Glibertarians.com 2018 Archive

Category: Fourth Amendment

  • Talk to the cops? Are you crazy? (part one of a multi-part series)

     
     

    I have the glory and honor of appearing on a few court-appointed lists in the area. This means I represent clients for misdemeanor, felony, and child protective/ delinquency cases. And I really don’t mind doing this kind of work. Strangely enough, going to law school really prepared me well for doing this kind of work. Go figure. Although it wasn’t taking the required criminal law classes that prepped me, it was the overall structure of the classes.

    One of the perks of my job is that I get to read a lot of police reports, and talk to police officers and detectives a lot. The reason why I say this is a “perk” is that it makes me look at the arguments law enforcement would use if the case goes to trial, and how police psychology works. It’s actually quite underhanded and manipulative once you break it down into its pieces.

    Sometimes, and it has happened more recently thanks to getting on those court-appointed lists, I have potential (retained!) clients call me with the following scenario: “I was at a party last weekend, with a lot of friends. My friends tell me that Tom says that I committed a crime against him, and that he called the cops. Should I talk to the cops?”

    My advice is always “No, you have no obligation to talk to the cops.” And then I tell the potential client, “if the cops call you, tell them you won’t be questioned without your lawyer present.”

    1. The format: Police reports are written in a good guy/ bad guy format. It’s like a play. Usually –and I can’t think of a time I have seen it any other way — the person who calls the cops is the “good” guy. Once the cops identify the rest of the players in the play, they will try to finger one person  (or possibly a group of people, who end up as co-defendants) as the “bad guy.”

    This is the beginning of how the mind set of law enforcement works. It’s easier to sell the story to a jury if the play is simple. Good guy / bad guy is a scenario we have all seen, and the jury will want vengeance, justice, or something, for the good guy. This is how a conviction is made.  Also, police and prosecutors know their audiences: it is the general public. What is the general public’s IQ? How does the general public feel about victims and justice?

    2. Corroboration: Talking to the victim, or alleged victim as I like to call him/her, gives the cops a list of other people to talk to, witnesses, before they talk to the person they’re trying to cast in the “bad guy” role.

    This is how under-handed the police mindset is, as talking to other witnesses first becomes a set-up for the defendant to put his own picture in the frame, or cast himself in the starring role. It also gives police an inside edge, as this leads to a cross-examining of the defendant from their first contact.

    This is part of the officer’s job. And it works in their favor — talking to other witnesses gives “corroboration” to the alleged victim’s story. If the witnesses back up the victim’s story, then the cops have some corroboration, and the victim’s story sounds more like it would stand up in court. Back to selling this story to a jury: if there’s a witness who says the same thing as the alleged victim, then the jury will have more sympathy toward the alleged victim, and it is easier to get a conviction.

    3. Contacting the defendant: The scene is now set, the cops have a victim, and some witnesses. Now all they need in the play is the bad guy.Once the cops call the potential defendant, they begin with what is called a “leading” question. Sometimes these are called open-ended questions. It’s the sort of question an interviewer uses on a job interview, such as, “where do you see yourself in five years?” it doesn’t lead to a “yes” or “no,” instead it leads to more of an explanatory answer.

    Or, in the potential scenario of being pulled over, it sounds more like this “How fast did you think you were going?” This leads to an answer that can be incriminating such as, “I’m not sure, but I think was going about 35.”

    Except in our “play,” as written by the police, it sounds a bit more like, “Hi, Jim. My name is officer Bishop with the County sheriff’s office. Tom talked to us, and said you committed a crime against him.”

    This open-ended statement might lead a person to possibly deny the assertion, or to try to correct the cops. The problem is that any other statement a potential defendant makes at this point can be used to cast him in the role of bad guy, no matter the answer.

    Usually by this time, again, cops have talked to other witnesses, and so once the defendant says something, an officer can counter with “Well, Mr. Johnson said you went after Tom with a carving knife.” Here’s the corroboration coming to assist the cops, and further explanations by defendants are only helping the police.

    Also, the next thing a defendant says – even if it is the truth — may lead to a credibility problem not too far down the road. The options are to either a) deny what has been said by Mr. Johnson, or possibly point the finger at someone else; or b) deny what was said totally. (Option (c) is also available, however).

    At the first contact by police, asserting an attorney’s assistance would be helpful. Instead, defendant should answer, “I’m sorry officer, but I can’t talk to you without my attorney present.” That’s option (c), which no one seems to take!

