Thursday, March 24, 2016

The ongoing war on cameras and freedom: It's the Sixth Amendment, stupid.

Continue tracking this! The War on Cameras Just Went Code Red: It is one topic area where true citizen militance is called for. 

Elsewhere I’ve already discussed how a U.S. District Court judge ruled against the right to film cops. Yes, wagers are strong that this ruling may be overturned. Fields vs. City of Philadephia concerns two people photographing and filming the police in public areas. Each had their cameras confiscated.

As I’ve long said, few civil liberties matters are more important. (Indeed, major steps toward establishing this citizen right meant that 2013 was an important milestone in U.S. civil liberties.) But even the plaintiffs in this case -- paladins who are fighting for our right to see -- have been doing it all wrong! Their point of law is overly narrow because it seems the only Amendments from the Bill of Rights that anyone seems to remember, anymore, are the first and second and maybe the fifth.

But in this case, the judge’s ruling can be proved desperately and blatantly wrong by referring to one of my favorite, under appreciated amendments… the absolutely vital and powerful Sixth

The Sixth Amendment is the one that empowers citizens to aggressively demand to see.  To confront their accusers, to compel witnesses on their own behalf and to have access to any information that might exculpate them from a crime.

Let's be clear about what is at stake.  In any conflict between a citizen and the State, there is such a vast disparity of power that only one weapon can possibly level the field and give an innocent person a fighting chance. That weapon is The Truth. It is necessary and should be entirely sufficient. The whole and entire purpose of the Sixth Amendment is to give innocent citizens a fighting chance to use the truth in their own defense. 

It is simple, straightforward and obvious to extend the 6th to a citizen's right to (in a manner that does not interfere) record interactions with police. By expanding the number and variety and verifiable quality of "witnesses," such recordings enhance the ability of citizens to compel exculpatory witnesses in their own defense. When the mighty act to suppress such acts of witnessing, they are reducing the very resource the Sixth gives us a right to use. See where I go into this, elsewhere.

It is shameful... simply shameful... that the attorneys fighting these court battles have missed this key argument, obsessing as they have on just the First Amendment. Someone needs to get through to them. 

Yes, the First Amendment vitally protects your right to speak. 

But the Sixth protects your right to exist.

== The Cameras! ==

About a third of police departments in the United States have started to use body cameras, and they typically have almost complete control over the programs. Police departments decide when cameras should be rolling, how long the footage is stored, who gets to see it and how it can be used in the future.  This article - The Real Problem with Police Video - is perhaps too one-sided… there are some solid arguments for process restraint in releasing raw footage.  But the core point is a valid one… that police body and dash cams should be almost-always-on and deposit their footage directly to safe caches that are under neutral control.

Unlike many civil libertarians, I do not demand instant access to public and press! So long as some due process - even one that is slow and careful - ensures eventual transparency, then “eventual” should be good enough. Good enough to deter most bad behavior, good enough to ensure convictions of the blatantly guilty, and good enough to allow defense attorneys access to exculpatory evidence.  Instant access to the press is of much lower concern to me. "Eventual" will suffice to get 99% of the good from cop-cams.

It is protecting the data that must be ensured.  That alone will make clear to all good cops one essential need, in their own best-interests: “Hey, we better do something about our own thugs on the force, asap.” Indeed, as predicted long ago in The Transparent Society the problem of police tampering with cameras has an inherent solution… which is more cameras. 

Take this recent example - one of many: “In May, Burger King district manager Jay Darshane accused officers of deleting the security footage (of the Laquan McDonald shooting) after spending over three hours in the fast food restaurant on the night of the shooting. According to Darshane, the video equipment was working properly, but 86 minutes of footage, from 9:13 p.m. to 10:39 p.m., disappeared after the officers left. We had no idea they were going to sit there and delete files,” Darshane said. “I mean we were just trying to help the police officers.”

Unable to clearly explain why the 86 minutes disappeared, Police Supt. Garry McCarthy blamed the missing files on technical difficulties. But “NBC5 obtained screenshots taken from a surveillance video inside Burger King on the night of McDonald’s death. The photos appear to show officers using the computer console that recorded the fatal shooting.”

Good cops.  You must make examples of the bad ones.  Omerto is over. And we will catch this crap, more and more. It’s time.


== Liberal activists and lazy thinking ==

Indolent and reflexive thinking is rife in all directions (except those who have read The Transparent Society ;-)  For example: why is there so little acknowledgement that technology helped to make Black Lives Matter come alive? 

Demand more tech! Chant it! Urkle should be as big a symbol as Rodney King. 

The very first piece of tech that's needed? Simple clips that let folks pin cell phones to their shirts, so they can keep recording while showing cops that their hands are empty! Why have we not seen those clips handed out at every march or rally or to every ghetto youth?  Some things truly ought to be obvious.

Oh. This interactive website shows the range of state laws on police body cams: Some states restrict public access to recordings, others require all-party consent, while some states dictate when and where cameras or audio can be used:




== Saving Liberty and Privacy ==

Commercial companies are now specializing in selling hacking services to police agencies and governments, eager for side door and backdoor methods of getting around encryption.  While this story is disturbing on many levels, it also shows just how fragile are the quasi-religious hosannahs to encryption that are sung, almost across the board, by would be liberty defenders, ranging from Anonymous to the Electronic Frontier Foundation to Edward Snowden.  

Oh, I will credit some of them with good intent.  Indeed, my own dread of Big Brother is no less impassioned!  No, I am simply amazed that otherwise smart people can actually convince themselves that commonfolk will ever play a game of shrouds and shadows as well as can elites of government, commerce, criminality, technocracy or adversary nations. Refutations come every single week, in an endless litany of (surprise!) leaks.

Liberty can be preserved.  But we must start by asking “how did we get the freedoms we already have?”  That simple question reveals a basic truth.  We did not get them by cowering, or following todays reflexive cry that “everybody should hide!”  

