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Comment by moomin | Hacker News Reader

So, let's see now: a man is going free who should probably be going to jail for a long time, because the state doesn't want to disclose the methods of gathering evidence against him, which we can speculate are because they are illegal or sourced from non-law-enforcement agencies. A case with near-identical facts and the same judge _is_ going to trial and, not content with tapping your email, the state now wants to put viruses on your computer.

It's hard to point to anything in this story that resembles "How the world should be".

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While the majority of it probably isn't 'how the world should be', a man is going free because (we speculate) that the evidence against him was gathered illegally. This bit probably is 'how the world should be'.

I've never understood this. If I gather evidence against somebody illegally, and it proves their guilt, shouldn't we both go to jail?

Fruit of the forbidden tree. It's inadmissible in court.

Unless the LEO acted in "good faith"

The structure is to keep police officers honest which is more important than a particular person going to jail. The operating principle is that a dishonest police force is more dangerous than a criminal who was caught using illegal evidence. Typically the criminal will commit another crime and if you get evidence against them legally, then you can prosecute them for the new crime.

> The operating principal

Wouldn't the right word be "principle"?

Yes it would be (fixed). Thanks for catching it while it was still editable!

The "we both go to jail" policy would probably do even betting at keeping police officers honest. The threat of the officer going to jail being significantly worse than the threat of allowing the criminal to walk free.

The details are sketchy, who prosecutes the police/prosecutors? But in principle I think it makes sense.

> worse than the threat of allowing the criminal to walk free.

Alleged criminal. You realize you're innocent until proven guilty, right?

A "we both go to jail" policy would have the same incentives we see in the Wells Fargo example. We need top down incentive to follow the law at all levels. The current situation means that nobody profits from failure to follow the law.

>The threat of the officer going to jail being significantly worse than the threat of allowing the criminal to walk free.

Not if the officer going to jail is being manipulated by their superiors or is otherwise arranged to take the fall for someone else.

I think the logic is: "If you're willing to gather evidence against somebody illegally, then you'd also be willing to fabricate evidence that doesn't exist".

This argument would legitimize torture if society would agree on that it is legitimate. So it's a really bad idea to accept this argument.

The way the system is now, if you gather evidence by "torture" (remembering it's just an analogy) and fail to come up with a convincing cover story for how you gathered the evidence, then the case is dismissed and everyone goes home. "Welp, it was worth a try!" It's this current system that's at risk of legitimizing torture as yet another illegal-but-oh-well tool for investigation.

Not if the victim of torture can afford our legal system. A (most likely Federal) judge would deny qualified immunity to those responsible, and they'd be held accountable at least in civil court, possibly criminal, although doubtful, given the way state prosecutors crawl up the police butt.

A federal judge deny qualified immunity? I'm struggling to contain my incredulity. There are instances where cops shot people who were unarmed and attempting to comply, where filmed doing it from multiple angles, and the cops still walked.

There also cases where cops shot people and the cops went to jail, but nobody talks about those.

https://slatestarcodex.com/2014/12/17/the-toxoplasma-of-rage...

Of course not. The justice system actually working shouldn't be remarkable enough to warrant a news cycle.

Federal courts do this routinely on cases brought before them. But most victims can't afford the court system. Here is a recent, typical one:

"New Brunswick, N.J., police drive their patrol car into fleeing suspect. Officers: We parked in his path, and he rode his bike right into us. Third Circuit: Video inconclusive. No qualified immunity.

You're getting a lot of huffy responses to this question, but it is an entirely legitimate one. In fact, many (maybe most?) western countries don't have the same exclusionary rules the US has. There are other remedies to police misconduct. If you were starting a nation from first principles, it's not an iron law of justice that your courts have that rule.

The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police. We don't have to convince evidence-gathering officers of their liability or assess liability up and down the chain of responsibilities on the prosecution's side; we just have to assess whether evidence was handled properly, and, if it wasn't, the prosecutors lose the evidence. The one simple rule neatly ensures that nobody --- in any role --- on the prosecution's side has any incentive to mishandle evidence (or coerce underlings or partner organizations to mishandle it).

