Slashdot Mirror

Kristian von Bengtson is one of the founders of Copenhagen Suborbitals, a private organization dedicated to cheap, manned spaceflight. He says, 'This week the space suit branch of Copenhagen Suborbitals from the U.S. is visiting and testing suits in capsules is being performed." The testing process is being chronicled in a series of articles at Wired. You can take a look at some images of getting suited up, and read about the process in detail. von Bengtson writes, "I have to say this suit is incredible, and wearing it today was a remarkable experience. Not only did it fit like a neatly tailored jacket, you instantly become very aware of isolation, the risks involved in this mission, and the complexity of the suit when the 'visor down' command is effectuated. Even though you have a bunch of people next to you – operating life support and with cameras – you feel all alone and all sounds disappear. They’re replaced by the hissing of the breathing-gas and pressure-gas." There's another article about getting into and out of the capsule while in the space suit, which is quite a complicated procedure. "All three of us tried to perform the fast egress and this was a very intense experience. While pressurized inside the capsule (app 1 psi) arms and legs want to expand your body like a balloon and even just reaching out toward the hatch opening was almost impossible. Each of us spend at least 30-50 seconds on this procedure desperately trying to reach toward anything nearby, feet and leg kicking and general nonsense body-wobbling. A simple procedure like this required all the power and muscle we had while John Haslett tried to keep up with dumping CO2 and adding breathing gas."

Kristian von Bengtson is one of the founders of Copenhagen Suborbitals, a private organization dedicated to cheap, manned spaceflight. He says, 'This week the space suit branch of Copenhagen Suborbitals from the U.S. is visiting and testing suits in capsules is being performed." The testing process is being chronicled in a series of articles at Wired. You can take a look at some images of getting suited up, and read about the process in detail. von Bengtson writes, "I have to say this suit is incredible, and wearing it today was a remarkable experience. Not only did it fit like a neatly tailored jacket, you instantly become very aware of isolation, the risks involved in this mission, and the complexity of the suit when the 'visor down' command is effectuated. Even though you have a bunch of people next to you – operating life support and with cameras – you feel all alone and all sounds disappear. They’re replaced by the hissing of the breathing-gas and pressure-gas." There's another article about getting into and out of the capsule while in the space suit, which is quite a complicated procedure. "All three of us tried to perform the fast egress and this was a very intense experience. While pressurized inside the capsule (app 1 psi) arms and legs want to expand your body like a balloon and even just reaching out toward the hatch opening was almost impossible. Each of us spend at least 30-50 seconds on this procedure desperately trying to reach toward anything nearby, feet and leg kicking and general nonsense body-wobbling. A simple procedure like this required all the power and muscle we had while John Haslett tried to keep up with dumping CO2 and adding breathing gas."

Kristian von Bengtson is one of the founders of Copenhagen Suborbitals, a private organization dedicated to cheap, manned spaceflight. He says, 'This week the space suit branch of Copenhagen Suborbitals from the U.S. is visiting and testing suits in capsules is being performed." The testing process is being chronicled in a series of articles at Wired. You can take a look at some images of getting suited up, and read about the process in detail. von Bengtson writes, "I have to say this suit is incredible, and wearing it today was a remarkable experience. Not only did it fit like a neatly tailored jacket, you instantly become very aware of isolation, the risks involved in this mission, and the complexity of the suit when the 'visor down' command is effectuated. Even though you have a bunch of people next to you – operating life support and with cameras – you feel all alone and all sounds disappear. They’re replaced by the hissing of the breathing-gas and pressure-gas." There's another article about getting into and out of the capsule while in the space suit, which is quite a complicated procedure. "All three of us tried to perform the fast egress and this was a very intense experience. While pressurized inside the capsule (app 1 psi) arms and legs want to expand your body like a balloon and even just reaching out toward the hatch opening was almost impossible. Each of us spend at least 30-50 seconds on this procedure desperately trying to reach toward anything nearby, feet and leg kicking and general nonsense body-wobbling. A simple procedure like this required all the power and muscle we had while John Haslett tried to keep up with dumping CO2 and adding breathing gas."

