always have overreaches.
California and a few other states love ignoring this, I believe there's even legislation going up for vote this week that criminalizes exactly this. Until the government is adequately constrainted by its contstituency, we will always have overreaches.
> Until the government is adequately constrainted by its contstituency, we will always have overreaches.
If there's only one lesson I wish people would take away from all this NSA drama, it's this one.
The government is in the end what people make of it, nothing more or less.
If there's only one lesson I wish people would take away from all this NSA drama, it's this one.
The government is in the end what people make of it, nothing more or less.
Also, the Constitution itself forbids "ex post facto" laws, which means you can't be convicted of actions that were not actually crimes at the time you did it.
Even if you can't be convicted in a court, there's still the potential for intimidation, coercion, and embarrassment due to past activities which were once acceptable but are no longer.
Even if you can't be convicted in a court, there's still the potential for intimidation, coercion, and embarrassment due to past activities which were once acceptable but are no longer.
Well as far as I can tell the only additional concern we have in this case is that people might see your 1-900-HOTWINK phone sex calls, given that PRISM itself doesn't actually pull more data than the NSA was able to pull before.
And either way, it's already happening. Remember the sorority president who had her pissed-off email to her "sisters" leaked to the media? Which led to people discovering her Twitter account that showed her to be a racist?
You can't blame that one on the gub'mint; we're already living in that particular brave new world, if people don't want to acknowledge it that's their problem.
What I think will actually happen as far as societal change goes is that we will become used to the idea that people do grow up and mature and stop holding things against them that they said 20 years before.
And either way, it's already happening. Remember the sorority president who had her pissed-off email to her "sisters" leaked to the media? Which led to people discovering her Twitter account that showed her to be a racist?
You can't blame that one on the gub'mint; we're already living in that particular brave new world, if people don't want to acknowledge it that's their problem.
What I think will actually happen as far as societal change goes is that we will become used to the idea that people do grow up and mature and stop holding things against them that they said 20 years before.
What I think will actually happen as far as societal change goes is that we will become used to the idea that people do grow up and mature and stop holding things against them that they said 20 years before.
People should be able to say things in private yesterday (not just 20 years ago) and not have it affect them in public today.
People should be able to say things in private yesterday (not just 20 years ago) and not have it affect them in public today.
Sure, but when did that change? The NSA, even post-Verizon and post-PRISM still can't even get a warrant to get what I said.
The FBI could get a warrant, or local law enforcement, but that was true in 2012, and 2001, and 1999, and 1983 and 1961 and earlier. And while I understand "Law & Order" is just TV, it's pretty amazing what law enforcement can convince third parties to voluntarily let them see, and has been for decades as well.
Ever since I figured out crypto was a thing I knew to use PGP/GPG for things that had to be secret and to not trust the rest to remain secret forever. Certainly I wouldn't trust Twitter or Facebook, have you ever seen /r/cringepics??
Of course back then I wasn't worried about the government, I was worried about Mallory, but I'm still just as worried about Mallory as I was before.
The FBI could get a warrant, or local law enforcement, but that was true in 2012, and 2001, and 1999, and 1983 and 1961 and earlier. And while I understand "Law & Order" is just TV, it's pretty amazing what law enforcement can convince third parties to voluntarily let them see, and has been for decades as well.
Ever since I figured out crypto was a thing I knew to use PGP/GPG for things that had to be secret and to not trust the rest to remain secret forever. Certainly I wouldn't trust Twitter or Facebook, have you ever seen /r/cringepics??
Of course back then I wasn't worried about the government, I was worried about Mallory, but I'm still just as worried about Mallory as I was before.
I was under the impression that federal crimes of this sort are only actionable if you are aware of the legality before it comes into your possession.
That would correlate with your statement that it isn't actually illegal, is that why? There are some crimes where it seems as though the public domain has enough knowledge that you should know better without being explicitly told so. But for something like an under-sized lobster, I think you should get a pass on not knowing.
This also presents a problem of enforcibility - will a law be enforced, and under what conditions, if it's a "silly law"? I think this is what really makes it important to have things to hide - you could be tried for what they find if they are pursuing you for other reasons.
In other words, I sure hope Edward Snowden doesn't have an under-sized lobster.
That would correlate with your statement that it isn't actually illegal, is that why? There are some crimes where it seems as though the public domain has enough knowledge that you should know better without being explicitly told so. But for something like an under-sized lobster, I think you should get a pass on not knowing.