But clearly the rule isn't a requirement. We don't generally believe, for instance, that Canada's criminal justice system is systemically corrupt, and they don't have a hard-and-fast exclusion rule.

> incentive structure for the police

That assumes that the police's incentive is simply to convict as many people as possible. Which, if true, raises other concerns.

I think it more assumes that the police's incentive is to maximize the ratio of accusation to conviction as much as possible, which is a reasonable goal.

If they were simply trying to maximize the total number of convictions, then this wouldn't necessarily help; the police would just make broaden the kind of cases they'd accuse

And ofc, it's the function of the police to maximize the misdemeanor to conviction ratio; it's the function of the court to judge the quality of misdemeanor.

It is the function of whatever social/moral arm of the government to minimize misdemeanors. A police officer minimizing the number of accusations should only be doing so for practical reasons; In the ideal world he shouldn't be trying to interpret the law itself, and if it should exist (because it should in general be explicit what is and is not legal, and in general, it is not the policeman's job to decide what is moral, it is to enforce the standing morals.)

But its not an ideal world, and nobody wants to spend time/effort/money on a trash case, so the general incentive is to successfully convict; not to simply try.

> maximize the ratio of accusation to conviction

Um -- I think you meant that the other way around :-)

yes

>I think it more assumes that the police's incentive is to maximize the ratio of [conviction to accusation] as much as possible, which is a reasonable goal.

Strictly speaking it's not a very reasonable goal. The best way to achieve it would be to pick, say, the three easiest to prosecute cases every year and only prosecute those.

Well shit

Maximize ratio and minimize unaccounted (unaccused?) crime

I mean, illegally obtained evidence is still evidence. I don't think it's absurd to think police want to convict as many guilty criminals as possible, particularly if the crime is heinous enough to justify risking their own jobs by breaking the law to get evidence.

This would open the doors for torture, not something a civilized state should risk lightly.

When we no longer have elected police, sherrifs, or district attorneys, then the numbers won't matter as much as the severity or sensationality of the crimes investigated.

But if the numbers = tough on crime, then there is pressure to obtain evidence illegally. If it becomes pervasive, then investigating the misconduct will never be prioritized because it doesn't seem as impressive to the voting public, and furthermore the justice system very rarely goes after their own.

So it's good there's a consequence for not walking a fine line; it's the embarassament of having your work undone.

> The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police.

It also strikes directly at the incentive structure for defendants.

If you prove that the government wronged you but even then you still go to jail, you have little incentive to spend your resources proving that. And neither does anybody else, because prosecutors are not very interested in looking for prosecutorial misconduct.

But if proving government misconduct will keep you out of jail then you have every incentive to do it and the government won't be able to get away with it as much.

> The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police.

That's debatable. Parallel construction seems pretty common. The NSA shares information with the FBI, DEA etc, and then they exploit that information to collect clean evidence. So there's never any mention of NSA help.

Of course, that arguably involves perjury. But judges seem pretty OK with ignoring that. I do suspect that the Playpen cases involved parallel construction, and that they just screwed up on this one.

By "pretty common", you mean, "I've heard of it", right?

Point taken. But I've heard repeatedly about it, involving different sorts of illegal data, over some years. And the discovery rate is arguably low. That suggests to me that it's common.

You're actually missing a huge point in this, it gives the police the ability to selectively block the justice system.

If a police officer sees a defendant that they wish to let off the crime, all they have to do is testify to some trivial mishandling of the evidence.

What guarantees do we have that the evidence has not been fabricated or planted? Evidence collection processes exists to minimize misconduct. If someone can't explain how the evidence has been obtained, they should be viewed as suspect.

I'm with you ! They are both criminals and as such should be detained.