just_another_sean sends in a story at Wired about a group of engineers trying to build a new server operating system that will make it easier to deploy a multitude of technologies for people and companies that aren't tech giants. "The project is based on Google’s ChromeOS, the new-age laptop operating system that automatically updates itself every few weeks, but unlike ChromeOS, it can run more than just your personal machine. It can run every web service you ever visit, no matter how big. And it will let the companies that run those services evolve their online operations much more quickly — and cheaply — than they can with traditional server software. 'We’ve borrowed a lot of concepts from the browser world,' Polvi explains, 'and applied them to servers.' You can think of CoreOS as a new substrate for the internet. Web giants such as Google and Amazon and big Wall Street financial outfits, including the NASDAQ stock exchange, have built similar server operating systems for their own use, but with CoreOS — an open source software project — Polvi’s startup is creating something anyone can use. 'We’re building Google’s infrastructure for everyone else,' he says. In doing so, Polvi and his team hope this OS can more rapidly fill the security holes that plague our computer servers, while speeding the evolution of the software applications that run atop them."

cartechboy writes "Americans have enough trouble keeping from texting their way to dangerous — or worse — situations in cars. But now car makers, looking to differentiate with tech integrations and after jamming iPhone everywhere, are working hard at integrating Google Glass into vehicles. Consider this quote: 'Within seconds, I've got step-by-step directions to a coffee shop down the street beamed directly to my eyeballs.' Aside from being a little Jetsons, sounds potentially problematic. (Note, Mercedes had been doing R&D since July.) It goes without saying that someone is working on an integration of their own with a Tesla Model S. There is a coolness factor, there may be some utility — but not sure this is a great idea."

chicksdaddy writes "ITWorld has an interesting opinion piece on the next privacy battleground, which they say will be over citizens' rights to use jamming technology to (forcibly) opt-out of ubiquitous surveillance, as sensors pop up in more and more public spaces and private homes alike. 'Given the rapid pace of technological change, we don't know exactly what the future holds for us. But one thing is certain: personal privacy is going to turn from a "right" to a "fight" in the next decade, as individuals take up arms against government and private sector snooping on their personal lives.' The article mentions some skirmishes that have already occurred: employees using GPS jamming hardware to prevent employers from tracking their every movement, and the crush of new business for encrypted voice, video and texting services like SilentCircle (up 400% in the last two months). 'Absent the protection of the law, citizens should be expected to do what they do elsewhere: take matters into their own hands: latching onto tools and technology to give them the privacy that they aren't afforded by the legal system. However, there may not be an easy technology fix for ubiquitous, unregulated surveillance. Writing in Wired this week, Jathan Sadowski warns that the tendency for individuals to focus on securing their own data and communications and using technology to do may be misleading. 'The problem is that focusing on one or both of these approaches distracts from the much-needed political reform and societal pushback necessary to dig up a surveillance state at its root,' Sadowski writes."

Hugh Pickens DOT Com writes "Long overlooked as mere rocky chunks leftover from the formation of the solar system, asteroids have recently gotten a lot more scrutiny as NASA moves forward with plans to capture, tow, and place a small asteroid somewhere near our planet. Two different private space companies, Planetary Resources and Deep Space Industries, plan to seek out and mine precious metals and water from near-Earth asteroids. Now Adam Mann reports that astronomers have identified 12 candidate Easily Retrievable Objects (EROs) ranging in size from approximately 2 meters to 60 meters in diameter that already come (cosmically) close enough to our planet — close enough that it would take a relatively small push to put them into orbits at Lagrange points near Earth using existing rocket technology. For example, 2006 RH120 could be sent into orbit at L2 by changing its velocity by just 58 meters per second with a single burn on 1 February 2021. Moving one of these EROs would be a 'logical stepping stone towards more ambitious scenarios of asteroid exploration and exploitation, and possibly the easiest feasible attempt for humans to modify the Solar System environment outside of Earth (PDF),' write the authors in Celestial Mechanics and Dynamical Astronomy. None of the 12 ERO asteroids are new to astronomers; in fact, one of them became briefly famous when it was found to be temporarily orbiting the Earth until 2007. But until now nobody had realized just how easily these bodies could be captured."