This also presents a problem of enforcibility - will a law be enforced, and under what conditions, if it's a "silly law"? I think this is what really makes it important to have things to hide - you could be tried for what they find if they are pursuing you for other reasons.
In other words, I sure hope Edward Snowden doesn't have an under-sized lobster.
I believe child porn is the exception. Mere possession even if you didn't know it's illegal (or even unknowing possession) seems to be a crime.
(IANAL, especially not with respect to anything underage.)
(IANAL, especially not with respect to anything underage.)
I think the US has begun to completely ignore what is known as "Mens Rea" for regulations such as this. While for something like Murder you have to have intended to commit the crime, many other crimes require no intent or prior knowledge. (Manslaughter, Child Pornography, Possession of Undersized Lobster as examples)
http://lawcomic.net/guide/?p=173 (A more entertaining description)
http://lawcomic.net/guide/?p=173 (A more entertaining description)
This isn't true at all. Read model jury instructions sometime; you'll see that virtually all of them instruct the jury not to convict without first determining that there was some knowing action. The "Undersized Lobster" statute is explicit about this, but doesn't have to be; the "strict liability" crimes (like statutory rape) are the exception, not the rule.
However, a growing number also do the opposite - for example patent law. (though that requires Mens Rea for punative damages)
But yes, I guess that most laws do (thankfully) still include Mens Rea.
But yes, I guess that most laws do (thankfully) still include Mens Rea.
No that's a misunderstanding of the legal term of art "knowingly".
It is a legal maxim that ignorance of the law is no excuse. A law that has a mens rea (i.e. intent) of "knowingly" refers to some factual circumstance that is one of the elements of the crime.
An example from the New York state penal law:
"156.05 Unauthorized use of a computer. A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization."
In this case the "knowingly" element is satisfied if you knew (or should have known) that you didn't not have authorization to access the computer, computer service, or computer network.
Similarly for possession statutes, the (sometimes implicit) knowingly element is satisfied if you knew you possessed the given item even if you had no idea possessing it was illegal. A situation where the knowingly element would not be satisfied, is if someone snuck the item into your luggage.
It is a legal maxim that ignorance of the law is no excuse. A law that has a mens rea (i.e. intent) of "knowingly" refers to some factual circumstance that is one of the elements of the crime.
An example from the New York state penal law:
"156.05 Unauthorized use of a computer. A person is guilty of unauthorized use of a computer when he or she knowingly uses, causes to be used, or accesses a computer, computer service, or computer network without authorization."
In this case the "knowingly" element is satisfied if you knew (or should have known) that you didn't not have authorization to access the computer, computer service, or computer network.
Similarly for possession statutes, the (sometimes implicit) knowingly element is satisfied if you knew you possessed the given item even if you had no idea possessing it was illegal. A situation where the knowingly element would not be satisfied, is if someone snuck the item into your luggage.
[deleted]
This fuckin' guy.
Hey, what do you want from me? It really isn't a crime to possess an undersized lobster. Don't blame me, blame the US Code.
That entire issue with the lobster is a good example of why some people excel at taking tests (and school in general) and some people don't. But sometimes the people that don't and can navigate life actually end up in a better place.
Anyone who attempts to understand minutia and not factor in common sense to everyday life will never get to live to age 100 but will quickly perish consumed with anxiety about all the things that can potentially go wrong. So maybe there are weird laws and maybe a set of circumstances came together to cause a small amount of people to get prosecuted and maybe some of them actually did jail time. Who cares?
Having been in business for quite some time there are risks that you take every day that far exceed any chance of an even valid arcane federal law causing you any trouble at all.
It's not allowed to drive w/o a front license plate in my state. But I've been doing it for 2 years now over two different cars because I don't want to mess up the front bumper with holes. I've never been stopped and if I am stopped at some point I might get a $80 ticket. And maybe there is a small chance of me having something worse happen as well (arrest or geez someone could plant something). Who cares? It's a risk worth taking to me.
Anyone who attempts to understand minutia and not factor in common sense to everyday life will never get to live to age 100 but will quickly perish consumed with anxiety about all the things that can potentially go wrong. So maybe there are weird laws and maybe a set of circumstances came together to cause a small amount of people to get prosecuted and maybe some of them actually did jail time. Who cares?