We got it all through open assertive citizenship.  By demanding to supervise.  To see.

And finally... pulling back a bit...

== The abstraction: Liberty is primary. Privacy is desirable, but contingent ==

Look at how our definition of "privacy" changes from generation to generation, even yearly.  That malleability is indicative of a CONTINGENT right... one that is important to free humans, but that each generation can redefine to suit its own needs.  Like the right to property.  Both privacy and property are implicitly  supported in the US Constitution, but only in very vague, general terms, leaving each generation free to redefine them.

PRIMARY rights are different. They are rights that we cannot allow any generation or set of leaders to dilute.  Because once they are damaged we may never get them back.  These are the rights that allow us to knowingly argue about the contingent rights! Primary rights empower us to back out of a mistake.

What rights are paramount and primary? The freedom of citizens to know most of what's going on.  The freedom then to openly and in confident safety argue!  Freedom of knowledge and of speech are fiercely and explicitly and repeatedly defended in the U.S. Constitution, because almost any constraint - once rationalized - can lead to more, then more. Then a return to the brutally stupid rule by oligarchy that ruined almost every other society.

Our problem is simple: those who place privacy on a pedestal equal to freedom of knowledge and speech are making a huge error. We can have some privacy!  But only if freedom comes first.

Alas, many of the measures that are proposed, to "save privacy" will shut information that we'll need, in order to stay free. 

62 comments:

donzelion said...

One heads off to read a certain collection of short stories (which will probably be the only dead-tree book I buy this year), and misses a chance to respond to an interesting turn in the "equality" discussion from earlier this week. Alas...

Luckily, we've gone through the 6th Amendment pretty thoroughly already. Arguments about whether the 6th extends as a basis for the rights Dr. Brin wants to protect are objectively testable - a court will reach a decision, and either accept or reject an interpretation.

Perhaps a better approach is to try to contrive what the law "should" be (rather than asserting that the lawyers are unprofessionally for trying their best to argue what the law actually "is") - because we do have processes available to change the law. If a "right to record" is important (and there are many good reasons it is important), then drafting an amendment that achieves that objective - or amending state laws to make the case - is a better use of energy.

David Brin said...

No court will issue such a ruling unless dumbass lawyers actually notice that it is an argument that's plausible and worth asserting. I have yet to see much sign that graduates of prestigious law schools and "constitutional scholars" are even aware that the Sixth exists, let alone its vital importance in enabling citizens to survive conflicts with the state.

donzelion said...

returning to yesterday, and unfinished business with various formulations of equality -

Dr. Brin wrote: "donzel your arguments against inequality of outcome belong on the table and have some merit… but you know very well I could put a lot of evidence on the other side."

My point is that the assumption that there must be "winners and losers" is at best a partial account of how competition actually works, and how most of the most competitive practitioners operate in their field.

At a very gross level, one could represent scientists as "competing with one another" to develop the "best model." But most scientists compete not with one another, but against a puzzle or a question. They may compete to obtain the best outcome, but they have no interest in sabotaging their rival's grants - or cutting funding so that only "winners" benefit. The point of competition within science is to get as many scientists into the game as possible, to fund as many different approaches as show promise: equality of outcome drives the process, ensuring many contributors are able to participate in the game.

Similarly, with Gates v. Jobs - a battle Jobs LOST until Microsoft saved Apple from bankruptcy. Gates did so less from magnanimity, than from fear that the Justice Department would apply equality of outcome leveling to break up Microsoft. Both Windows and Office faced powerful competitors - but the rules favoring equality of outcome create a regime in which many many programmers, engineers, and visionaries could receive immense rewards even if they ultimately "lost" at one point in the competition, simply because by doing what they do, they made things better.

Sport is the best illustration of this in practice: we do not want "winners and losers" nearly as much as we want "good games." Yes, a "good game" may still have its winners and losers, but we apply "equality of outcome" processes to ensure that no single team consists of all the "best" players (even if the players themselves would want it that way).

My point is that competition often benefits from "equality of outcome" rationales. We need scientists playing the 'science' game, and engineers playing the 'software' game, and athletes playing their own games - not just 'winners and losers' - but players who devote themselves to performance, sometimes for the sake of a cash reward, more often, for the sake of realizing personal achievement that will never be acknowledged publicly.

donzelion said...

Dr. Brin - as a graduate of a prestigious law school, I'm pretty sure we're all acquainted with the 6th (some of us more so than others). The lawyers who are driving this at the ACLU are among the best in the country in this space. If they thought they had a solid argument there, they'd make it.

Most of us try to argue what the law actually "is" - if we hang our arguments on what the law 'ought' to be, it's a desperation move when no others can work. That's sort of the rules of competition in the legal field: trying to change the law from what it 'is' through crafty argument is regarded as cheating, much as a scientist altering the results of his observations to better fit a predictive model. I can imagine if the lawyers could cite anything in the law that echoed your position, they'd have done so. If they rely on what the law ought to be, they can invite the judge to agree with them - but he is duty bound to try to rule based on what the law actually is. I don't care for the outcome, but respect the process.

To the extent the 6th Amendment protects our right to exist, it does so primarily and most powerfully by preventing the police from causing us to be forcibly "disappeared" (a la Argentina's dirty war, or similar tactics in most police states). If we are arrested, it affords a number of protections against "cheating" during a criminal trial.

But I believe what you want goes beyond criminal trials. The police are not permanently defendants in a criminal trial where all their conduct is regarded through that lens - they are just doing an important job, for which transparency is important. If control over the use of data is important, that control needs to extend well beyond a criminal context - much as California's Brown Act banned secret meetings by government officials, we need to extend transparency broadly into the regulatory framework (and to the financial arrangements underlying the selection processes for participants in that frame).