Wired has the story of a plan enacted in the early 1960s by the U.S. Air Force and the Department of Defense that had the goal of safeguarding the country's long-range communications from Russian interference. The solution they came up with wasn't easy, but it was straightforward: launch hundreds of millions of thin copper wires into orbit in the hopes of forming an artificial ring around the planet. From the article: "Project Needles, as it was originally known, was Walter E. Morrow’s idea. He suggested that if Earth possessed a permanent radio reflector in the form of an orbiting ring of copper threads, America’s long-range communications would be immune from solar disturbances and out of reach of nefarious Soviet plots. Each copper wire was about 1.8 centimeters in length. This was half the wavelength of the 8 GHz transmission signal beamed from Earth, effectively turning each filament into what is known as a dipole antenna. The antennas would boost long-range radio broadcasts without depending on the fickle ionosphere. ... On May 9, 1963, a second West Ford launch successfully dispersed its spindly cargo approximately 3,500 kilometers above the Earth, along an orbit that crossed the North and South Pole. Voice transmissions were successfully relayed between California and Massachusetts, and the technical aspects of the experiment were declared a success. As the dipole needles continued to disperse, the transmissions fell off considerably, although the experiment proved the strategy could work in principle."

Despite attempts by MIT and JSTOR to block the release of files pertaining the Aaron Swartz investigation, the court has ordered the release of documents not referencing MIT or JSTOR. There are approximately 14,500 pages of documents that will be released over the coming six months, after having information that could lead to harm against MIT or JSTOR employees redacted. Wired has the full story, and the author uploaded the first hundred pages of files. The first batch reveals that the Feds had indeed been looking into Swartz since the publication of his 2008 'Guerilla Open Access Manifesto,' several years before being indicted for copying documents from JSTOR.

An anonymous reader writes "This article in Wired advances the idea that humans are losing the copyright battle against machines because the fair use laws are tilted against them. The writer wanted to include photos in his book, but the licensing fees were too high. The aggregators, though, like Google, are building their own content by scraping all of the photos they can find. If anyone complains, they just say, 'Fill out a DMCA form.' Can humans compete against the machines? Should humans be able to use the DMCA to avoid copyright fees too? Should web sites be able to shrug and say, 'Hey, we just scraped it?'"

vikingpower writes "Randall Munroe, the comic author best known as the creator of the xkcd webcomic, reveals the secret backstory of his epic, 3099-panel 'Time' strip in an interesting interview with Wired. He says, 'In my comic, our civilization is long gone. Every civilization with written records has existed for less than 5,000 years; it seems optimistic to hope that the current one will last for 10,000 more ... The Earth’s axis wobbles over the millennia, and some individual stars move visibly, so I used a few different pieces of astronomy software–with a lot of hand correction and tweaking–to render the future night sky. When the Sun sets in the night sequence, one of the first things you see is the gap where Antares should be, which was the first clue that this is taking place in the far future. Later in the night–which lasted for several days of real time–more astronomical details let readers pin down the date more precisely.' The comic can be seen as an animation on YouTube. There is also a complete click-through version available on geekwagon. This comic inspired a dedicated wiki and has its own glossary."