Having been in business for quite some time there are risks that you take every day that far exceed any chance of an even valid arcane federal law causing you any trouble at all.
It's not allowed to drive w/o a front license plate in my state. But I've been doing it for 2 years now over two different cars because I don't want to mess up the front bumper with holes. I've never been stopped and if I am stopped at some point I might get a $80 ticket. And maybe there is a small chance of me having something worse happen as well (arrest or geez someone could plant something). Who cares? It's a risk worth taking to me.
Well, if the lobster crime really was a crime, there'd be a prosecutor who could on a whim ruin your life. If you liked lobsters and had undersized lobsters. So, that's a bit more of a risk than an $80 ticket.
(I've driven for years on suspended licenses, so I know what you mean [I'm legal now]).
(I've driven for years on suspended licenses, so I know what you mean [I'm legal now]).
I agree that is possible but my point is I don't want to worry about that.
I worry about what I can do to control the things that I can control (or evaluate the risks).
(Today I met with a contractor to get a price on a backup generator for the house. More for the anxiety every time there is a storm and "potential" loss of power rather than the actual loss of power during the storm which has been nominal.)
FYI my attorney is handling part of the investigation for MIT for the Schwartz case and says a report is being released in July. He's a former federal prosecutor who handled a famous computer crime case in the 90's and worked with Ortiz. (He's actually turned into somewhat of a friend who I can talk with and ask questions w/o being billed.)
I worry about what I can do to control the things that I can control (or evaluate the risks).
(Today I met with a contractor to get a price on a backup generator for the house. More for the anxiety every time there is a storm and "potential" loss of power rather than the actual loss of power during the storm which has been nominal.)
FYI my attorney is handling part of the investigation for MIT for the Schwartz case and says a report is being released in July. He's a former federal prosecutor who handled a famous computer crime case in the 90's and worked with Ortiz. (He's actually turned into somewhat of a friend who I can talk with and ask questions w/o being billed.)
Thanks for the post Moxie! I always enjoy reading your stuff (and have you subscribed in my RSS feed). I think it's sad that many believe they 'have nothing to hide'. I've already seen it expressed online in response to things others have posted.
I think one thing I really wonder about that you somewhat touch upon is the fact that nearly everyone is carrying upon their person a GPS tracking device. I believe it not impossible the day will come where simply being in the area where a crime occurred is enough to open you to suspicion. Perhaps this has already happened.
I think one thing I really wonder about that you somewhat touch upon is the fact that nearly everyone is carrying upon their person a GPS tracking device. I believe it not impossible the day will come where simply being in the area where a crime occurred is enough to open you to suspicion. Perhaps this has already happened.
On the flip side, it would revolutionize the alibi-generation process (both legitimate and illegitimate)!
A society without crime likely will be a stagnant society, one where there is not enough room for any fringes at all rather than just not that one fringe that we'd like to get rid off.
Imagine an organism that perfects the trick of error correction on genetic information. That organism would not suffer from some of the afflictions that come with imperfect genetic copying. But that organism would also instantly stop to evolve.
Imagine an organism that perfects the trick of error correction on genetic information. That organism would not suffer from some of the afflictions that come with imperfect genetic copying. But that organism would also instantly stop to evolve.
Excellent article. I am hearing far too often, from people who I thought were very well informed and intelligent, that "I have nothing to hide so why should I worry". It is troubling to me that more people do not see the very clear signs of trouble ahead if things do not change.
I love this article so much. It explains something that can be hard to grasp. It isn't immediately intuitive, but it's certainly so: without these nuances and flexibility, no progress can exist.
Or we could just do away with any felony that doesn't involve physically harming a person.
Or we could just do away with any felony that doesn't involve physically harming a person.
What about a felony where someone embezzles $500 million in taxpayer funds? Or knowingly sells defective vaccines to people who mercifully never actually catch ill?
right, because that's what everyone is in jail for.
This presentation that Moxie gave at defCon 18 is really excellent:
https://www.youtube.com/watch?v=eG0KrT6pBPk
https://www.youtube.com/watch?v=eG0KrT6pBPk
but if everyone’s every action were being monitored, and everyone technically violates some obscure law at some time, then punishment becomes purely selective. Those in power will essentially have what they need to punish anyone they’d like, whenever they choose, as if there were no rules at all.