LarryHart said...

donzelion:

Sport is the best illustration of this in practice: we do not want "winners and losers" nearly as much as we want "good games." Yes, a "good game" may still have its winners and losers, but we apply "equality of outcome" processes to ensure that no single team consists of all the "best" players (even if the players themselves would want it that way).


I think Dr Brin would consider spreading the good players around to be "equalizing opportunity" for the teams. "Equalizing outcomes" would be mandating that every game end in a tie.

Nonetheless, you make a great point. The goal of the sport is "good games". Rules are occasionally tweaked (i.e., designated hitters, fair catches, shot clock) to make the games more enjoyable than the ruts they otherwise fall into. The equivalent of our economic purists would insist that "the rules are the rules in perpetuity", and that if the rules lead to unentertaining, uninteresting play, that's just the way it is. Which totally puts the cart before the horse.

Same with purists who insist that the economy is a "good" in itself rather than it being a means to facilitate societal good.

donzelion said...

@Larry - "spreading the good players around to be "equalizing opportunity" for the teams. "Equalizing outcomes" would be mandating that every game end in a tie."

He might, but if he did so, the definitional problem becomes inescapable in practice: so long as we do not guarantee "all games end in a tie," every intrusion into the play is 'fair' - even if the processes to equalize the players by forcing some to play for one side and others to play on the other side against their will. The things done to ensure sports team parity would be viewed as oppressive, intrusive 'government' intervention to achieve namby pamby nanny-state 'equality' in many other contexts. Switch ends of the field in a football game? Show me a single business or military that would accept such intrusion! ;-)

"Same with purists who insist that the economy is a "good" in itself rather than it being a means to facilitate societal good."

Concur, and to expand in response to Alfred's post yesterday, the same reasoning applies to evolution as well. It's not that evolution is "good" because there are winners and losers passing on their genes (sorry, Alfred). There is no "ascent of man" toward a superior state from his previous state - there is no 'Platonic ideal' of humanity - only change. We do not derive positive sum benefits from evolution - we merely experience changes (and potentially, increased specialization within one context). If we're to ever experience anything 'good' - it's up to us to make something 'good.'

David Brin said...

Sorry but allowing the police to limit the amount of exculpatory truth that a citizen could then access with the 6th is exactly what is going on. Should the police erect tall curtains at every altercation, so that passersby cannot witness what they are doing inside, to an accused? The accused is thus prevented from having any eyewitnesses he could summon in his own defense. Show us how that is different from banning cameras. Especially when cameras become an accepted and normal part of human vision on any street

LarryHart said...

@donzelion:

There is no "ascent of man" toward a superior state from his previous state


Well, there are adaptations which make a species more suitable to survive and reproduce, so those traits are at least local improvements. The thing is, though, when the environment changes, then those same traits might not be improvements any longer. I think your point is, the species doesn't keep getting better and better on the way toward perfection. Rather, we adapt to survive the particular pitfalls each era throws at us.

donzelion said...

Dr. Brin - "Sorry but allowing the police to limit the amount of exculpatory truth that a citizen could then access with the 6th is exactly what is going on."

The defendant gets access to all that evidence, not the citizen. There are a few contexts where police enjoy handling things with a "walk of shame" (a public arrest of a public figure), but most of the time, the evidence produced during an arrest is not exculpatory in the slightest, and were it readily recorded and publicly reviewed, it would even become prejudicial ("You see what kind of car that guy drove? He must be guilty!"). There's too many countervailing principles and priorities to extend this amendment to fulfill the goals you're looking for.

Should the police erect tall curtains at every altercation, so that passersby cannot witness what they are doing inside, to an accused?

Frankly, I'm more concerned about what they do once they've pulled someone off the street and locked them away (or are transporting them in a vehicle) than I am about what they do on the street. If exculpatory (or inculpatory) evidence is produced at the arrest, then I want to be certain it will be preserved and made available for the trial. I do not want FoxNews conducting televised trials outside the trial, where they can steer a community toward rage.

The accused is thus prevented from having any eyewitnesses he could summon in his own defense.
Not so. If the evidence they obtain by witnessing the arrest is pertinent to the issues in the trial, it will still come forward, with or without video footage. Even if video footage is produced, the videographer must come forward to testify that the contents are not modified or altered in any way and accurately reflect what was recorded at the time of the incident, or the footage cannot be introduced. There's no great conspiracy at work here to stop evidence from going forward (at least, not among police officers generally, there may be specific instances of that).

Show us how that is different from banning cameras.
The cameras are not banned. Interference with police officer activities CAN be banned. Balancing these two will be tricky.

We want citizens to be able to monitor the police effectively. We do not want citizens to prejudice trials or screw with their neighbors by recording these things for other purposes.

As I believe the 6th doesn't get us where we need to go - that will require drafting a good law and defending why it's essential - NOT re-reading the 6th Amendment to achieve more than what it appears (and has been interpreted) to offer. Though I endorse a view of our Constitution as a "living document" that must be rendered relevant to today's crises by interpreting its provisions accordingly, that does not mean I can read it any way I wish - gotta work within the framework that exists.

donzelion said...

@Larry - Well, there are adaptations which make a species more suitable to survive and reproduce, so those traits are at least local improvements."

LOL, yes, you've read me correctly, and sure, "local improvements" are fine so long as they're understood as only being 'improvements' relative to context. But the broader point remains unchanged - the fact that some species will eventually displace another species - that there will be 'winners and losers' in the 'evolution game' - does not tell us much about what we 'ought' to do, so much as what we are and how the world operates.

That, ultimately, is the benefit of the institutional school of economics (which I think the Evonomics forum Dr. Brin is endorsing reflects) - by incorporating evolutionary reasoning into our economic analyses, we may not be in a better position to say what ought to be done, but we'll come closer to describing what is actually happening by drawing from the real world, rather than inventing models that assume nonsense like "all other things being equal" (ack, ok, that's a horrid pun).

