From: Black Unicorn <unicorn@schloss.li>
Date: Sun, 18 Aug 1996 05:56:32 +0800
To: Jim Choate <ravage@einstein.ssz.com>
Subject: Re: [NOISE] "X-Ray Gun" for imperceptible searches (fwd)
In-Reply-To: <199608170314.WAA11946@einstein>
Message-ID: <Pine.SUN.3.94.960817151658.4248A-100000@polaris>
MIME-Version: 1.0
Content-Type: text/plain


On Fri, 16 Aug 1996, Jim Choate wrote:


[Constitutional Arguments Deleted]

> > And, I might add, there is a different standard for voice communications
> > however carried.  The heat from a indoor pot garden is a different matter,
> > and incidently, the matter on which the question was presented.
> 
> I have to disagree. The issue is not what is being carried on the medium but
> rather can I measure that medium without a warrant if I am a officer of the
> court or empowered by law as the police. Implicit in this question is the
> fact that my goal is to gather information to be presented to a court for
> legal action against the party being monitored. This was a strawman that the
> court fell for, the defence attorney didn't understand the technology either.
>
> To argue that if I measure some quantity and no modulation is present I may
> present that as evidence, but if modulation is present then I need a warrant
> to even measure it is ludicrous and screams 'alterior motive'. I would say
> that the argument of the state of the light (ie on/off) is modulation and
> therefore may be extended to limit unwarranted measurement.

Then one reaches the absolutely unteniable position that the light
reflected off the criminal while he shoots the victim 5 times in the chest
in cold blood cannot be intercepted by a law enforcement officer (or if we
extend your citizen = law enforcement officer analogy, also a citizen)
without a warrant.
 
> So, all I need to do is to modulate the IR lamps with a commen radio. Then
> they can watch all they want with cameras and such. No warrant, no evidence.
> Do you figure X-10 modulation would qualify? Wouldn't the on/off caused by
> the AC power qualify as modulation of the light?

The crux of the argument is the "expectation of privacy" reasoning laid
down in e.g., Katz v. U.S., 389 U.S. 347 (1967) ("What a person knowingly
exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection.... But what he seeks to preserve as private,
even in an area accessible to the public, may be constitutionally
protected."); California v. Greenwood, 486 U.S. 35 (1988); Smith v.
Maryland, 442 U.S. 735 (1979) ("A person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties.") and
Florida v. Riley, 488 U.S. 445 (1989) (Involving the warrantless "search"
of a greenhouse from a helocopter 400 feet above).

All the "but it's modulated" arguments in the world mean nothing.

I understand your position, unfortunately the Supreme Court simply does
not agree with you.

> > > States such as N. Carolina (per extension via the 14th) should be 
> > > prohibited from regulating or otherwise controlling possesion and use
> > > of radar detectors (in this case) which are currently illegal for
> > > private persons to operate.
> > 
> > There is the additional matter of the obstruction of justice issues..
> 
> Obstruction of what justice? The goal is to keep the speed down so people
> are not killed. It is NOT to give the police a means to gather operating
> funds. If the police were honest in this pursuit they would sit on the side
> of the road radaring to their hearts content as long as their lights were on
> indicating they were actively on duty while everyone else zoomed along
> listening to their detectors buzz. Yes, we would have much less money from
> tickets but we would have many more living people paying taxes as well. I
> also suspect that if this were implimented it would take many fewer police
> to regulate traffic further reducing the needs for money. The law was
> specificaly and openly put in place because the radar detector decreased the
> chances of the police from catching and ticketing you, somewhat different
> than enforcing public safety.

Exactly, so the law prevented anyone who felt like it from breaking the
law with impunity because of a little box.  That's obstruction of justice.
"Well sure I slow down when I see a police officer, so I'm obeying the
law."

You also have to be carefuly about arguing for or against the legitimacy
of the law intermixed with arguments about the legitimacy of enforcement.

> The police in a democratic society should never be allowed to skulk around
> monitoring the populace.

Well, this position is highly subjective and so broad as to be a bit
suspect.  What about beat cops?  I could read the above to prohibit them.

Sit around and wait until called, is that your position?

I'm not saying it's reasonable or unreasonable, just a bit extreme.