Daniel_Stuckey writes "Like so many great leaps for mankind, getting a human to one of Jupiter's moons must begin with a small step. And Objective Europa is aiming to do exactly that. A small team — architects, futurist designers, private space pioneers and even Jacques Cousteau's son — is beginning the planning stage to send human beings on a one-way trip to the Jovian moon Europa. The effort is headed up by Kristian Von Bengston, the founder of Copenhagen Suborbitals, an open source DIY space program based in his native Denmark. And he's quite serious about transporting a man or woman beyond our atmosphere, Mars and the asteroid belt."

rtfa-troll writes "The story from yesterday about the Feds monitoring Google searches has turned into a warning about how work place surveillance could harm you. It turns out that Michele Catalano's husband's boss tipped off the police after finding 'suspicious' searches (including 'pressure cooker bombs') in his old work computer's search history. Luckily for the Catalanos, who even allowed a search of their house when they probably didn't have to, it seems the policemen and FBI agents were professional and friendly. Far from being imperiled by a SWAT raid, Catalano spoke to some men in black cars who were polite and even mentioned to Catalano that 99 times out of 100, these tip-offs come to nothing. Perhaps the lesson is to be a bit more careful about your privacy, so that what you do on the internet remains between you and the professionals at the NSA."

An anonymous reader sends this quote from an article at Wired: "In a dramatic about-face on a key internet issue yesterday, Google told the FCC (PDF) that the network neutrality rules Google once championed don't give citizens the right to run servers on their home broadband connections, and that the Google Fiber network is perfectly within its rights to prohibit customers from attaching the legal devices of their choice to its network."

An anonymous reader writes "The numbers tell the story — in votes and dollars. On Wednesday, the House voted 217 to 205 not to rein in the NSA's phone-spying dragnet. It turns out that those 217 'no' voters received twice as much campaign financing from the defense and intelligence industry as the 205 'yes' voters."

notscientific writes "Each wolf has a unique howl, which scientists can now decipher through voice recognition (audio), allowing them to identify wolves individually. The scientists developed sound analysis code that can tell which wolf is howling with 100% accuracy. Previously, pitch was used to tell wolves apart, but these only achieved a relatively low accuracy rate. This sound analysis is important because it could well give researchers the first proper way to effectively monitor wolves in the wild. Interestingly, this research comes after the recent finding that dolphins have names for one another. In the case of wolves, their howls are essentially their names."

sturgeon writes "Wired Magazine claims today that Google is now 25% of the North American traffic with a mostly unreported (and rapidly expanding), massive deployment of edge caching servers in almost every Internet provider around the world. Whether users are directly using a Google service (i.e. search, YouTube) or the devices are automatically sending data (e.g. Google Analytics, updates), the majority of end devices around the world will now send traffic to Google server during the course of an average day. It looks like Wired based their story on a report from cloud analytics and network management company DeepField."

Dputiger writes "In the wake of activist Aaron Swartz's suicide, MIT launched an investigation into the circumstances that led to his initial arrest and felony charges. It's now clear that the move was nothing but a face-saving gesture. Moments before the court-ordered release of Swartz's Secret Service file under the Freedom of Information Act, MIT intervened, asking the judge to block the release. Supposedly this is to protect the identities of MIT staff who might be harassed — but government policy is to redact such information already."

Declan Mccullagh, C|net's Chief political correspondent, has covered politics since the late 1990s for a variety of publications. He is a strong libertarian, privacy advocate, and long time Slashdot reader who is not happy about how the NSA and other government bodies are sticking their noses into our personal business. He and I originally talked about doing an interview based on a story he wrote for C|net on July 12 titled How the U.S. forces Net firms to cooperate on surveillance. Scheduling problems put the interview off for a bit, but here we are. Note that Declan has written millions of pixels worth of material about privacy, NSA spying, and related matters. With new revelations about unsavory government activities coming to light seemingly every day the interview delay is no big deal. And this question still remains: Can we repeal the Patriot Act? New Jersey Congressman Rush Holt wants to. What about your representatives? Are they willing to join Rep. Holt? Do you think they might if a bunch of people -- perhaps starting with you -- asked them to?

interval1066 writes "A story in Wired describes Orson Scott Card's quest for tolerance in response to a boycott for Gavin Hood's film adaption of Ender's Game, saying that 'The gay marriage issue is moot' in a statement to Entertainment Weekly. Card is a long time anti-gay and defense of marriage activist. 'His concern, ostensibly, is that someone might be petty enough not to see his movie simply because he spent years lobbying for laws that treated certain people as less than human. The fallacy he employs here — that calling out hate-speech is intolerance on par with curtailing the human rights of others — is a favorite fallback of cowards and bullies, and a way of evading responsibility for the impact of their words and actions.' I guess he didn't see this film and the box-office importance of wide appeal coming, did he?"