Quoting Bill Binney “Things won't change until we put these people in jail”

There's multiple problems with that idea. Firstly, it incentivizes 'working around the system' for enforcement to go after people. Enforcement is not inherenetly out there for the 'good', many times they're there for their own agenda, while looking like they're enforcing the law. This can create a mixture of criminal/enforcement culture, and lead to a further increase of 'bad cops'.

Secondly, when gathering evidence illigally, it may be that the evidence is purely out of context, shaped to make the person look guilty, or that the methods of doing so are not reliable. Courts still have a problem with reliability of evidence, even 'lie-detectors' are still seen as legitimate, but there is no evidence of their ability.

How can tainted evidence be used to establish guilt beyond reasonable doubt, when the entire basis of trust in the collection of the evidence is ostensibly gone.

One reason that I didn't consider until relatively recently is the issue of standing.

It's not possible for random people to successfully sue, say, the police for illegally gathering evidence if they have no proof that they were harmed and no proof that it happened.

The issue is that only people charged with a crime have the standing needed to bring this matter up in court. The (possible) crooks keep the police and justice department honest.

How would one stop the police from getting "anonymous tips" with illegally acquired evidence again and again? It sounds like it would lead to a plain disregard for procedure.

I'm pretty sure there's a common saying about two lefts not making a right. Or two rights not making a wrong? Can't quite remember.

How so?

In general if a criminal goes free despite having evidence against him just because the evidence was not obtained legally ... it sounds rather wrong to me.

That would encourage police to gather evidence illegally all the time, because it works. Which is consider a worse state of affairs than guilty people going free.

Just imagine undercover police walking into every home that left their door unlocked and having a snoop around. They could do that and get some convictions out of it.

No. That does not follow at all. What it means is that the undercover police illegally collecting evidence is convicted, _and_ the child pornographer is convicted.

How do you trust the evidence of someone who you can prove(to the point of conviction) is willing to do illegal things to gather the evidence?

The evidence is the evidence. A criminal is a criminal. Someone up this chain of thread was making that point.

Evidence is not the evidence. It can be faked.

When you gather evidence illegally, it's easier to fake it.

And illegal is illegal. The investigation agencies have to make their case within the bounds of the law, they are not above it.

Yeah, meanwhile, you're going to have cases where you sent someone to prison(or perhaps killed them) and have absolutely no reason to believe the verdict was undeserved. Everyone thinks that the court cases will go like this.

Judge: Did you obtain this evidence illegally? Prosecution: Yes we did, your honor. Judge: Okay, trial on that starts Monday.

No...you'll have to legally make it so the exclusionary rule is not a defense...i.e, the number of times that this is even brought up will inevitably diminish to 0. Admittedly, it does exist, but the legal system tries it damnest to remove gray areas. At the very least, you will need a legal test to prove that the evidence was not manufactured. You know of any?

It's still evidence, just less credible evidence. Hopefully the prosecutor has other evidence as well.

It could also be the case that it's evidence that was collected by someone who didn't commit the crime, but would currently be excluded by the fruit of the poisoned tree doctrine.

The only proof you have that it IS evidence is the word of someone who you know is willing to break the rules to secure a conviction.

Sure, and that is an argument you can make in court after the evidence has been submitted.

I thought an evidence was an objective piece of data, not someone's word.

An objective piece of data like what? A digital photo? A network traffic log? A printed photograph? A phone call recording?

These are _all_ based on someone's word, in a world of Photoshop, text editors, hex editors, scanners and printers, voice synthesis, etc.

The credibility of the police is usually not the main basis of assessing evidence. It's not really that often that the authenticity of evidence is called into question at all. But sure, it could happend.

We are talking about them breaking the law. The reason there credibility usually isn't questioned is because they know that if they do that the evidence will be rejected so they are compelled to be honest. Once that is out why wouldn't they be questioned they are proving a willingness to do something illegal to get a conviction. Manufacturing evidence isn't unbelievable at that point.

I don't see that happening. Maybe just the child pornographer and 10 innocent black men.

