Being investigated is a red herring. The problem is from the other end. Your premise is that a person being investigated when they're innocent of the original crime is basically harmless because the investigation will come to naught. The actual issue is that if they can find a pretext to get a list of all of the people who viewed some content they don't approve of, now they have a list of targets with which to play "bring me the man and I'll find you the crime" and that is a harm in need of preventing.
> Your premise is that a person being investigated when they're innocent of the original crime is basically harmless because the investigation will come to naught.
Not at all. I would say that it's usually (not always!) small in the particulars but adds up in aggregate, and that we should be a lot more careful with how much surveillance we allow.
I just would also say that the kinds or amounts of harm being done there are manifestly not what Blackstone was talking about in his "formulation" as it leads immediately to absurd conclusions that go very well past the present case.
I will not here that "there is a concern here analogous to Blackstone's ratio" is a different thing than, paraphrasing what was up thread, "this is substantially more extreme than Blackstone's ratio should forbid".
And in case I haven't said it in thread anywhere, I share concerns about surveillance. I just think if we are enlisting support from historical figures, we should find a quote where they're talking about the question or acknowledge the distance, rather than pretending the quote means something it didn't - that will only turn off those who might be persuaded.
> "there is a concern here analogous to Blackstone's ratio" is a different thing than, paraphrasing what was up thread, "this is substantially more extreme than Blackstone's ratio should forbid".
I agree with this. What's happening here is different than the scenario in the original ratio, even though it's a similar concern.
> I just would also say that the kinds or amounts of harm being done there are manifestly not what Blackstone was talking about in his "formulation" as it leads immediately to absurd conclusions that go very well past the present case.
If we direct ourselves to the case at hand, I'm not sure that a general rule that the government can't compel innocent bystanders to assist an investigation against their will would even be a net negative, much less cause serious problems. When a crime is committed people will generally be inclined to help bring the perpetrators to justice, because who wants thieves and murderers and so on going unpunished? Whereas if someone is disinclined to help, we might consider that they could have a reason, e.g. because the law being enforced is unjust or they believe the investigation is not being conducted in good faith, or they simply don't trust the government with the information, at which point the ability to refuse acts as a reasonable check on government power.
> I just think if we are enlisting support from historical figures, we should find a quote where they're talking about the question or acknowledge the distance, rather than pretending the quote means something it didn't - that will only turn off those who might be persuaded.
I feel like historical quotes tend to detract from discussions in general, because they're effectively an appeal to authority and then the discussion turns to exactly where we are now, debating whether the current situation can be distinguished from the original, which is a separate matter from whether what's happening in the modern case is reasonable or satisfactory in its own right.
> What's happening here is different than the scenario in the original ratio, even though it's a similar concern.
Correct me if I'm wrong, but I'm pretty sure Blackstone wrote about negative or natural rights.
In fact, let me pull out more context around the exact quote. He specifically addresses direct punishment but immediately after is the nature of having the duty to defend one's innocence. Which is exactly the case here.
Fourthly, all presumptive evidence of felony should be admitted cautiously, for the law holds that ***it is better that ten guilty persons escape than that one innocent suffer.*** And Sir Matthew Hale in particular lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead; on account of two instances he mentions where persons were executed for the murder of others who were then alive but missing.
Lastly, it was an antient and commonly-received practice that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses.
I would not be surprised if Blackstone found the act of investigation without the qualification of sufficient suspicion as gross injustice and directly relevant to his intent. As this is a less inconvenient version of locking everyone in a room and interviewing them checking their pockets for stolen goods before they leave. The negative or god given right of innocence is innate. The punishment is the accusation and search, which is an explicit infringement on the natural right. Yes, rights can be infringed upon, but not without due cause and not simply because one is in a position of authority.
I know that this is a point of contention in this (these) discussions, but I stand by that a right is being violated and harm is being done by the simple act of investigation. Mass surveillance (which is mass investigation), is an infringement on our god given rights. The point is to have friction for the infringement of rights. All rights can be violated, but they must need sufficient reason. It does not matter if these rights seem inconsequential or not. Because at the end of the day, that is a matter of opinion and perspective. Blackstone was writing about authoritarian governments and the birth of America was similarly founded on the idea of treating government as an adversary. These were all part of the same conversation, and they were happening at the same time.
I do not think I am taking the historical quote out of context. I think it is more in context than most realize. But I'm neither a historian nor a lawyer, so maybe there is additional context I am missing. But as far as I can tell, this is all related and we should not be distinguishing investigation (or from the other side of the same coin, exculpation) from punishment as these are in the same concept of reducing one's rights. They are just a matter of degree.