First time accepted submitter doublebackslash writes "On July 5th, WWVB, NIST's timekeeping radio station transmitting near Fort Collins, will celebrate 50 years of continuous operation. Operating at 60kHz, the signal actually follows the curvature of the Earth via a trick of electromagnetics, allowing nearly the entire globe to receive an accurate time signal, which has in recent years reached an accuracy of 1 part in 70 trillion. Recent upgrades, which came in $15.9 million under budget will allow the station to be better received even in large buildings, giving it an edge on timekeeping that not even GPS can touch, with its need for open skies to receive a signal."

MarkWhittington writes "The International Astronomical Union announced on July 2, 2013 its picks to name the two recently discovered moons of Pluto, hitherto known as P4 and P5. They will now be known as Kerberos and Styx respectively. In Greek and Roman mythology Kerberos is the name of the mythological three headed hound that guards the entrance to the underworld. Styx is the name of the river that separated the underworld from the real world. The names, picked in a popular contest, were actually the second and third choices. The first choice was Vulcan, which was officially touted because it was the name of a Roman god who was a relative of Pluto's and was associated with fire and smoke. The real reason that Vulcan shot up to the top of the list was that was a choice by Star Trek fans in a campaign instigated by actor William Shatner, who played Captain James Kirk in the original series." Shatner is sad and may lead a revolt. Phil Plait wins the award for best headline for this news.

Voyager 1 has been close to the boundary of the solar system for quite a while; we've mentioned that the edge is near a few times before, including an evidently premature report in 2010 that Voyager had reached a distance so far from the sun that it could no longer detect solar winds and another in 2011 that it had reached an "outer shell" of solar influence. It turns out that the boundaries of the solar system are fuzzier than once anticipated; the L.A. Times is reporting that "Toward the end of July 2012, Voyager 1's instruments reported that solar winds had suddenly dropped by half, while the strength of the magnetic field almost doubled, according to the studies. Those values then switched back and forth five times before they became fixed on Aug. 25. Since then, solar winds have all but disappeared, but the direction of the magnetic field has barely budged." Also at Wired, which notes "That's hard to explain because the galaxy's magnetic field is thought to be inclined 60 degrees from the sun's field. No one is entirely sure what's going on. ... [It's] almost as if Voyager thought it was going outside but instead found itself standing in the foyer of the sun's home with an open door that allows wind to blow in from the galaxy."

An anonymous reader writes with this excerpt from Wired: "On an August workday in 2011, a cherubic 18-year-old Icelandic man named Sigurdur 'Siggi' Thordarson walked through the stately doors of the U.S. embassy in Reykjavik, his jacket pocket concealing his calling card: a crumpled photocopy of an Australian passport. The passport photo showed a man with a unruly shock of platinum blonde hair and the name Julian Paul Assange. Thordarson was long time volunteer for WikiLeaks with direct access to Assange and a key position as an organizer in the group. With his cold war-style embassy walk-in, he became something else: the first known FBI informant inside WikiLeaks. For the next three months, Thordarson served two masters, working for the secret-spilling website and simultaneously spilling its secrets to the U.S. government in exchange, he says, for a total of about $5,000. The FBI flew him internationally four times for debriefings, including one trip to Washington D.C., and on the last meeting obtained from Thordarson eight hard drives packed with chat logs, video and other data from WikiLeaks."