> In general if a criminal goes free despite having evidence against him just because the evidence was not obtained legally ... it sounds rather wrong to me.

Then you are terribly shortsighted. It is "innocent until proven" guilty" for many very good reasons. We have only the word of the government that this man is guilty.

The government has ALL the cards and power, the innocent need protection from it more than we need to punish the guilty.

The accused aren't geniuses; the fact that the government didn't build a solid case against him with physical evidence, wiretaps, keyloggers, etc. means he really wasn't that important. The fact that they have such a high profile suspect and can't make the case against him without a fishing expedition makes me VERY suspicious.

The fact that they are willing to drop the case makes me wonder how much of what they have is induced, entrapped, or outright fabricated.

I said "in general" for a reason.

I'm not talking about _this_ particular case. (I'm not sure that accessing a dubious website is in itself a crime; obviously the police accessed the site too).

Presumably the police _can_ prove it, but the court simply refuses to even _see_ the evidence.

> Presumably the police _can_ prove it, but the court simply refuses to even _see_ the evidence.

Then you are required to assume that the police CANNOT prove it.

I have several system administrator friends who have actually dealt with CP on their systems. Every single time it was discovered to have been planted by the FBI attempting to fish for pervs.

So, yeah, I'm gonna give the accused a whopping benefit of the doubt. CP is such a hot button issue and so amazingly rare that I always assume that the government or its agents are up to something nefarious first and that someone is a despicable human being second.

Perhaps my Bayesian prior is wrong, but I kinda doubt it.

> In general if a criminal goes free despite having evidence against him just because the evidence was not obtained legally

So does the investigation agency who broke the law.

I think most people would agree with that statement. But how do we decide if they are a criminal in the first place? Therein lies the rub.

It's called the Rule of Law, as in it's the Law that Rules this land. Nobody is supposed to be above it, despite evidence to the contrary in US politics.

I think it's part of a general principle of making evidence be "clean". A huge paper trail, specific needs to define how the evidence was gotten, etc. All of these make it much harder to do things like forge evidence.

Evidence gotten through illegal means also get a lot of doubt just by default. Imagine a police officer paying somebody to steal evidence for them. The person now how has an incentive to forge evidence.

An important detail of this system is that evidence brought to the table cannot be trusted without a transparent system. Defendants will almost always contest evidence, but this system makes that argument hold a lot less water.

(There's still the issue that police might not be interested in collecting evidence that goes against a prosecutor's case. Don't know how that's solved)

if the law enforcement is not clean, then who would be?

Then I would encourage to get yourself over to your local community college and learn why things are the way they are in the legal system. You'll spend a fair amount of time talking about the different schools of thought on law in what law is and is supposed to do. First of all, you need a conviction or a confession to call him a criminal. This, or any other case, has nothing to do with any _one_ person or party. It has everything to do with _everyone_ else. You're not seeing the lasting consequences beyond The People v. Random Pedo. To be honest, society doesn't really need your input on how law should work if your only criteria to strip someone of their freedom or to execute them is whether or not one has been accused. You'd function more appropriately in 17th century colonial Massachusetts. The exclusionary rule in this country has only existed in its (mostly) current form since 1920, but has been a legal concept for many centuries. The main question to be answered in Silverthorne Lumber Co. v. United States involved the applications of 4th amendment. In general, if our system of law allows for derivatives which are illegal obtained then you have no need for the 4th amendment protection. I shouldn't need to tell you what happens when militarized drug agencies execute a no-knock warrant on the wrong house. I shouldn't need to tell you what happens when a sheriff beats the shit out of a guy they picked up off the street to force a confession. I shouldn't need to tell you how this could be used to destroy the life or credibility of a political opponent, or to shutup a media organization. I shouldn't have to tell you that this would be a grand method for imprisoning more minorities on the basis of race, or that this would all but ensure a fair trial is impossible. But...your argument is about _legitimate_ evidence obtained illegally. I may have to tell you that if your solution were to be implemented then you'll need to tell the rest of us how we go about prosecuting the prosecution. Who's going to bring that lawsuit against them? And you may have to tell the rest of us what the legal test is to ensure that illegally obtained evidence is also not _manufactured_ evidence, because insofar as I am aware, no such legal test exists.