    Either way, the cops have an alleged victim, and a corroborating witness who already say nearly the same thing. But according to the defendant, those two are both liars now. That won’t seem likely to a potential jury, will it? This is just grist for the mill of the prosecution. Think again of the audience, which is the general public. Who should the jury believe: the defendant – or all of the possible ways to agree with the prosecution: instead the jury can believe the alleged victim, officer testimony, credible witness testimony . . .

    Police also know that facts are confusing – the victim and one or two witnesses usually get a few facts wrong, but this still can be OK to a jury. The victim is sympathetic; so it makes sense what with being attacked that the victim might get a few facts wrong.

    4. The defendant’s natural response works against him. This is where manipulation also comes into play, in case it wasn’t used already when contacting the defendant. Most people are raised to think that the cops are good people, and that working with the cops will help everyone (even when being questioned about something).

    A second natural response happens when police contact a suspect. The suspect wants to “set the record straight” about what really happened. This works against the suspect as well. The police aren’t interested in getting it straight, they are interested in the “good guy/bad guy” scenario.

    Back to my job: I can’t tell you how many times I have had clients tell me “I was respectful”– “I didn’t make a scene,”– or “I cooperated.” Even clients with fairly extensive criminal records tell me this, when their prior involvement with law enforcement should have them knowing better. Who cares whether you cooperate with the police? The police will do their job whether you cooperate or not. And that’s what they are paid to do, so why help them to do their job? I don’t see the cops coming along to help you do yours, now do I?

    5. The fact that cops wear uniforms works in their favor. It’s intimidating, for one. Second, it tends to lead to obedience on the part of defendants. Clients/defendants know that cops have uniforms, guns, and jails at their disposal. So it’s easier for cops to get compliance, and so defendants/clients to give in to authority: the alternative can be scary – even if you are innocent. People in that situation tend to want to get out the situation as quickly as possible, so it’s easier to tell the cops something. Third, the uniforms are de-humanizing. It’s not a guy who happens to be a cop, it’s a cop! People see the uniform, but not the individual in uniform.

    Well folks, that is all I have for now. Thanks for listening. Feel free to comment, leave suggestions, etc. My upcoming specials will be:

    Part two: The Big C: When do your Constitutional rights “attach” to the situation?

    Part three: Evidence problems. What the police report says, can it be “in” evidence?

     

    Lastly: this is totally worth the watch: a criminal law professor covers exactly the same topic I just did!

  • A Lone Voice in the Wilderness

    Supreme Court Photo: SAUL LOEB/AFP/Getty Images
    In 1981, Elena Kagan wrote her undergrad thesis on why socialism failed in the United States. It is a mixture of the usual litany of excuses, but primarily she contends that: A) the right people weren’t in charge; and B) the people were deplorables who voted against their own interests. They were unworthy of the glories of socialism.

    Aside from sitting on the Supreme Court, there is not anything notable about her daftness. Almost to a man this is the line that leftists use to excuse the catastrophic results that socialism yields each time it is instituted, without exception. If it were not so serious, it would be entertaining to listen to the gibberish that is indistinguishable from insanity; after all these are people who cannot accept objective reality and wish to impose their views on the population as a whole.

    What I find more alarming is that the inability to completely grasp reality is not limited to the left. Last night, I made the mistake of watching news on television. There was a lot of ranting about the evils of the Obama administration, the calling out of bad actors and explicit accusations of corruption since the 2016 presidential election in our entrenched and unaccountable bureaucracy. One phrase kept coming up: abuse of power.

    It is frustrating to me that so many people only ever get it almost right. Of course there has been gross abuse of power. Of course there have been and are bad actors. The chances of this not happening are exactly zero. What the bobblehead pundits are missing is the fundamental premise that the Founders based our constitution on.

    I hear people cite the separation of powers fairly often but it is not really that. It is not about separating of powers, it is about dividing power into smaller and smaller portions until no one person or group has the ability to do serious damage to our society. The Founders knew from experience that bad actors and abuse of power are inevitable so they crafted a system that dispersed power as much as possible.

    Eventually some discussion of Senator Rand Paul’s hesitancy for endorsing Supreme Court nominee Brett Kavanagh came up. There seems to be much alarm about this yet no real examination of why Senator Paul has taken this position. While Kavanagh is a brilliant jurist and a fine human being, Paul’s hesitancy is based on Kavanagh’s less than stellar stance on Fourth Amendment rights. I think in the end Paul will vote to confirm, but now is his chance to call attention to the massive surveillance state we have built that is trampling our inalienable rights with impunity. You cannot have a massive surveillance state and secret courts in a free country. It is a simple fact. The FISA law and its courts should be burned to the ground and the ashes thrown in the sea. This is what Paul is trying to draw our eye to. This ain’t rocket science.

