>We know why it's different of course: scale. But there was never a general principle about scale and automation articulated in the Constitution because it just wasn't a thing to worry about in the 1700s.

If we're doing the whole "the other team get to play lawyer too" thing, your logic can become dangerous when applied to other issues. For example, almost no one had the ability to protect their communication and personal files from warrants when the laws regarding that sort of thing were written and computers have now made that trivial. Would people here treat that as a valid argument against end-to-end encryption?

> "If we had police officers stationed at all these intersections writing down license plate numbers, no one would bat an eye at it."

This is literally the definition of a police dragnet.

> But there was never a general principle about scale and automation articulated in the Constitution because it just wasn't a thing to worry about in the 1700s.

> We're left to hope that courts agree that just because something is okay for one police officer in one place to do, that doesn't mean the police department can perform that same task a thousand times in a thousand places with a thousand machines and still have it be okay.

There are multiple court cases that have done this exactly this. Carpenter v. United States and Chatrie v. United States are the ones you want.

I'm reminded of Jeff Dean's maxim "Plan for 10x growth, but somewhere along the line to 100x, you are going to need an entirely different architecture, because the bottlenecks shift."

We've had certain areas of technology get 5-6 orders of magnitude more efficient, which shifts the bottlenecks and introduces new possible abuses. Government hasn't caught up. The last time this happened (with the industrial revolution), we had 3 major waves of wars between 1861-1945 that finally refactored the governments of the world into a working state. I'm hoping this time around can be less bloody, but I don't have very high hopes.

We used to call second hand information "circumstantial", and it couldn't be used against you. If the officer sitting in court didn't personally see it, then it didn't happen.

Or did Law and Order lie to us?

>We know why it's different of course: scale

I think it's more about abstraction. If someone is standing on the street corner taking down your plate number, you know they're likely up to no good. If there's a camera on the street corner, it may bother me, but the vast majority of people just go "eh".

I would definitely bat an eye at cops acting like human flock cameras. That sounds like an incredible waste of resources.

In the several years it will take to resolve, the one side will get to do what they want and the other will not.

Flock has no power vs the commerce clause. Congress just has to use it.

There was a case exactly like this, and the ruling was literally "just because you could post officers next to the suspects house 24/7 and record their comings and going, doesn't mean that using illegal survailence to record their movement is the same". It has been tried in court and lost.

laws are a tacit agreement between the people and government that is all.

I think tech people often have a very mechanistic interpretation of law (also leading to the common misconception that it would be possible and desirable to encode law as a computer program!) and like Orthodox Jews, a certain kind of people seem to treat law as some sort of puzzle to be solved.

It's not the tech there that sidesteps the regulation, it's the diffusion of responsibility. AirBnB isn't breaking the hotel regulations, the individual hosts are breaking the hotel regulations, and AirBnB is just providing you a platform to find them, several of which are not breaking any regulations. Uber isn't sidestepping taxi regulations, the individual drivers are sidestepping taxi regulations, and not all places have taxi regulations so Uber as a company has substantial non-lawbreaking uses.

They're taking advantage of the same misfeature of our justice system that is being discussed here, notably that it's all based on individual personal responsibility and scales very poorly to lawbreaking at scale or cases where the negative outcome had many people responsible for it.

Corporate execs use this frequently to legitimize atrocious conduct. Have a pesky law (like the Freedom of Information Act requests that were discussed here yesterday) that you want to ensure is not complied with? Create a team whose job is compliance, but underfund them by a factor of 100, so that there is no possible way they can catch and address all of their legal obligations. The exec created a relevant team and delegated responsibility, so they're in the clear. The individual workers are falling down on the job and not responding to requests fast enough, but they're also falling down on the job and doing the best they can, so at worst they should get a bad performance review and no raise, they can't be held criminally liable. The people trying to get the law enforced are just outta luck, because it's another unfunded mandate and they don't hold the budget strings.

Or consider the case of cheating on emissions standards. No executive will tell their engineers "You should cheat on these" - that would be a crime, right? But instead, they might take the 20 or so employees that have the biggest disrespect for rules. And then they give each of them a small team and a budget, and have the teams compete to create the best engine on a variety of metrics that are important to customers, but notably not the emissions standards, because it goes without saying that everyone is going to follow the law, right? Then inevitably one of those teams will win and there's a good chance that it's one that cheated on emissions, but of course the exec had no knowledge of that and the team lead in question has been fired.

But the more dominant the "legal because computer, and how dare you ask me?" attitude is, the less we'll see enforcement. People should demand action, rather than call it a clever business plan.

Folks who were on here praising Uber or Airbnb for skirting the law 10 years ago, this was part of the problem.

The people that run HN are so hostile they launched the bloody thing:

https://www.ycombinator.com/companies/flock-safety

There are a million more examples of that

Look at all the anti CSAM laws... "hey, we'll scan all the mail you get and send, and well check all your photo frames in your houses, just in case you have pedo stuff there".

Or the different chat control laws... "well put a mic on you and listen to every conversation, just in case you talk about something illegal".

Then you have the people defending this with "ok, that might be bad, but metadata is just metadata"... sure, every time you go to a bar, we'll record when you came inside, who you sat with, and record how much you talked with each person there.