I don't completely understand how demonstrating the chain of investigation should require the disclosure of the vulnerability. I really hope the execution of the law isn't going to depend on 12 random people understanding the finer points of cryptanalysis.

I wish there were some way to get a private but independent verification that X technique allowed IP addresses to be collected if they did action Y (e.g. logging onto playpen). Then the investigation could be questioned without the government disclosing their vulnerability, which seems like a standard we wouldn't hold most to. If someone were on trial for copyright infringement could they subponea for the full source of FairPlay as a coercion to get the case dropped?

Being digital data, I'm assuming you have to be able to explain where the data was sitting, posit a reason for the data to exist there at all (edit: or some context around the data) and describe your method of obtaining the data.

Otherwise you could just create the data. With the above, you still can - it does however allow for inconsistencies to arise, and when they do a closer inspection can be conducted. (IANAL)

"Private" means "unavailable to the defendant" in this case which runs counter to some of the deepest roots of our justice system.

You do not get to convict someone based on evidence that can't be entered at trial. Some third party saying "oh yeah we totally verified it" is not enough.

One could also guess that they don't have as much confidence in the accuracy of their evidence-gathering method as they'd like. If they have to show how they gathered that evidence, and the defense is able to introduce enough doubt that their method targeted the right person, it would torpedo all related cases, and hurt the prosecution's credibility in future cases.

We're taking it as a given that this guy (and the others) actually committed the crime, but the prosecution cannot actually prove that without allowing us to verify that the evidence gathered actually comes from a place of fact.

I wouldn't jump to speculating the technique was illegal. The fact of the matter is that in a criminal trial the US Constitution gives those being prosecuted the right to face their accuser as well as examine tools the accuser used in an investigation. In this particular case the software which presumably uncovered their identity can come under scrutiny from the defense in the form of a source-code review. Without question the defense has the right to a source code review in an attempt to understand how the solution works and if it is trustworthy. Because it's the primary driver of the case and there is no case without it, the choice by the prosecution is to either hand over the source-code or drop the case. In this particular case they are valuing the closed source more than the criminal prosecution, likely to assure an analysis isn't leaked and provided to those who could patch against whatever exploit they are using.

If the site mentioned in the article had 150,000 members as they say, that's a lot of people to lock up for years for pointing a browser at a url.

Considering it was a Tor site, it's not like a user who didn't know what they were doing could end up there on accident. Also I'm not sure users means "only browsed the website" (could mean they had a profile, etc.).

EDIT: It appears that they did do more than just visit the site: https://news.ycombinator.com/item?id=13799213

> If the site mentioned in the article had 150,000 members as they say, that's a lot of people to lock up for years for pointing a browser at a url.

You don't stumble on "kiddy stuff" on TOR accidentally. You actively seek it. 150.000 is a lot of pedos in the wild.

Lots of people visit links on the clear web showing illegal and horrific acts. If the full extent of a crime is filling out an http form with a fake email to see some pictures and video, it's still not clear that this is so far beyond the pale that years of prison for hundreds of thousands of people is the best solution.

I don't quite get why it is illegal.

Banning production I understand fully. But viewing, under the argument it promotes it? The TOR developers have done far more to promote it than any single viewer, especially if we consider those who never paid any money and use ad blockers. Would we say the TOR developers should face some sort of punishment for not working with governments to develop a version that works to stop this (such as integrating something which causes it to drop off the TOR network as soon as it detects an illegal file, probably biases the algorithm against false positives)?

At the very least, I think they should be using all the resources to go after producers and those paying for it.

It could also be because their method doesn't really prove who the individual really was...

Apparently "innocent until proven otherwise" also doesn't resemble "How the world should be" in this comment.

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