    I would be satisfied with Kavanagh sitting on the court. He is probably the best we can hope for. He would be a huge help in undoing much of the undiluted evil that has been inflicted on us by statists, but he is not a cure for the problem. We must dismantle the apparatus of the surveillance state and the concentration of unaccountable power. As long as it remains, we will continue to have gross abuses of power.

  • How Predictive Analytics Simultaneously Improves and Ruins Your Life

    Preamble

    Flashback nearly a decade and you’ll find me toiling away in a filthy (custodians would typically not go into the labs for fear of getting blamed for something going wrong) basement lab working on an algorithm for my doctoral thesis. Identifying exotic particles (eg: magnetic monopoles, Q-balls, strangelets, etc.) in cosmic ray datasets is not exactly what you’d call the most employable pursuit. However, it was definitely more useful than SJW grievance studies, more interesting than working as a glorified proofreader for other people’s code like some of my friends and I wasn’t paying for it, so what the Hell? Everyone knows the real reason you get into physics is for the pussy anyway (hahahahaha, oh I almost made it through typing that without LOLing).

    So here I am cannibalizing standing on the shoulders of giants, using previous theoretical mathematical work on Bayesian predictive inference. Mathematics like this had been around for decades, this was just a novel application of it and formed the basis of my thesis work. I was creating an algorithm to use simulated training data and a Bayesian comparison between said training data and real data to try and identify compositional limits on particles theorized to exist but never observed (aforementioned MMs, strangelets, Q-balls etc.). While certainly fun to talk about at parties and a real panty peeler (more LOL), the thought that I’d use any of this stuff in the real world seemed remote. I had already ruled out pursuing a career in academia, so I figured I’d just go become a code monkey like my friends. Little did I know that I was inadvertently making myself eminently employable in a field that has become the new “hot thing” in tech.

    A Rose By Any Other Name is Just as Confusing

    At the time, this field was limited to academia and a few tech companies that were using it to claw their way to the top (see: Google, Facebook, Amazon, et. al.). It didn’t even have a name other than just “statistics” or “data analytics”; boring pedestrian things that only the pocket protector squad cared about. Glamorous Silicon Valley VCs would never get on board with such dull nonsense. So, being the innovators that they are, techies rebranded this field “data science” employing “artificial intelligence” and “machine learning”. I personally have issues with all these monikers; “data science” is just meaningless (in spite of that being my job title) and “artificial intelligence” and “machine learning” both suffer from the same problem. Namely, they both imply that a computer is learning in the same fashion as a human brain. My preferred moniker is “predictive analytics” since I think it captures reality better and doesn’t overstate what the algorithm is doing to some kind of mind reading and/or Skynet AI.

    So what exactly is it? Well, the short explanation is that any predictive algorithm takes parametric data inputs to build a statistical model that will predict the outcome of future iterations within some uncertainty. Essentially, you start with a set of “training data” with known outcomes, the algorithm then processes that data to build a model of how each parameter affects the outcome. You then feed the algorithm a set of test data, it applies the model to all the parameters, makes a prediction, then looks at the known outcome and scores whether it’s correct, a false positive or a false negative. If the algorithm passes some human-defined threshold, it starts working to make predictions on real-world data, all the while refining its model to get better as it processes more data. This real-time refinement is where the “learning” and “artificial intelligence” stuff comes in. To an external observer, it looks like the computer is learning and adapting; which in a way it is, but only in some narrowly defined brute-force iterative way within specific parameters. It has none of the heuristic properties of human intelligence. Perhaps someday we’ll unlock the secrets of the human mind and be able to simulate true intelligence, but I see that as a long way off.

    How It Makes Your Life Better

    As stated, this kind of analysis has been used in mathematical and academic settings for a long time, but the first exposure I ever had to it in the real world was a fun little quiz called the Gender Test at www.thespark.com (to early internet denizens, this was kind of a forerunner to places like College Humor, Ebaum’s World and finally the Glib-approved favorite, The Chive). This test asked a series of seemingly irrelevant questions such as “Which word is more gross, used or moist?” and showing pictures of two different cartoon monkeys asking “Which one will win?” After 50 or so of these kinds of questions, the quiz would then predict if you were male of female and ask if it got it right. This was long before the misgendering insanity so it was a binary choice; each time it got it right, it increased the relative weights of the preceding questions toward that gender. Each time it was wrong, it reduced the weights. The very first time someone took the test, the prediction was pure chance. But after a couple hundred thousand iterations, the relative gender weighting on the questions got pretty good and the algorithm could predict male or female almost all the time. In this case, the answers to the questions were the parameters and the gender was the predictive variable. While it may seem simple minded, this basic paradigm is what drives most of our modern computational conveniences.