> Cops hiding in the bushes and other such tactics are not law enforcement but
> rather state sanctioned theft. Gives 'highwayman' a whole new slant.

Again, this is subjective.  I don't much like speed enforcement either,
but one could as easly say "cops staking out a suspected site of a robbery
and hiding in vans or other such tactics are not law enforcement."

> The argument that by allowing such activity the police are prohibited from
> catching criminals ignores the fact that the police are firstly enforced
> with public safety. Their primary job is to PREVENT the incident within
> their operating parameters and only secondarily to apprehend participants
> after the fact.

Well, I think this ignores their anticipated deterrant effect, which goes
directly to public safety, but this is going way afield.

> Again, a strawman the courts and lots of others have swallowed.
> 
> > >I< tend to agree with you, but I see the arguments on the other side as
> > well.
> 
> I also see the other side, I believe the Constitutional approach that I
> advocate can meet and defeat any argument they may present PROVIDED the
> court does not have a alterior motive of sustaining the status quo but
> rather an open goal of enforcing the Constitution for life, liberty, and the
> pursuit of happiness.

Well, I tend to side with you, believe it or not, but your position is a
bit idealistic.  One must also approach the practical needs of law and
order.

> I believe that is a rare find indeed. Don't get me wrong. I estimate the
> chance of my success to win support, let alone actualy getting any of it
> implimented, as pretty close to nil. But if I don't discuss it on public
> forums such as this then who else will?

Point taken.

> > > If the police don't need a warrant to
> > > collect information then citizens are equaly able to recieve that
> > > information as well.
> > 
> > How EXACTLY does this follow?
> 
> Because courts, not police are empowered to search. Constitutionaly a police
> officer may detain you (by local law) but he may NOT search you until presented
> to a magistrate. This is what was meant by 'fair and speedy trial'. 

The above is incorrect.  There are MANY instances where police are
empowered to affect warrentless searches.

> > > Since the above ruling states that as long as the
> > > emissions are eminating from the site and the reception takes place
> > > other than at the site (in this case, being inside the police car)
> > > , perhaps along a public highway, then no privacy is involved. This
> > > means that citizens have a right, by extension, to know when they are
> > > being beamed by radar.
> > 
> > Again, you need to distinguish law enforcement purposes and private
> > purposes.
> 
> Constitutionaly there is no distinction. Police are citizens also.

State action and private action, a very serious and bright line
distinction exists.

> > > This same chain of logic can be extended to cell phones and such as
> > > well.
> > 
> > And yet you need a warrant to intercept cell phone conversation.
> 
> Exactly, and by extension you should need a warrant to monitor ANY other
> form of EM radiation when acting as a officer of the court collecting
> information or evidence relating to possible or existing proceedings.

Your argument amounts to the existance of bright line constitutionally
protected "areas."  This argument is an interesting one but it poses many
many practical problems and has been explicitly rejected by the Supreme
Court.

> > > This connection is even clearer when one realizes that the only difference
> > > between IR and your cell phone eminations is frequency. The intermediate
> > > vector boson in both cases is a photon.
> > 
> > And the fact that cellphones carry voice communications.
> 
> Is irrelevant. You can't know that fact without first measuring the medium.
> Sorta defeats the whole purpose. You have to measure it to determine if you
> can measure it, stupid or premeditated misrepresentation.

You must remember, the only sanction for violating the rule is exclusion.
Police can monitor it all they like, they just can present it as evidence.
So, if they were to monitor it and discover that it contained no
modulation, what's the harm?  If they discover modulation, they go for a
warrant.

> > > It is similar to arresting somebody for wearing a blue shirt but letting
> > > the person wearing the red shirt go free.
> > 
> > ANd having the blue shirt say "kill the president" maybe would even out
> > your example.
> 
> How? It certainly raises the spectre of 'strawman'. Attempting to change the
> subject to 'freedom of speech' is not a respectable tactic. What is on the
> shirt is irrelevant.

No, it was pointing out the difference between a communication and a blank
shirt.  What is on the shirt may be irrelevant, but the fact that it says
something is not.

>                                                   Jim Choate

In any event, I propose we move this to private mail.

--
I hate lightning - finger for public key - Vote Monarchist
unicorn@schloss.li