Well, it seems that I disagree with just about everything in this post.
Tao, Greg wrote:
>I appreciate all the thoughtful feedback. The more I hear from folks, the
>more I realize this topic is within the scope of the mailing list because it
>relates to computer crime investigations too.
>
I do not think CRIME is a topical list for a civil liberties rant,
unless you are specifically referring to computer issues. There are LOTS
of civil liberties and evidentiary issues involved in computer-related
crime, which we really should discuss here some time :)
>I'd like to take a different approach now. Rather than solicit feedback
>about my proposal, which was admittedly just the ranting of a fellow who was
>as deeply upset as everybody else about the conclusion to the Oregon City
>case, I'd like to explore the question of balancing our civil rights vs. the
>public good.
>
Me too. IMHO, law enforcement already goes WAY over the line in
violating our civil rights in the name of law enforcement, and if there
is to be any balancing, it should be to make the rules of evidence,
search, and seizure much tougher on law enforcement:
* End the practice of drug forfeture laws. This is a shameless
extortion racket carried out by law enforcement to line their own
pockets at the expense of innocent victims.
* End the "knock and talk" drug task force in PDX. This task force
uses circumstantial evidence that would NOT get them a warrant to
go knock on your door, and when the victim opens the door, the
officers "smell something" and then force their way in and
commence to search.
* Kudos to the Supreme Court for ruling that law enforcement cannot
use IR (infra red) scans of someone's house (looking for grow
lights) as evidence for a search warrant.
>-- In the military, there is no "free speech" as we know it in the civilian
>world. You have UCMJ, and for good reason...to maintain the unified chain of
>command
>
The military is a totalitarian system, and has no bearing what so ever
on civil society.
>-- Firemen responding to a fire don't need a warrant to search a house for
>people...they just save lives cutting through walls if necessary
>
Firemen are not law enforcement, s the circumstances under which FD
break and enter are of lesser civil concern.
>-- While law-abiding citizens have the right to keep and bear arms,
>convicted felons do not
>
Convicted felons lose all sorts of civil rights, often including the
right to vote. I have a serious problem with that: they have either
served their debt to society, or they have not. I object to 2nd class
citizenship.
>-- There is the cliché example that the right of free speech does not mean
>you can yell "fire" in a crowded theater
>
Actually you do have the right to yell "fire" in a crowded theatre,
particularly if there is a fire :) You will just be held accountable later.
>-- Airport security personnel don't need a warrant to run everybody through
>metal detectors and other security checkpoints
>
Airport security searches are indeed intrusive, and if they were
compulsory they would be unconstitutional. However, you have a choice:
you can choose not to fly. Taking a trip on a commercial airline is not
a civil liberty.
>-- evidence thrown out on a technicality (e.g. cast iron skillet used by
>Ward Weaver to beat an ex-wife)
>
Evidence thrown out on a "technicality" means that someone's civil
rights were violated to obtain the evidence. For instance, if the state
wanted to convict a particularly troublesome individual of a drug crime,
it would be all too easy to do an un-warranted search and "find" a bag
of heroin on them. Probable cause is required for searches to prevent
the police from planting evidence. Items found in searches without
probable cause is tainted by the possibility that it was planted, and so
*must* be thrown out.
There is a *lot* of case law that stipulates that the *appearance* of
justice is more important than an individual conviction. The justice
system must not even *appear* to be conducting non-impartial enforcement.
>The problem we face is that in the case of predatory murderers who abduct
>and kill people, time is of the essence when a person goes missing. I've
>heard people describe the first 48 hours as critical. These predators most
>often know their victims and live or operate within some proximity of them.
>Furthermore, they often fit a certain criminal profile involving prior
>violent criminal behavior.
>
The first 48 hours is critical because the evidence gets destroyed;
people forget stuff, forensic evidence is trampled by traffic, and the
purpetrator covers their tracks. So crime needs to be reported quickly,
and the police need to jump on it if it is a major crime. What has this
to do with wanting to soften warrant requirements?
>However, the limits we place on law enforcement say
>a lot about ourselves, both good and bad.
>
What says a lot about us is that America incarcerates far more of its
citizens than any other country in the free world, and second only to
China. 3% (one in thirty) of Amaricans are rotting in prison. There is a
highly profitable prision industrial complex that enslaves these people
to work in various industries conducted inside prisons for pennies per
hour, reaping huge profits, and encouraging the system to imprison more
people, rightly or wrongly. The whole thing is massively subsidized by
tax payers, who now pay more for prisons than for education. This is
outrageous.
Re-balancing is required for sure, but in the opposite direction from
what you suggest.
>I wonder if we as a society are collectively doing the same thing as Kitty
>Genovese's neighbors by not opening up our communities to more liberal
>searches by law enforcement when human lives are at stake.
>
No. The history of the RICO statute tells us otherwise. Drug seizure
laws were intended to allow police to deny the massive wealth of drug
kingpins to arrested suspects, so that they could not use the fruits of
their illegal activities to spend on high-priced lawyers. But in
practice drug seizure laws are used to shake down the poorest and most
defenseless members of society, and the drug kingpins carry on business
as usual.
More liberal search criteria would almost certainly be used to harm the
most defenseless members of society, and not help at all in catching
major criminals.
Crispin
--
Crispin Cowan, Ph.D.
Chief Scientist, WireX http://wirex.com/~crispin/
Security Hardened Linux Distribution: http://immunix.org
Available for purchase: http://wirex.com/Products/Immunix/purchase.html
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