    Every time you search something in Google, that’s a set of parameters used to refine its model. It gets better and better at searching. Each time you “like” something on Facebook or click a link in Twitter or look at a job posting on LinkedIn, their models refine and get a little bit better. Each time you ask Siri something, she gets a little better at understanding you (remember when you first unboxed your new iPhone and Siri asked you to say a few things at startup? There’s your training data).

    Of course the most important innovation is in the industry that is always the tip of the technological spear: porn. This goes way beyond dumbly suggesting videos tagged “big tits” after you’ve searched for big tits. EVERYTHING you do is a parametric data point. Among the videos you watch, are the tits real or fake? How big are they exactly? Is this lesbian, one on one hetero, threesome, group or something more exotic? What parts of the scene do you linger on? Go even further and perhaps there’s eye tracking technology (tape over your webcam people). What part of the tits do you look at the longest? In what sequence do you look at them? Is there a type of nipple you gaze at longer? Can the nipples themselves be broken down into parametric data for classification? The possibilities are endless. In this way, the porn site “learns” not only what your revealed preferences are, but it also can use data from other users with similar preferences to suggest things that you yourself might not even know you like. Like big tits? Might we suggest these ebony strap-on compilations for you?

    There are of course more pedestrian applications like what I’m working on professionally now. We have biopsy slides that have been pre-tagged by experienced pathologists as cancerous or non-cancerous. The algorithm does pixel-by-pixel imagery analysis to classify features that indicate cancer or not. The hope is that eventually the algorithm will get good enough that it can identify cancer on its own, even in stages too early for a human to see. It’s not nearly as cool as porn, but a guy’s gotta eat right?

    How it Ruins Your Life

    Coolness factor aside, this way of doing things can quickly cross over from nifty to creepy. Target famously has an algorithm that not only tracks what you buy, but will automatically latch onto your smartphone and track your movements in the store. The most amazing (read: creepy) application of this is its ability, through lots of training and refinement, to tell the gender of the customer, the approximate age of the customer, whether the customer is pregnant and the approximate due date of the customer before she herself even knows she’s pregnant. All this is possible from millions of data points of known pregnant women (going from buying prenatal vitamins, to stretch mark cream to eventually diapers and formula) and their purchases and movements around the store leading up to the birth. The more times this happens, the better the algorithm gets.

    One might be tempted to actually put this in the “how it improves your life” column. After all, Target can offer you discounts on things it knows you’ll need and make your life more convenient in the process. However, it doesn’t take much imagination to see how this can quickly morph into something very sinister, very quickly.

    Creepy when a private company does it, this becomes nefarious when a government does it. Even worse is when government gets in bed with private companies to start profiling you based on your data. Buying a lot of fertilizer? Maybe you’re making a bomb. Let’s look at literally every parameter that comprises your life for the past decade to see (at a 95% confidence level) if you’re a terrorist. G-d help us if we ever get to a point in which this kind of shit is accepted in a court of law. We would literally have a Minority Report Pre-Crime situation on our hands.

    Every single thing you do, seemingly significant or not, is a parametric data point that can be fed into an ML algorithm to extract features, classify them and make predictions about you. Not just what toothpaste you use, but how long and how often you brush. Do you start from the molars or the incisors? Do you gargle your mouthwash? What are your favorite sexual positions? How loud are your orgasms? Do you own a tabby or a tuxedo cat? Do you typically move your bowels in the morning or the evening? Do you configure your toilet paper over or under? People like to think that this kind of data collection is limited to conscious decisions like the products they buy or the places they go, but that is barely scratching the surface. Emotions, unconscious behaviors, pointless or useless decisions of daily life; these things are the treasure trove that gives insight into your essence. The eyes are not the window to the soul, Big Data is. The only way to escape it is to forsake all modern technology, retreat to the woods and live as if it’s the 18th century (behavior which itself, by the way, offers a ton of data about you).