Jumper said...


Is it my imagination or have national and international sport rules slowly eliminated in some cases the tie score as a possible outcome?

donzelion said...

@Jumper - don't know about 'slowly' eliminating tie scores. Most sports have always had ways of resolving ties, but opt to apply them selectively (e.g., soccer championships v. league rules). But I think arguments about equality of outcome are broader than fixing the game so everyone ties (very seldom the rule, and then limited to different types of competition, e.g., group health activities), just as equal outcomes rules in the rest of the world are broader than radical redistribution. Those opposed to progressive taxation argue as if it was egregious redistribution, a prelude to communism. They haven't encountered real redistribution (confiscate all wealth and give it to others), except in mad fantasies (e.g., the Fed confiscated all the wealth in the country, or the illuminati, or some other group).

Zepp Jamieson said...

To sum up: You cannot have privacy without freedom. And you cannot have freedom without privacy.

Hans said...

Omerto? Google sez omerta.

donzelion said...

@Zepp - here's a helpful analogy to distinguish the kinds of rights in question: human life requires both air and water, but it's hard to have "too much air" and quite easy to have "too much water." So with freedom and privacy: hard to imagine "too much" freedom, easy to imagine "too many secrets."

For rights and principles that are self-limiting - like freedom - we need only to guard them and ensure they persist. There is no such thing as "too much freedom" - and the comforting libertarian "freedom to do anything we please so long as we do not hurt others" is not the worst starting principle (though again, it leads us to cul-de-sacs). Some call these "primary" rights, but I dislike the term, preferring "absolute rights."

For rights that have to be "balanced" against other imperatives, our experience of those rights will shift with each epoch, adjusted by technology, by other priorities. Nobody had to worry about having their picture taken in a compromising condition and used against them for various purposes before cameras existed in such form as to make it quite easy to take pictures without posing. Some call these "secondary" rights, but I prefer "limited rights."

Both are essential, yes, but where they run into irresistible tension, we tend to err in favor of absolute rights, for the very good reason that mistakes made in doing so are self-correcting, while mistakes made expanding limited rights may not be.

Jerry Emanuelson said...

A new law goes into effect in Colorado on May 20 regarding citizen recording of police. Many people are pushing for the law to be used as a model for laws in every other state.

A news story about the law is at:

http://www.thedenverchannel.com/news/politics/right-to-record-bill-addresses-citizens-right-to-film-law-enforcement

The complete text of Colorado HB 15-1290 is here.

donzelion said...

@Jerry - an interesting law. Discussing how such laws ought to work strikes me as the best way to achieve the goal of transparency.

Two thoughts on a prima facie read:

(1) I wonder if a 'seize for 72 hours' rule is sufficient compromise to achieve the goals of privacy protection, transparency protection, and avoiding prejudice of a trial. Wonder what Coloradoans think of that.

(2) the attorney fees portion is interesting. Most people will not pay $10,000+ in lawyer fees to bring a claim with a cap of $500 in damages (absent a finding of bad faith - which would probably be pretty uncommon).

That said, only after a law is put forward can we start working on what is the proper limit. If we say "the 6th gets us there" without drafting such a law, we'll wind up with judges guessing whether 48 hours or 96 hours is 'enough.' This is the better way.

donzelion said...
This comment has been removed by the author.
Jumper said...

Good grief, I'm not arguing that all games should tie, just that a few do and it is a valid score. The idea that there must be "sudden death" in a game is a pernicious meme! I hope these nuts don't start tampering with the rules of chess to try to eliminate draws.

Jerry Emanuelson said...

@donzelion - My reading of the law is that the $500 in damages is only for the value of the recording itself. Punitive damages could total up to $15,000 and reimbursement for attorney's fees are on top of that. This does not include the value of any recording equipment that was damaged or that disappeared. That recording equipment could be the subject of an additional civil award of actual replacement cost.

Part of the law says, "THE COURT MAY ORDER PUNITIVE DAMAGES UP TO FIFTEEN THOUSAND DOLLARS AND ATTORNEYS' FEES TO THE PROPERTY OWNER . . . "

The market value of most recordings made in such situations would be far less than $500, so there is an implicit level of addition punitive damages even in placing a $500 valuation on the recording itself. There appears to also be the recognition that in the recording of events of great national interest the market value of the recording could be far more than $500 (even though compensation would be limited to $500 by this law). In the case of recordings of unexpected events of great historical interest, the value of the recording itself might even be vastly higher than $500.

You are certainly correct that specific laws need to be enacted. The U.S. Constitution was supposed to mainly be a pronouncement as to what laws could be enacted. We should not have the legality of every specific action between citizens and the police governed directly by the Constitution. To me, states that do not enact some equivalent of Colorado HB 15-1290 are neglecting their responsibility. Even Colorado was rather late in not enacting this law until last year.

In the case of this particular law here in Colorado, I suspect that the first police officer that causes the law to be brought before a court will very quickly find himself out of a job.

Deuxglass said...

Jumper,

I played soccer for many years and although I love the game, I find watching professional soccer rather boring. There are not enough goals and too many 1-1 ties. The worst is when the winner is decided by shoot-outs. It is a lame way of finishing a game. FIFA should tweak the rules to make it more exciting but I admit, I am in a small minority since the rest of the world goes literally crazy over the game.

Deuxglass said...

donzelion,

My experience with lawyers and the law is limited to the corporate species and not to the criminal ones so my understanding of the law in these matters is very limited. I tend to approach these constitutional questions from what, to me, is a common sense point of view so sometimes I think that to solve a problem “all you have to do is this” and it is fixed but that comes from my superficial understanding of constitutional law. As you rightly underlined, changing the interpretation of a law to fix a problem can lead to creating perhaps worse problems as a result. I guess that is why we have a Supreme Court. When you think that the “Citizens United” decision would quickly lead to Super PACs as an unintended consequence you can see that one has to be very careful with new interpretation of law.

