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» The Ornery American Forum » General Comments » 4th amendment or 5th amendment pick one

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Author Topic: 4th amendment or 5th amendment pick one
LetterRip
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This seems bizarre to me,

the government is claiming, and a judge is agreeing ,that you can't challenge an illegal search unless you admit ownership of the property that the illegal search was conducted against.

quote:
"Thus, whatever methods used—lawful or otherwise—are beyond this court's purview," the judge ruled. [PDF]


FURTHER READING


THE “HE SAID, SHE SAID” OF HOW THE FBI FOUND SILK ROAD’S SERVERS
Lawyer for accused drug website mastermind says FBI explanation is "implausible."
She said that Ulbricht denies any connection to the servers and hence has not demonstrated any association to them that would give him the right to challenge the government's methods of seizing the servers. (The government said no warrant was necessary because the servers were overseas.) The judge, however, said that Ulbricht could have claimed a connection to the servers so he could challenge the search.
"The requirement to establish a personal privacy interest might appear to place Ulbricht in a catch-22: if the Government must prove any connection between himself and Silk Road, requiring him to concede such a connection to establish his standing the searches and seizures at issue could be perceived as unfair. But as Ulbricht surely knows, this is not the first court, nor is he the first defendant, to raise such an issue," the judge wrote.

So you either can have protection against an illegal search or the right against self incrimination, but not both.

http://arstechnica.com/tech-policy/2014/10/the-catch-22-predicament-of-silk-road-defendant-ross-ulbricht

[ October 13, 2014, 07:38 PM: Message edited by: LetterRip ]

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yossarian22c
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On a related note. The FBI doesn't think your data should be encrypted to protect it from hackers(or the FBI).

quote:

Federal Bureau of Investigation Director James Comey told reporters Thursday that the agency is talking to both companies [Apple/Google] to raise concerns that their privacy efforts could hinder criminal investigations.
...
Apple last week touted that with release of its latest operating system iOS8, it no longer could bypass the smartphone user passwords. "So it's not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8," Apple said in a blog post.
...
Comey said that he was "very concerned" that the companies were "marketing something expressly to allow people to place themselves above the law."

link


Basic level encryption that protects users against hackers is "placing yourself above the law." That is a pretty extreme statement. From what I have read about the encryption it actually shouldn't be that hard to circumvent if you are actually holding the device. The standard lockout for smartphones is a 4 digit code* which means if the FBI gets a warrant for the phone then it would only take someone a couple hours to try all the combinations to unlock the device and read the contents. The big change is that the FBI can no longer secretly obtain the data by compelling Apple or Google with a warrant.

*Unless they are requiring/allowing longer codes on the new models?

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stilesbn
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If there is no connection between him and the servers how can they use the evidence against him? And if they find a connection can't he then file to suppress the evidence since the gov't has established that he owns the servers now?
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scifibum
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I think the court is requiring him to choose now whether to claim a privacy interest - they aren't going to let him have his cake and eat it too.
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MattP
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quote:
The standard lockout for smartphones is a 4 digit code* which means if the FBI gets a warrant for the phone then it would only take someone a couple hours to try all the combinations to unlock the device and read the contents. The big change is that the FBI can no longer secretly obtain the data by compelling Apple or Google with a warrant.
Most devices do a hard lock after a few failed attempts, then requiring access through a secondary method like an email reset. It's possible for the security policy on a device to actually clear all data after a number of unsuccessful unlock attempts.
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scifibum
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Strong encryption has been available for a long time, so anyone who wants to store data and prevent anyone else from ever accessing it could certainly do so. It just requires a little bit of work to set up and some discipline to keep it secure.

I guess the new problem from the FBI's perspective is that people who aren't even trying very hard to conceal information will now be able to conceal it.

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Seriati
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quote:
Originally posted by LetterRip:
So you either can have protection against an illegal search or the right against self incrimination, but not both.