> He specifically addresses direct punishment but immediately after is the nature of having the duty to defend one's innocence.
The issue is that the ratio can't mean much outside the realm of a criminal conviction when any of the rest of it would need a different standard.
Suppose we want to evaluate if it's reasonable for the police to search your residence for a murder weapon. Should we let 100 guilty people go free to avoid one search of an innocent person? That's probably not right, a search is enough of an imposition to require probable cause, but if you had to prove the crime to the same level as would be necessary for a conviction in order to get a warrant then searches would always be superfluous because they could only happen in cases where guilt is already fully established without the results of the search.
Conversely, with this YouTube kind of situation where the police want data on large numbers of people, the majority of whom are fully expected to be innocent, they're not even reaching probable cause for those people. Which is a lesser standard for justifiable reasons but it's still not one which is being met for those people. And so it's still a problem, but it's a different problem with a different standard.
I find this interpretation odd. I do not see the numbers as meaningful in a literal sense but rather in a means of making a point and a grounding for the surrounding abstraction. I think the point is to explicitly discuss these bounds and view them as a spectrum. To think of them in the abstract but to push back against authority.
Certainly Blackstone was not saying that infringement of rights (punishment) should not happen under any circumstance. Rather that there should be significant friction and that we should take great care to ensure that this is not eroded.
Another reason a lot of people got their hackles up is that you also had the ratio backwards:
> Supposing every person watched that video 10 times AND supposing the target was one of the viewers (it really isn't clear that this is true), that's 2999 people who have had their rights violated to search for one. I believe Blackstone has something to say about this[0]. Literally 30x Blackstone's ratio
"3000 innocent people for every one possibly guilty" isn't 30x Blackstone's ratio, it's 300,000x and worse, because the ratio is "100 actually guilty people for every one innocent". Of course, this actually helps your argument -- violating the rights of thousands of innocent people is unjustifiable -- but once you've given everyone cause to pause and work out what's wrong, they're going to reply with whatever they can find.
So what? We're going to derail an entire point because a gaff was made and everyone still understands the argument?
It's worth pointing out, but not worth derailing an entire conversation. It generates noise that prevents us from actually discussing the issues at hand. We're people, not computers. We can handle mistakes (and look how much work we put into computers to make them do this). And this thread blew up, you aren't the first to point it out. So forgive me if I'm a bit exhausted.[0]
I've made several mistakes (including the first blackstone link not pasting and pasting the whole comment instead of the specific part I was responding to (thanks firefox)), and so have you, and others. But let's not make the conversation about that. We'll never get shit done. We can take an aside to resolve any confusion, but it is an aside. Clearly by your explanation here you understood the point. And clearly we know that the number itself is arbitrary. Are we gonna shit talk everything Franklin said because he used 100 instead of Blackstone's original 10? No, because the number isn't what's consequential.
[0] We do meet each other here a lot and I have respect for you. It's why I'll take the time to respond to you. But I also know you to be better than this. I think you can also understand why it can be exhausting to be overloaded with responses and with a large number of people trying to tear down my argument by things that are not actually important to the argument. Specifically when the complaints make it clear that the correct interpretation was actually found. I'm happy to correct and appreciate mistakes being pointed out, but too many internet conversations just get derailed this way. The distinction of correcting vs derailing is critical, and the subsequent emotional response is clearly different in the two cases.
I'm happy to continue the conversation w.r.t the actual topic (even where we disagree), but it seems like wasted time to argue over a gaff that we both know was made and we understand what was said despite this.
It isn't. If the police are investigating John Smith and they get a warrant for the files of John Smith then they don't also get the files of anybody else along with them.
And importantly, there has to be sufficient reason for investigating John Smith. It can't be arbitrary (he looks funny, has a limp, is black, is gay, plays Doom, is a Muslim, etc). Rights can be infringed, but they need reason. And they need good reason.
How do police find out that John Smith is the person whose files they want to get a warrant for?
Maybe because John Smith was one of only eleven people who signed in to a building on the day a crime took place, and he signed out right after the crime happened.
But should the police not look at the sign-in sheet at the building because that will infringe the privacy of ten innocent people?
> How do police find out that John Smith is the person whose files they want to get a warrant for?
The victims go to the police and tell them that John Smith stole from them, so the police go and seize his files to confirm that the victims are telling the truth.
> But should the police not look at the sign-in sheet at the building because that will infringe the privacy of ten innocent people?
Asking for the sign-in sheet and seizing the sign-in sheet by force against the wishes of its owner are two different things.