I am still trying to get a handle on the question and possible solutions that Dr. Brin is talking about but I get the sinking feeling that it is much more complicated than I originally thought.

Duncan Cairncross said...

Hi Deuxglass

How long ago did you watch soccer?
It used to be like that about twenty (or thirty) years ago but a number of rule changes did exactly as you asked and the very defensive games that ended in ties diminished
Most games now end in a definite result

Deuxglass said...

Hi Duncan,

I watch soccer here in France a few times a month and the scores are just about always too low for my taste. There are many ties, many games that are 1-0 and way too many fake injuries. Maybe some more rule changes should be in order to make it more lively but as I said, I am in the minority. I haven't seen too many people complain about the pace of the game. Soccer is one of the most physically demanding games so you just can't keep playing till somebody scores in overtime, players would be dropping right and left, but you can make it more decisive and exciting.

Duncan Cairncross said...

Hi Deuxglass
Not sure what the French game is like, I got very fed up with the defensive games back in the 80's
Scotland always used to play an open game but England played very defensive - which was the best strategy but boring

Then they changed some of the scoring rules and the horrible no score draws went away

The latest games I have watched all seemed OK - fast and flowing,
Maybe I'm not as fussy as I remember the BAD times

locumranch said...



The argument favouring 24/7 video surveillance of the the Polity goes something like this:

Equality, Impartiality & Fairness without fear of retribution. Under the anonymous, inhuman & fearless video standard, law can be enforced in an impartial & fair manner because everyone is objectively equal under video (plus you can't seek retribution against an inhuman witness).

Yet, if you've done nothing wrong, committed no crime & haven't been accused of anything, then you are not 'a criminal defendant', haven't been accused of anything, have no right to confront your (inhuman) accuser, have no right to either a speedy trial or exculpatory evidence & have no 6th amendment right against self-incrimination.


The argument against 24/7 video surveillance of Law Enforcement is near identical to the one above.

Equality, Impartiality & Fairness without fear of retribution. Under the anonymous, inhuman & fearless video standard, law can be enforced in an impartial & fair manner because everyone is objectively equal under video (plus you can't seek retribution against an inhuman witness). Yet, therein lies the rub. By virtue of their humanity, video places law enforcement in a double-bind.

Law enforcement personnel fear retribution and, in the absence of anonymity, they cannot be simultaneously human (subjective; fallible; biased; kind) AND objective, impartial & fair in the performance of their duties. It just can't be done. This is why Captain Picard does not socialise with Red Shirts & Police do not reside in the neighborhoods they patrol. They start to identify with the others as humans; they become subjective, biased & partial; they start cutting their friends & neighbors some 'slack'; they look they other way when people they care about break the law; and they cannot perform their duties in an inhuman & objective manner.


Before video, we could pretend that 'Equality, Impartiality & Fairness' were humane (human) qualities on par with Mercy, Kindness & Partiality but we can do so longer. Society reaches the breaking point and soon (very soon) we must choose between an Objective INHUMAN standard of jurisprudence or a Subjective Humane one.


Best
______

It is in the State's best interests to maintain the anonymity of law enforcement & forbid sousveillance in a way that the 6th Amendment need not apply: If it is ILLEGAL to video law enforcement & recording law enforcement personnel is a crime, then sousveilance video represents proof of crime, is non-exculpatory & is therefore not protected by the 6th Amendment [Catch 22].

donzelion said...

@Jerry - the critical factor is the circumstances for the court to award punitive damages: the burden of proof is typically much harder to attain when police are involved. If it will cost many thousands of dollars to bring a claim that will pay out very little, few will ever do so. This is why sometimes a law that appears to protect a right, by capping damages too low, actually removes protections.

Yet even so, this law is an improvement over nothing. I cannot say how they reached their numbers, and would want that clarified and defended before endorsing this law as a model - but I am confident this is a better starting point than I knew of yedterday, and grateful to you for sharing it.

donzelion said...

@Deuxglass - oh, superPACs are nothing new, just a new name for what was once called a 'machine.' I hope it's helpful to complicate something that in real life is not simple, and which might be mistaken as a simple problem. And perhaps it is helpful to hear how even a progressive will acknowledge judicial restraint, the so-called bastion of 'conservative' justices (who, in Citizens United, proved more activist than conservative by overruling the will of the people win it suited their views).

donzelion said...

As for soccer, I wonder: the games ending in ties might frustrate the spectators, but do the players compete any less when the game's still contested? Or if the game is up 3-0, does the losing team play with less vigor? The spectators are not the only ones who matter - particularly since playing the sport, rather than observing it, is a great gain for the community and the players themselves.

In America, how would our obesity rate be affected if 10x as many people played soccer for a few years? Or any sport more demanding than flipping on a channel?

donzelion said...

Locum - typically, recording the police is not a crime but a misdemeanor, often linked with more general rules on interfering with police investigations. As a misdemeanor, most states will not treat this the same way they do a criminal trial for purposes of the 6th amendment.

David Brin said...

Futbol is popular around the world for one great reason. All you need is a ball and it can be played anywhere, by poor kids. That is a huge positive. The negatives - to me are just that it’s boring. It also teaches you no skills you could actually use. There’s not even much runing.

Now BASEBALL is a weird, cludged game. But if you play it well, then get dumped into the paleolithic, you’ll be very good at feeding yourself! You’ll hurl rocks that hit small game! And you’ll be good at hitting large game… and rivals… with sticks.

Locum argues well today, though his Catch 22 is illogical and he neglects the fact that in a transparent world most crime simply vanishes… and so do most police.

Jumper said...