It's not as bizarre as you imply. What is your standing to object to the search of someone else's property? If no one claims the servers as their own, then are they not ownerless? Someone has a privacy right, no doubt, but it's not a right that can be enforceable by the general public on a specific piece of property, only the owner.
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Rafi
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Interesting question and something I've been meaning to post about. As a result of my chosen lifestyle, I no longer enjoy the protection of the 4th amendment and my home can be searched by agents of the state for any reason at any time. In fact, I can have my home searched and everything inside it for no reason at all other than the whim of state inspectors. A warrant is not required. Anything illegal found would be fully admissible and my home and all belongings confiscated and there nothing I could do about it.
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scifibum
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You're running a state-licensed in home day care?
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Rafi
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No. [LOL]

I live on a sailboat. Under laws established in the mid 1700's, I can be boarded and inspected at any time. I have had this done a couple of times and anyone living on their boat will experience it sooner or later. Typically it will be the coast guard but it's not limited to them.

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msquared
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In Rafi's case I think they normally call it a safety inspection, but the effect is the same.

msquared

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Rafi
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Of the 2 times I've been boarded, one was a "safety inspection" where the primary focus was on my documentation and making sure I didn't flush the heads (toilets for you landlubbers) overboard - that's a $10,000 fine. The other was for a suspected smuggler that was in the area, about half a dozen boats fitting the description and area were boarded. I don't think they ever got him. Both time it was the coast guard but I know the DEA as well as police have boarded other boats. There have been pretty serious questions raised in some recent heavily armed, late night boardings in a couple of marinas that seemed a little over the top. Teams in full tactical gear armed with automatic weapons jumping on boats in the middle of the night and just going down the pier from boat to boat. It's happened. Imagine if they did that in your neighborhood.

Both time I was boarded, the coasters were great. Very polite and professional. The others I describe above scared the hell out of people.

The thing that amazes me is how my 4th amendment rights are repealed by simply living on a boat.

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msquared
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Rafi

Has anyone ever explained how that situation came about? I am sure it probably started back in the 1800's or something, I would guess. As an aside, this issue came up a little bit in the Tom Clancy book Without Remorse. Mr. Clark/Kelly is boarded by the Coast Guard. He is friendly with them, but they still mention that they really do not need a reason other than "Safety Inspection".

msquared

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Rafi
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Sorry - I have actually been out at sailing around and out of touch, part of the fun of living on a boat. [Wink]

quote:
Title 14 section 89 of the United States Code authorizes the U.S. Coast Guard to board vessels subject to the jurisdiction of the United States, anytime, any place upon the high seas and upon any waterway over which the United States has jurisdiction, to make inquires, examinations, inspections, searches, seizures, and arrests. The U.S. Coast Guard does not require a warrant to conduct search, seizures, arrests over any United States Waterway or high seas. The U.S. Coast Guard also have full legal law enforcement power on any land under the control of the United States, as needed to complete any mission.
This authority was granted under the Revenue Service Act of 1790 to give the Revenue Cutter Service (aka Revenue-Marine and now known as Coast Guard) the authority to enforce tariff laws as a way to fund the nation. Getting search warrants back in that day in time to put smugglers in check was literally impossible so that's how Congress got around it. It remains in force to this day despite the instant communications we have available to us.

This authority is used daily by the Coast Guard. Typically under the guise of a "safety inspection" but that's not necessary. They don't actually need any reason at all to enter my home and search it - and anything they find is fully admissible. Fines, jail time, all can result from whatever they find should it be illegal.

As I said, I've been boarded twice and both times the Coast Guard guys were very nice and the safety inspection was exactly that (counting life vests, etc). The smuggler one ended very quickly as it was obvious I wasn't the right guy, they were on board less than 5 minutes and very cool about the whole thing.

Their professionalism and many of the great services they provide, while valued, should not trump the 4th amendment if you ask me. Not in a day and age when warrants can be obtained within minutes while a CG boat or aircraft can easily keep me under surveillance should I be suspected of violating a law. B

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