5 ms·

Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible

by cgshaw 13y ago

Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender. Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute) The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.

DannyBee 13y ago
>Attorney here. So am I, though not a criminal one :) >The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane. While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.
- cgshaw 13y ago
  Sweet. I had to jump off last night, but I did some criminal appointments in both federal and state court to get some courtroom experience while fresh out of law school. Certainly not an expert, but capable of having a fairly deep discussion on search & seizure. I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.
mikhael 13y ago
I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?
- DannyBee 13y ago
  An interesting question. Again, the main historical reason for the fifth amendment was torture, not to avoid knowing the truth, or that you were somehow magically sacred. If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine. Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed). In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)
  - nitrogen 13y ago
    If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine. I must state that this sentiment sickens me slightly. I sincerely hope that this interpretation is absolutely unthinkable by the time technology reaches that point. I don't believe that any world in which one's thoughts and memories are not private can ever be free.
    - DannyBee 13y ago
      Sorry, I should have been clear: I meant fine legally, in the context of the fifth amendment. It is not a statement of what I believe the social view/norm/etc should be, or whether it should be allowed. Only an objective assessment of whether it would fall within the context of what was currently protected and the intent of protecting that. Personally, I would find it abhorrent, but that is not particularly relevant to the law.
      - tptacek 13y ago
        I read something recently --- can't remember what --- that suggested that the expensive ceremony around obtaining phone wiretaps at the state level were in part motivated by the concern that wiretaps came close to reading the thoughts of the accused.
samstave 13y ago
Question: Assume the year is 1790. DannyBee and PG are having a conversation in a sewer beneath Boston. DannyBee tells PG that he is going to rob the town bank and set it afire. This was a verbal communication between the two. There was a USG agent around the corner in another tunnel. He heard an echo of the two talking. This is the only evidence of the two communicating about the matter. How is this prosecuted? (please forgive the weak analogy - and improve if you can... but please tell me the 1790 equiv argument for what we are dealing with where the snooping is either protected or denied)
edanm 13y ago
Could you explain the history of the 5th ammendmment in this context? I understand from some light Wikipedia reading that it was originally around mostly to prevent tortured confessions. Why is it still relevant at all?
- flagnog 13y ago
  ummm, waterboarding?

by cgshaw 13y ago

DannyBee 13y ago

>Attorney here. So am I, though not a criminal one :) >The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane. While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.

cgshaw 13y ago
Sweet. I had to jump off last night, but I did some criminal appointments in both federal and state court to get some courtroom experience while fresh out of law school. Certainly not an expert, but capable of having a fairly deep discussion on search & seizure. I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.

mikhael 13y ago

I read GauntletWizard's point as that such devices are becoming like "brain prostheses." If the device were embedded in your skull/brain, but could be wiretapped, would it be subject to the fifth amendment? If technology develops to read information from another's brain without their consent, would that be subject to the fifth amendment?

DannyBee 13y ago
An interesting question. Again, the main historical reason for the fifth amendment was torture, not to avoid knowing the truth, or that you were somehow magically sacred. If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine. Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed). In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)
- nitrogen 13y ago
  If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine. I must state that this sentiment sickens me slightly. I sincerely hope that this interpretation is absolutely unthinkable by the time technology reaches that point. I don't believe that any world in which one's thoughts and memories are not private can ever be free.
  - DannyBee 13y ago
    Sorry, I should have been clear: I meant fine legally, in the context of the fifth amendment. It is not a statement of what I believe the social view/norm/etc should be, or whether it should be allowed. Only an objective assessment of whether it would fall within the context of what was currently protected and the intent of protecting that. Personally, I would find it abhorrent, but that is not particularly relevant to the law.
    - tptacek 13y ago
      I read something recently --- can't remember what --- that suggested that the expensive ceremony around obtaining phone wiretaps at the state level were in part motivated by the concern that wiretaps came close to reading the thoughts of the accused.

samstave 13y ago

Question: Assume the year is 1790. DannyBee and PG are having a conversation in a sewer beneath Boston. DannyBee tells PG that he is going to rob the town bank and set it afire. This was a verbal communication between the two. There was a USG agent around the corner in another tunnel. He heard an echo of the two talking. This is the only evidence of the two communicating about the matter. How is this prosecuted? (please forgive the weak analogy - and improve if you can... but please tell me the 1790 equiv argument for what we are dealing with where the snooping is either protected or denied)

edanm 13y ago

Could you explain the history of the 5th ammendmment in this context? I understand from some light Wikipedia reading that it was originally around mostly to prevent tortured confessions. Why is it still relevant at all?

flagnog 13y ago
ummm, waterboarding?