No, not arguing well. They reward cops who live in their own patrol zones with an interest rebate around here. It's called "community policing."

Deuxglass said...

Dr. Brin,

You are wrong about soccer. In a game you are either jogging or sprinting and rarely still. Substitutions are limited so you are there for the whole game and at the end, you are exhausted more than any other sport I have played. You do learn teamwork in a more subtile manner and it is egalitarian. Everybody gets the ball sooner or later and shows his stuff.

I love baseball, football and soccer but the best sport in the world in my opinion is surfing. Every wave is different and there is no time to think or plan. It is pure instinct and is as close to Nirvana as one can get.

WiseLalia said...

I like the transparency. I'm willing to wait to view evidence. I realize waiting may have several positive effects, among them allowing people to cool down. However, the wait should be reasonable, and in no cases should it have the effect of going past the statute of limitations for the likely crime being filmed.

Zepp Jamieson said...

@donzelion

There's inherent restrictions that apply to freedom and privacy, and neither can be unlimited. My point is that you cannot have one in the absence of the other.
If freedom and privacy are a y-axis, then authority and powerlessness are an x-axis, and the prevalent need for freedom against privacy is an indirect function of amount of power held. It's easy to argue that authority figures should be as transparent as possible, at least in discharge of their duties. I would say that responsibility requires transparency, and freedom requires privacy. Again, not unlimited. More of a sliding scale. We have a right to know if the mayor's bank account is reflecting income five times what he says it is; with they guy who cleans the mayor's office, not so much. But if the mayor is getting some on the side, that's his business, provided it isn't affecting his official duties. Transparency, but still maintaining at least reasonable personal privacy. If that custodian is stealing from the mayor's office, then his right to privacy is subsumed but the requirements of a criminal investigation But no sensible person will care if the guy smoked a bowl before coming to work, as long as the place is tidied by morning. Both men have a reasonable expectation of some privacy, and some freedom. Both require some of both in order to function.

LarryHart said...

donzelion:

For rights and principles that are self-limiting - like freedom - we need only to guard them and ensure they persist. There is no such thing as "too much freedom" - and the comforting libertarian "freedom to do anything we please so long as we do not hurt others" is not the worst starting principle (though again, it leads us to cul-de-sacs). Some call these "primary" rights, but I dislike the term, preferring "absolute rights."


Am I missing something? How can the right be absolute when the clause "so long as we do not hurt others" is an explicit limit?

And there may be no such thing as "too much freedom" for me, but there is certainly such thing as "too much freedom" for everybody else. The whole idea of society, especially egalitarian society, is a balance between what you want to do and what you're willing to accept that others may do.

raito said...

Dr. Brin,

You are incorrect in nearly aspect of your comment on sports. Deuxglass is correct -- there is no standing still in soccer. Still, I found wrestling to be much more exhausting than soccer, having done both in high school. Probably because there's more of the body involved attempting to shift much more than one's own body weight.

You aren't even correct that it teaches one no skills that are useful. It teaches many. It teaches teamwork. It teaches the ability to look ahead. It teaches one to read others' tendencies. It teaches the ability to roll past a short-term setback.

But it is pretty boring to watch even if you know the game. And the pro game, like all pro games, plays too close to the edge of the rules to be much fun to watch.

And as I've been hitting people with sticks by various means for nearly 4 decades, you're dead wrong on the ability of a baseball player to hit another person with a stick. It has been my experience that baseball players do not come into my sport with any more skill than anyone else.

Of the ones that do show some skill when beginning, it's usually fencers, wrestlers, boxers, and other martial artists who have been able to translate their non-technique skills (tempo, meter, training ethic, etc.) The ones who, even though high-level in their previous art, cannot let go of their technical skills have the most troubles.

As for the value of a recording, it depends greatly on what the recording is. If it's the evidence that exonerates you, how much is that worth? The bill seems to have good intent, but its extent is probably only going to show itself in the courts. $500 or even $15000 is chicken feed if the recording shows malfeasance.

David Brin said...

Note, I answered Fluis Dynamic and Will Feret under to previous comments section, then said onwar. continue here.

David Brin said...


Deuxglass when Leona Helmsley left hundreds of millions “to dogs” I hoped the trustees would spend some of it on some kinds of “uplift” … but apparently not.

The Helvetian War starts as a legal maneuver by a dozen developing nations, allowing them to act as belligerent states and seize Swiss assets. It gets out of control.

Alfred Differ said...

@donzelion: At a very gross level, one could represent scientists as "competing with one another" to develop the "best model." But most scientists compete not with one another, but against a puzzle or a question. They may compete to obtain the best outcome, but they have no interest in sabotaging their rival's grants - or cutting funding so that only "winners" benefit. The point of competition within science is to get as many scientists into the game as possible, to fund as many different approaches as show promise: equality of outcome drives the process, ensuring many contributors are able to participate in the game.

That’s very generous of you, but it doesn’t match my experience. There is an illusion we spin intended to give the impression that ours is a dignified competition, but don’t get sucked into it. One of the most important things I learned from my graduate advisor is how the game is actually played. Dignity is what we make of it and some of the players in his field were perfectly willing to engage in character assassination and publication sabotage. It happens.

David Brin said...

AD... scientists are human, in other words. But the only human elite that has applied layer after layer of encouragement to at least try to find one's own delusions and mistakes. To TRY to take criticism cheerfully, to TRY to compete collegially.

"Hypocrisy is the homage that vice plays to virtue."

Scientists may be human... and hence hypocrites. But that trying matters. It shifted the standards hugely.

donzelion said...

Locum - typically, recording the police is not a crime but a misdemeanor, often linked with more general rules on interfering with police investigations. As a misdemeanor, most states will not treat this the same way they do a criminal trial for purposes of the 6th amendment.

Deuxglass said...