    Now of course all of this can be used for good or ill. In all seriousness, a change in bowel habits could indicate a health problem. But let’s not be naive about the true nature of how these technologies are/will be used. To those who crave power and long to rule us, these developments are a gift from Heaven (or, more likely, Hell). These analytical techniques, so seemingly innocuous when Thomas Bayes first pioneered them 300 (!) years ago have opened a can of worms that could enslave the human race in ways Big Brother could only dream of. If Bayes could see what’s happening now he might echo Oppenheimer; “now I am become Death, the destroyer of worlds.”

    Unfortunately, I don’t hold out a lot of hope for the future. Constitutional protections have proven toothless, people stupidly *volunteer* massive amounts of data and the data that they don’t volunteer gets vacuumed up by an ever more intrusive State. The campus #metoo squad is just the advanced scouting group checking out how fortified the “innocent until proven guilty” doctrine is; a trial balloon for the destruction of due process.

    Working in the field I do only makes me more pessimistic because I see how powerful this is first hand. My advice: well, I don’t really have any; aside from the aforementioned retreat into the woods. Other than that, all you can do is continue to support causes that shore up data privacy protections and defend against 4th Amendment violations. That’s at least a finger in the dike (not finger in the dyke you perverts).

    But, hey, at least PornHub’s suggested viewing is spot on right?

  • Our National Conversation is a ‘Shit Hole’: A Rant

     

    So which one of you is this?

    I am fed-up with the nonsense that dominates our political discourse.  Nothing substantive is discussed at all anymore.  We have the establishment media still throwing a hissy fit over a presidential election that they lost and it is becoming impossible to discern between the Democratic Party, CNN, the New York Times (sorry, but Stossel is right about the ‘old grey lady’), the Washington Post, MSNBC, ABC, NBC, and CBS anymore.  The stupidity of our current national conversation is no more evident than the fact that on January 16, 2018, the US Senate voted to end debate on the FISA Amendments Reauthorization Act of 2017, thereby preventing an attempted filibuster by Senators Rand Paul, Ron Wyden, and Mike Lee.  This act renewed (since its passage is nearly certain now, as of this writing), for six years, the federal government’s authority to gather communications between people from the United States and foreign nationals, without a warrant.  Though the legislation has always been presented as ‘anti-terrorism’ legislation, the law also allows the FBI to peruse these communications to identify a crime. Thereby thoroughly gutting the 4th Amendment’s protection against “unreasonable searches and seizures.”

    But, it doesn’t even matter what the particulars of the law are.  What is more important is that there was no national conversation about the renewal of such an expansive piece of legislation.  Instead, in the days leading-up to the Senate vote, our national media was fixated on ‘shit hole’-gate.  Did the president refer to some countries as ‘shit holes’ in a private conversation in the White House?  Truly gripping stuff.  And, as if in an attempt to go full retard, our national media then began dissecting the president’s physical and mental health (because it’s totes cool to ask those questions now).  And when the media’s speculation was rebutted by a navy physician that also served the previous president, they doubled down on stupid.  These stories were more important than debating whether or not the federal government should be allowed to eavesdrop on your personal conversations without a warrant?

    Democrats vs. Republicans

    Where are the grown-ups today?  In years past, we had commentators like Christopher Hitchens, William F. Buckley, Gore Vidal, Mike Royko, and HL Mencken, to name a few, who cut through the minutia and focused on bigger issues.  Today we have this ass hat,  a bag of dicks, and shit for brains.  And when our imbecile pundits aren’t ignoring important issues like unreasonable searches and seizures by our government, they are actively attacking commentators who do warn against such actions.  Meanwhile the bulk of our political class is just as buffoonish, asinine, and unclever as the ass hats, bags of dicks, and shit for brains that cover them.  There are some exceptions within our political class, and to their credit, more Republican Senators voted against renewing FISA under a Republican president than Democrats who voted against renewal under a Democratic president.  And for that, I would grant Republicans a participation ribbon.  This ribbon is as useless as the Republican Senate and redeemable at the midterm elections for one “I will never vote for you worthless assholes again” from me, with love.

    The worst part is that the cause is most assuredly over.  If a universally reviled and unstable president cannot convince Congress that the executive wields too much authority, than nothing will.  FISA is permanent now.  The next time renewal comes around, I doubt even a mention will be made.  The State will continue to erode away at the Fourth Amendment and will continue to chip away at other parts of the Bill of Rights.  All the while, our chattering class will be fixated on the latest faux outrage committed by whomever occupies the title of “literally Hitler” at the moment.  Nothing is sacred anymore. This is a lost cause now.