hypnosec writes "World's largest Bitcoin exchange, Mt. Gox, has halted U.S. dollar withdrawals of customer funds in the U.S., citing a need for system improvements. According to Mt. Gox, the exchange has experienced a huge number of requests for deposits as well as withdrawals from both established markets and new markets, following which its bank hasn't been able to process transactions on time. This led to difficulties for its overseas clients, especially those in the U.S. The exchange said that the deposits in USD, transfers to Mt. Gox, and deposits and withdrawals in other currencies will remain unaffected during this period. Mt. Gox will be resuming the USD withdrawals for its U.S. clients once the improvement of its systems is complete." Wired suggests the slowness may be due in part to reluctance from banks to get entwined with Bitcoin for a number of reasons. "The problem is that U.S. banks are afraid that doing business with Bitcoin companies might draw the attention of U.S. or state regulators ... This reluctance may be fed by the sense that Bitcoin poses a threat to the banking industry. Anyone can transfer Bitcoins anywhere for free and that could put a dent in some banking transaction processing fees."

Rick Zeman writes "'Confidentiality is critical to national security.' So wrote the Justice Department in concealing the NSA's role in two wiretap cases. However, now that the NSA is under the gun, it's apparently not so critical, according to New York attorney Joshua Dratel: 'National security is about keeping illegal conduct concealed from the American public until you're forced to justify it because someone ratted you out.' The first he heard of the NSA's role in his client's case was 'when [FBI deputy director Sean] Joyce disclosed it on CSPAN to argue for the effectiveness of the NSA's spying.' Dratel challenged the legality of the spying in 2011, and asked a federal judge to order the government to produce the wiretap application the FBI gave the secretive Foreign Intelligence Surveillance Court to justify the surveillance. 'Disclosure of the FISA applications to defense counsel – who possess the requisite security clearance – is also necessary to an accurate determination of the legality of the FISA surveillance, as otherwise the defense will be completely in the dark with respect to the basis for the FISA surveillance,' wrote Dratel. According to Wired, 'The government fought the request in a 60-page reply brief (PDF), much of it redacted as classified in the public docket. The Justice Department argued that the defendants had no right to see any of the filings from the secret court, and instead the judge could review the filings alone in chambers."

Rick Zeman writes "'Confidentiality is critical to national security.' So wrote the Justice Department in concealing the NSA's role in two wiretap cases. However, now that the NSA is under the gun, it's apparently not so critical, according to New York attorney Joshua Dratel: 'National security is about keeping illegal conduct concealed from the American public until you're forced to justify it because someone ratted you out.' The first he heard of the NSA's role in his client's case was 'when [FBI deputy director Sean] Joyce disclosed it on CSPAN to argue for the effectiveness of the NSA's spying.' Dratel challenged the legality of the spying in 2011, and asked a federal judge to order the government to produce the wiretap application the FBI gave the secretive Foreign Intelligence Surveillance Court to justify the surveillance. 'Disclosure of the FISA applications to defense counsel – who possess the requisite security clearance – is also necessary to an accurate determination of the legality of the FISA surveillance, as otherwise the defense will be completely in the dark with respect to the basis for the FISA surveillance,' wrote Dratel. According to Wired, 'The government fought the request in a 60-page reply brief (PDF), much of it redacted as classified in the public docket. The Justice Department argued that the defendants had no right to see any of the filings from the secret court, and instead the judge could review the filings alone in chambers."

wwphx writes "According to Wired, 'German researchers have created a new DRM feature that changes the text and punctuation of an e-book ever so slightly. Called SiDiM, which Google translates to 'secure documents by individual marking,' the changes are unique to each e-book sold. These alterations serve as a digital watermark that can be used to track books that have had any other DRM layers stripped out of them before being shared online. The researchers are hoping the new DRM feature will curb digital piracy by simply making consumers paranoid that they'll be caught if they share an e-book illicitly.' I seem to recall reading about this in Tom Clancy's Patriot Games, when Jack Ryan used this technique to identify someone who was leaking secret documents. It would be so very difficult for someone to write a little program that, when stripping the DRM, randomized a couple of pieces of punctuation to break the hash that the vendor is storing along with the sales record of the individual book."