Dr. Brin,

I am not aware if there are any efforts being made to give dogs speech ability but I think they would be better candidates because humans and dogs have a long relationship that has lasted thousands of years and so "we know each other" much better than chimpanzees and humans know each other. Some have a vocabulary of several hundred words, are attuned to humans in general and they kind of like us and we like them. We have empathy for each other. There might be some military programs working to that end now, I don't know but it seems logical. It makes sense to deepen this relationship and turn it into something much more beneficial for both species.

Deuxglass said...

Dr. Brin,

It is too bad that in "Earth" you chose Switzerland to be destroyed. In my experience the Swiss are the most pragmatic people in the world and it is incredible how they can peacefully and democratically integrate people with four different languages and differing traditions into a society that works very well. I must also add that they have fantastic skiing and I for one would not like to see that diminished in any way. Nevertheless, if push comes to shove, a decision must be made but let's make it non-nuclear to keep the scenery and the mountains as they are.

LarryHart said...

@Deuxglass

I think Dr Brin was going for the completely unexpected with the Helvetian War. First, you had Switzerland being the last place one would expect a World War to center on. After that...well, I'm not going to completely spoil it here, but the Helvetians went on to another role that is, to say the least, unusual for a land-locked nation. Interesting and amusing at the same time.

Deuxglass said...

LarryHart,

yes I know that. A long time ago I read an interview where Dr. Brin said he came up with the Helvetian War just to come up with a totally unlikely scenario and that was as about an outer as you can get.

David Brin said...

Well, yes, the surprise-unlikely aspect was paramount. Still, I was also quite sick of the smug sanctimony of "we've been at peace for 300 years... while assisting every single brutal dictatorship across that time, including especially the Nazis and betraying fiduciary responsibility to Nazi victims who thought their resources would be safe with Swiss lawyers. Who fee-churned every such account down to zero in no time. And who now refuse to ID many many billions in funds stolen by third world kleptocrats, thus consigning millions of real children to cauterized lives and/or death.

At minimum all UN institutions should be moved out of there. And I will never let them lecture us about morality.

Alfred Differ said...

@David: I quite agree. My graduate advisor took a risk way back when like Young Guns do and got shot up for his effort, but the illusion of dignity still works. He WAS trying to point out errors among the advocates of a theory and they blew him out of the field by arguing he was incompetent. He licked his wounds and moved to a different field, so I have no idea who was correct as I can't read the original stuff. Atomic physics never appealed to me. 8)

You've got a lot of educated people hanging out here, so I suspect they can handle the reality. We really are human AND we really are onto something special. The Market that is Science has its Invisible Hand that seems to steer mere humans who are acting selfishly into producing great benefits for all. I'm thinking that might be a universal rule of markets. Hmm... 8)

Alfred Differ said...

@donzelion: Most of us try to argue what the law actually "is" - if we hang our arguments on what the law 'ought' to be, it's a desperation move when no others can work.

Okay. Honest question time. Regarding the first amendment and the way it helps create separation of church and state, the Court used to require a government action be active support of a particular religion to qualify as something to be rejected. In the late 1940’s, they abandoned that precedent and allowed that passive support could be enough. The argument went that after many decades of passive support, we had produced a de facto Christian nation backed by government spending. The people who pushed to change this case got a reversal of an OLD interpretation for Amendment #1. Was theirs an act of desperation?

I ask because David might be advocating something similar regarding amendment #6. Personally I see this as an amendment #9 issue and would agree with you that we need to write an amendment specifically defending witness rights since #9 is inherently unenforceable. However, can David’s argument regarding #6 be looked at like what happened to #1? If so, the lawyers making the case would argue that past interpretations won’t apply well since they were relevant to an age before ubiquitous cameras. In the olde days, would police have been able to confiscate cameras in use by the Press to do what our modern witnesses are trying to do? Would they have been able to do so then using the rules of today? I suspect there may be problems with them acting against the Press and since ubiquitous cameras make us all de facto members of the Press, isn’t there a non-desperation case to be made here?

Jumper said...

Is it defensible for the police to tell a lightning fast sketch artist to stop drawing as they sketch a street scene? What about a good stenographer writing down everything overheard in a street conversation?

Alfred Differ said...

... or even someone with a photogenic memory. 8)


Where I think donzelion has a strong point is that many of us want this evidence as inculpatory evidence regarding police-originated crimes. Amendment #6 doesn't exactly cover that unless someone is dumb enough to make recording such things a criminal activity. Hmm... 8)

Paul451 said...

David,
Re: Soccer,
"There's not even much running."

It's not the sprint-stop of baseball or gridiron, it's more like tribal persistence hunting. Constant co-ordinated swarming, following and supporting the lead hunter (the tracker in hunting, the attacker in soccer), constantly on alert ready to instantly shift tactics to respond to the prey animal, trying to cut it off and out-manoeuvre it.

Re: Baseball,
"get dumped into the paleolithic, you'll be very good at feeding yourself! You'll hurl rocks that hit small game! And you'll be good at hitting large game… and rivals… with sticks."

Sure, but learn cricket and you can create an empire.

LarryHart said...

Paul451:

Sure, but learn cricket and you can create an empire.


Empire building happens in mysterious ways. Cricket never caught on here in the US, but it did in India, and now that so many Indians work here in the states, cricket matches are a thing.

Deuxglass said...

Dr. Brin,

The Swiss know how to run their own country well but anyone from outside is fair game. They have little morality for others when it comes to making money. In the last ten years or so, they have tried to clean up their act a bit but it is just really only some window-dressing.

locumranch said...



To argue that 'most crime simply vanishes (in a transparent world) and so do most police' is analogous to arguing that pederasty simply vanishes when child rape becomes ubiquitous. Crime, when defined "an act or omission prohibited and punished by law", does not simply 'vanish' when criminal acts & omissions become easily punished, detected or 'transparent'. Quite the opposite, in fact, as those acts & omissions that become easily punished, detected & transparent tend to be rapidly criminalised.

