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Comment by mjn | Hacker News Reader

There is also an issue of things that are individually expected turning into an unexpected, and possibly undesired, result through technologically enabled cross-referencing.

For example, if you combine face-recognition, driver's license databases, and feeds from public security cameras, you can (albeit currently with quite a bit of error) track someone's movements around town. All of the individual components are reasonably expected. But people traditionally don't expect the result: the state having a map of everywhere they went today, without having to get a warrant to attach a tracking device or to subpoena mobile-phone records.

Whether this should matter legally seems a bit up in the air. The position that it should is sometimes called the "mosaic theory" of the 4th amendment: http://www.michiganlawreview.org/assets/pdfs/111/3/Kerr.pdf

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I do not like that theory of the fourth amendment. I am neither lawyer nor historian, but what I remember of the purpose was to prevent the state using the police as a means of harassment, as the British did before our independence. (Hence why seizure was highlighted.) Some of the other amendments, like the third, were also to remedy specific, recent abuses. Which is not to dispute the fourth's broader (and good) applicability, but I would wonder what the justification is for broadening it that much.

The purpose of the amendment is not to give criminals a certain minimum chance of avoiding detection by making it hard to collect evidence. That is just an incidental result. So long as such monitoring is not used as a means to stifle legal dissent, I have no objection to it.

My 2c. That said, I'm not a strict constitutionalist. The law should reflect the good of the people now, not just what guys thought a long time ago. If it does more harm than good, the mosaic theory maybe should prevail.

>what I remember of the purpose was to prevent the state using the police as a means of harassment, as the British did before our independence.

The problem in this case is that allowing this type of surveillance allows the state to use the prosecutor's office as a means of harassment. It allows the state to choose who to prosecute first and then go through the intended defendant's recorded life history in order to find the offense. And since no one is a saint (and no one knows all of the laws), the result is that whether anyone goes to prison or not becomes solely a matter of prosecutorial discretion, since everyone is guilty of something and now they can prove it.

There are plenty of things that the state could use to make a person's life miserable if it was malicious. To me, that some capability could be used that way is insufficient reason to restrict the state from the capability.

>To me, that some capability could be used that way is insufficient reason to restrict the state from the capability.

Forgive me for thinking that sounds a little naive. That argument could be used to support the repeal of the entire bill of rights and the separation of powers.

Absolute power corrupts absolutely. The whole idea of a constitution is to place restrictions on government power in order to limit as much as possible the amount of damage that can occur when the government is corrupt or incompetent. There are comparatively huge advantages to a government run by a competent Benevolent Dictator. The problem is that in practice dictators tend to be not so benevolent.

I think you have misread me. The protections in the bill of rights protect against actions which inherently overreach, because their violation had a people directly. Passive tracking of people only overreaches if it is used to harm.

"Because their violation harms people directly." is what I meant here.

>The protections in the bill of rights protect against actions which inherently overreach, because their violation harms people directly.

Do they? Suppose we pass a law that says the police don't need any probable cause to record all your phone calls, bug your home and office and come into your house and read or copy all your personal documents, as long as they don't inconvenience you or deprive you of your papers. Pretty sure that would violate the Fourth Amendment, even though the harm there is substantially identical to the harm here. Which is theoretically none, assuming the police only target evildoers and never do anything nefarious with the information, etc.

Likewise the First Amendment protection for anonymous speech. Having to disclose your identity to the government before you can communicate with anyone will only cause harm if the government does something untoward with the information, right? But the First Amendment doesn't allow them to require it, because the government could be doing something wrong. We even go so far as to say that the government can't demand the information because people may fear the government doing something wrong (chilling effects), and be afraid to say certain things as a result, even if the government never actually does anything with the information.

Agreed, it would violate the fourth amendment. At the time it was written, though, there was no non-invasive way to search someone's effects. The purpose at the time was to prevent searches as a means of harassment, and they did not guess that there would someday be a mechanism by which you could search without imposing. In any case, there is also a component of the probability of misuse (at least, in the way I judge these sorts of things).

Your example of the first amendment is less compelling. The mere requirement to convey your identity is an imposition.

> So long as such monitoring is not used as a means to stifle legal dissent, I have no objection to it.

I believe waiting until it is used to overtly stifle legal dissent to object is foolish.

I believe that assuming new capabilities will be used in a particular way has historically proven unreliable. The United States already has broad tracking capability and has not yet used it to stifle dissent (at least, not systematically). What justifies your belief that slightly broader monitoring capability will be used in that fashion?

I don't know that there's any evidence that says directly it will be. What I believe is that the country is becoming less free as time goes on and I think that means at some point they will use the data for dissent stifling. I don't think they need to now because the bread and circuses are good enough.

That is a very good point, and the result of that feeds back into the prosecutor's fallacy. If you have plotted the routes of a million people traveling through a city, and there is an incident (let's say a bombing at a stadium), then you could "cold hit" someone from that database of routes to find someone with a movement pattern that appears to suspiciously correlate with the bombing, but is in fact just one of a few hundred people with similar movement patterns (only one or two of whom were actually involved).

Then you link that to the person having demonstrated at a couple of, say, animal rights protests, get a few neighbors who say that the guy was "weird" and "acted strangely", and bam - you have what looks like an open and shut case of a radical animal liberation terrorist, but is in fact just a vegan who happened to pick up some gardening supplies at a Home Depot and a Pike's Nursery two days before going to a baseball game.

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