Could you not just subpoena the monitoring data that law enforcement had access to and make a 14th Amendment case with a quick SQL statement.
Could you not just subpoena the monitoring data that law enforcement had access to and make a 14th Amendment case with a quick SQL statement.
>The cornerstone of liberal democracy is...
For the love of god or anything you find holy, STOP insisting we live in a democracy!
I stop reading any article that asserts we live in a democracy or should strive to live in one.
We live in a republic. http://www.c4cg.org/republic.htm
[edit for auto-complete]
For the love of god or anything you find holy, STOP insisting we live in a democracy!
I stop reading any article that asserts we live in a democracy or should strive to live in one.
We live in a republic. http://www.c4cg.org/republic.htm
[edit for auto-complete]
> We live in a republic
Republic refers to any form of government which is not a monarchy.
The US is a republic -- specifically, a federal republic -- it is also a democracy -- specifically a representative democracy.
The whole "The US is not a democracy, its a republic" thing makes as much as saying "16 isn't a perfect square, its an even number."
Republic refers to any form of government which is not a monarchy.
The US is a republic -- specifically, a federal republic -- it is also a democracy -- specifically a representative democracy.
The whole "The US is not a democracy, its a republic" thing makes as much as saying "16 isn't a perfect square, its an even number."
For the love of god or anything you find holy, STOP insisting that only direct democracy counts as democracy!
Even being succinct and saying "a representative democracy" doesn't imply a form of government which is constrained by a constitution.
Saying democracy instead of republic just undermines the common understanding of how our government was setup to function.
Saying democracy instead of republic just undermines the common understanding of how our government was setup to function.
> Even being succinct and saying "a representative democracy" doesn't imply a form of government which is constrained by a constitution.
Neither does saying "republic". And "representative democracy" isn't succinct compared to "democracy", its verbose.
> Saying democracy instead of republic just undermines the common understanding of how our government was setup to function.
No more than saying "republic" instead of "democracy". A "federal republic that is also a representative democracy governed under a written constitution" would avoid that problem, but its a lot to write, when "democracy" is the part that is relevant to the point you are trying to make.
Neither does saying "republic". And "representative democracy" isn't succinct compared to "democracy", its verbose.
> Saying democracy instead of republic just undermines the common understanding of how our government was setup to function.
No more than saying "republic" instead of "democracy". A "federal republic that is also a representative democracy governed under a written constitution" would avoid that problem, but its a lot to write, when "democracy" is the part that is relevant to the point you are trying to make.
We live in a republic
A democratically elected representative republic, specifically. I agree that you are correct in a pedantic sense, but our society is a "democratic society" in a more general, looser sense. Given the context of TFA, I think the usage is correct enough.
A democratically elected representative republic, specifically. I agree that you are correct in a pedantic sense, but our society is a "democratic society" in a more general, looser sense. Given the context of TFA, I think the usage is correct enough.
We live in a republic, but is a republic not extremely similar to a representative democracy?
"Republic" is essentially orthogonal to "representative democracy".
The United States of America has a government which is both a republic (and, more specifically, a federal republic) and a representative democracy.
There are republics that aren't any kind of democracy, and representative democracies that are not republics (e.g., the United Kingdom.)
The United States of America has a government which is both a republic (and, more specifically, a federal republic) and a representative democracy.
There are republics that aren't any kind of democracy, and representative democracies that are not republics (e.g., the United Kingdom.)
I thought about commenting on that, but I knew what he meant.
I wonder: does increasingly weak enforcement lead to increasing complacency about the law in question?
Moxie Marlinspike always surprises me with his clear and rigorous train of thought. His example of addressing same sex relationships and how even though they were illegal at a time shows why ominous surveillance comes at the expense of people's choices in lives.
"The best way to get a bad law repealed is to enforce it strictly."
― Abraham Lincoln
― Abraham Lincoln
"All human beings have three lives: public, private, and secret."
Gabriel García Márquez
Gabriel García Márquez
I agree...
This, a thousand times this.
I was struck with the same idea in the past. Law should not be 100% enforced, or it will be a dystopia. I wouldn't want to live in a world were the Grateful Dead couldn't do any drugs, teenagers could never drink a beer, nobody could express himself with a graffiti in a drab wall, no child that wants to be a graphic designer could ever pirate Photoshop, being a few months less or more than the legal age to date sends you off as a molester, playing a different region DVD lands you to jail, and a million other things...