Yes, indeed. Certain thoughtful individuals MAY be discouraged from criminal acts & omissions by certain transparency-mediated detection, yet these incidences are mere exceptions when one realises that most crimes are acts & omissions of carelessness, thoughtlessness or passion AND most criminal prohibitions exist to either target disadvantaged ethnic groups or discourage common but socially undesirable acts.

Statistics show, for instance, that between 20 to 40% of the western population misuses or abuses illegal intoxicants on a regular basis yet, instead of leading to social tolerance & acceptance, the very commonality of illegal intoxicant use & abuse has led to a costly & ineffective 'War on Drugs' which includes escalating punishments, retaliatory violence & mandatory sentencing guidelines.

If you believe that Transparency will lead magically to Equal, Impartial & Fair Law Enforcement, then you are sadly mistaken UNLESS you favour the merciless, mechanical & anonymous application of Hooded Justice that once prevailed on Kristallnacht, behind the Iron Curtain & in the once racially-segregated South.

(Insert appropriate Mask quote here)


Best

David Brin said...

What are we witnessing here? Something has caused locumranch to veer away from posting dyspeptic illogical and zero-sum drivel into posting dyspeptic, logically refutable but well-formed zero-sum argument.

What Locum is arguing is that transparency leads to what Vernor Vinge calls "ubiquitous law enforcement." Or ULE. At its extremum, we are all caught for every single illegal thing that we do. Five times exceeding the speed limit? We're all bankrupt from $500 tickets and denied driver's licenses. All tokers of a pot doobie go to prison for ten years. Soon we're all in jail except twenty little old ladies who are the only voters and wind up forming a weird kind of dictatorship.

Except, as Vernor freely admits, ULE makes a simple assumption... that there's no democracy and that citizens are all idiots. A perfectly reasonable assumption, given locum's dyspeptic, zero-sum zeitgeist...

... and utter silliness. The penalties for speeding are so high to compensate for the rarity of being caught. If everyone is caught, how many $500 fines will it take for voters to demand the law be changed into a tariff, like long distance calling, so we can pay a little to speed a little? And how long before marijuana... oh... right... In blue America that's already happening.

The answer to ULE is democracy, amid a culture of respect for eccentricity and diversity... in which case, if you get ULE, the answer is FEWER LAWS! It is yet another case where technology will either cause Big Brother forever... or Big Brother never. The decider is whether we citizens are fools.

And this election shows the division forming in stark clarity.

locumranch said...


In regard to ULE & traffic regulation, David states "The penalties for speeding are so high to compensate for the rarity of being caught", a once-true statement from the time before radar & camera-mediated law enforcement but a patent falsehood during the Age of Transparency, especially in California where (1) traffic regulations define Speeding as motor vehicle speeds "at or above the 85%" (defining 15 to 20% of all motor vehicle operators as criminals) and (2) intersectional cameras capture every signal-related motor vehicle infraction on film.

The '85th% Rule' (above) is an unfortunate but fairly universal legal fact, illustrating that most Legal Systems exist to facilitate discrimination & criminalise the actions (and/or omissions) of any given 15 to 20% minority, the only antidote & answer to the ULE threat (as David concedes) "is FEWER LAWS", which just AIN'T gonna happen in a Majority Rule transparency culture with a near infinite Internet-mediated memory for any individual's crimes, felonies, infractions & peccadillos.

Welcome to Transparency wherein the Slightest Error becomes forever affixed to your Permanent Record.


Best

Paul SB said...

I'm not a lawyer, but my reading of the 9th Amendment is that it's a sort of catch-all, a hedge that says "if we forgot something important that comes up later, we can be the jude of that and not let obsessive literalism stop us from doing what's reasonable." Intuit sense the 9th could cover just about anything, so long a sit doesn't contradict any previous provision of the Constitution. I think Dr. Brin's interpretation of the 6th is pretty reasonable, but I could see arguing that the 9th would support a specific interpretation of the 6th (or any other amendment).

Regarding soccer players or other team-sports athletes dropped into the Paleolithic, they would last longer than most members of modern civilizations, but that is mainly because they are in much better shape than most. They aren't sitting on the couch watching sports, drinking beer and developing leptin resistance. But wilderness survival requires a lot more than the ability to follow a leader or seek personal glory. Most of us would be Crow Chow in a week. They might make it for a month or two.

Back later... hopefully not to find that the God of Mischief has sucked up all the Blog O2.

David Brin said...

He argues as if sapient. Then ignores every common sense insight. The assumption is always "my fellow citizens are stupid." Never: "I'm the one who cannot see."

Never mind. There's a new-cool posting.

onward

onward

twocs said...

The video is probably legal, but these cameras record audio as well. That's wiretapping!

As Wikipedia states: 'US Code Title 18, Chapter 119, Section 2512 prohibits the interception of oral communication by "surreptitious manner" such as a hidden camera'

It is considered a danger if my non camera records a conversation conducted between a police officer and another party, for example with a counter protester, where no party to the conversation is aware that the video camera is also recording audio.

So does it mean that the purposeful video cameras for protesters shall be deaf? On the other hand, a product such as Otter Box provides a nice way to clip a phone (with its incidental recording capabilities, I believe it's more law friendly).

Jim Baca said...

Read this and weep. A wealthy oil patch community in New Mexico.

http://www.abqjournal.com/746533/news/hobbs-rejects-camera-for-meetings.html?utm_source=abqjournal.com&utm_medium=sidebar+-+popular+posts+-+home&utm_campaign=popular+posts

Steve mcclure said...

6th amendment and 7th aren't even respected in the small...against the robocop red light cameras. Try subpoena-ing more than the 5 second video they give you. Therefore it is foolish to think they would be honored in the large cases.