Wired reports on a disease infecting coffee plants across Central America that could lead to shortages around the world. "Regional production fell by 15 percent last year, putting nearly 400,000 people out of work, and that’s just a taste of what’s to come. The next harvest season begins in October, and according to the International Coffee Organization, crop losses could hit 50 percent." The disease is called coffee rust, and it has been damaging crops to some degree since the 1800s. It's not known yet exactly why coffee rust has become such a problem now, but one of the leading suspects is climate change. "Since the mid-20th century, though, weather patterns in Central America and northern South America have shifted. Average temperatures are warmer across the region, with extremes of both heat and cold becoming more pronounced; so are extreme rainfall events." The fungus that causes coffee rust thrives on warm, humid air, and higher temperatures have allowed it to climb to higher altitudes than ever before. But another likely cause is the way in which coffee is planted and harvested these days: the plants evolved as shade-dwellers, but are now often placed in direct sunlight. They're also clustered closer together, which facilitates the spread of disease. "The integrity of this once-complicated ecosystem has been slowly breaking down, which is what happens when you try to grow coffee like corn."

Bennett Haselton writes with his take on a case going back and forth in U.S. courts right now about whether a defendant can be ordered to decrypt his own hard drives when they may incriminate him. "A Wisconsin defendant in a criminal child-pornography case recently invoked his Fifth Amendment right to avoid giving the FBI the password to decrypt his hard drive. At the risk of alienating fellow civil-libertarians, I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination. So I pose this logical puzzle: come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference." Read on for the rest of Bennett's thoughts.

Wisconsin computer scientist Jeffrey Feldman was arrested on child pornography charges and ordered to give his hard drive decryption password to the FBI. He refused, claiming a Fifth Amendment right to refuse to hand over his password. A magistrate agreed with Feldman, then later changed his mind, but then on June 4th a judge blocked the order demanding that Feldman decrypt the hard drive.

So I will give up some civil libertarian cred and admit that, compared to, say, the free speech guarantees in the First Amendment, I've never seen what's so great about the Fifth Amendment "right against self-incrimination" -- not just as it applies to computer passwords, but in general. (Hereinafter I'm just going to refer to the Fifth Amendment right to remain silent as the "Fifth Amendment", even though there are other rights encapsulated in the Fifth Amendment, such as the right against double jeopardy.) I'm not debating the legal technicalities of the judges' decisions, since they take the "right against self-incrimination" as a given; I'm questioning the value of that "right" in itself.

Before you read any further, this is a pseudo-contest in which I'm soliciting answers in the form of a specific, precisely defined scenario in which you think that the Fifth Amendment makes a positive difference (i.e. that the outcome in a world with the Fifth Amendment, is better than the outcome in a world without the Fifth Amendment, even if you hold all other assumptions constant). If you disagree with everything I say, then the way to show that is to post a scenario that follows all the rules of the contest.

Now, obviously, I am not saying that the police ought to be able to beat information out of you. (The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.) But the "right against self-incrimination" says two things that never made sense to me. The first is that you can refuse to answer a point-blank question asking whether you committed a crime, even if the question elicits no other information that ought to remain private. The second is that if you refuse to answer, a court cannot even consider that as a factor in determining the likelihood of guilt. The first seems dubious as a moral principle; the second actually departs from reality, for no good reason that I can see.

Take first the "right" to refuse to answer. Now, I agree that if the government asks you, say, "What books are you reading these days?", the correct answer is "None of your damn business." Nobody else has the right to know what's on your reading list. However, if a murder is committed, pretty much everyone agrees that it is the state's legitimate business (that is, everyone's business) whether you committed the murder or not. What's the philosophical argument that you shouldn't have to answer "Yes" or "No" if the police ask if you committed the murder?

Compare that to the collateral damage caused by, for example, a search warrant. If you accept that the police have a "right" to know whether your house contains a bloody knife used in a recent murder, then a search could turn up the knife, but there's always the risk that a search of an innocent person's house would penalize them by exposing their private information and belongings. By contrast, the direct question "Did you do it?" is like a "search" that targets only the evidence that is relevant to the case, and nothing else. A physical analogy might be the police scanning a neighborhood with a Geiger counter that detects only illegal weapons-grade plutonium; I'd be kind of OK with that. (Actually, being asked a question is even less invasive, since you don't have the option of refusing the search or the Geiger counter, but you have the option of refusing to answer a question and facing the consequences.)

Now, you shouldn't have to answer questions that are none of anyone else's business; if your alibi for the night of the murder is that you were at a somewhere you're embarrassed to mention, you should be allowed to say, "I didn't commit the murder, but I would prefer not to tell you where I was." But Fifth Amendment absolutists would say that you don't even have to answer the question of whether you committed the murder at all. That, to me, seems absurd. Isn't society entitled to know whether you committed the murder or not?

Perhaps people's discomfort with this reasoning stems from a feeling that the government has no right to interfere with your life at all, unless you've been convicted of a crime. But, rightly or wrongly, the police are empowered to make arrests, search people's houses with a warrant, chase after people feeling the scene of a crime, and take other actions even against people who haven't been convicted of anything. Law enforcement wouldn't be able to function at all without most of these powers, and while those powers can be and have been grossly abused, the solution is to limit those powers, not abolish them entirely. (That might be an argument for giving people the right to remain silent when questioned or arrested by the police, but still empowering judges to issue warrants requiring a defendant to answer a question, even if the answer could be "self-incriminating".) Compared to the possibility of getting arrested or having your house searched, the possibility of simply being required to have the exchange -- "You were walking away from the apartment after the murder, did you do it?" "No" -- seems like a pretty minor inconvenience. (Yes, if the police keep badgering and harassing me with the same questions, or if courts refuse to believe me and try to railroad me anyway, then that's a problem, but it's a separate problem -- we'll get to that in a second.)

Moving on to the second implication, which is that courts cannot weigh your silence in determining the likelihood of your guilt. This goes against the common sense that you would use in your everyday life. If you had two roommates, you knew one of them stole your laptop, you asked both where they were at the time, and one of them immediately told you where they were (giving a story that their friends could corroborate), and other refused even to answer "Yes" or "No" to the question of whether they stole it, what would you think? I'm not saying that a person's silence should ever be considered proof of guilt, but the likelihood of guilt is a probability question, which can be assessed using multiple factors, each of which individually might not be enough to prove guilt by itself. Is the second roommate's silence relevant to your estimation of their guilt? Of course it is. If you would use that factor in your own reasoning, why shouldn't a court? (And in fact, your silence can be considered relevant in a civil lawsuit, just not in a criminal case.)

Now, there are times when the government's evidentiary standards should deviate from common sense. For example, if you find evidence of an affair by snooping in your spouse's email, you may feel guilty about snooping, but you're certainly not going to forget what you found, just because the "evidence" was obtained improperly. The state, on the other hand, is mandated to "forget" any evidence that's obtained in violation of a defendant's rights (for example, if the police break in and search a residence without a warrant) -- that evidence cannot be used in a trial. However, in that case the bar on improperly obtained evidence serves a clear purpose -- it removes any incentive for the police to obtain evidence by breaking and entering. There's no obvious similar reason why a person's refusal to answer a question shouldn't be considered relevant to the likelihood of their guilt.

For these two reasons, I can't think of a precisely defined scenario in which the Fifth Amendment makes a positive difference, i.e. the outcome in the case where the Fifth Amendment does exist, is better than the outcome in a hypothetical world where the Fifth Amendment does not exist, if you hold all other assumptions constant.

My own high school civics teacher gave the example of an overzealous prosecutor determined to convict an innocent defendant of murder, as an example of the importance of the Fifth Amendment. I asked why, even without Fifth Amendment rights, the defendant couldn't just say that they were innocent. "Aha!" said the teacher, mimicking the evil tone of a corrupt prosecutor, "We know you're lying, now we'll convict you of murder and for lying to the court!"

This was the first of many "scenarios" that I've heard supposedly illustrating the benefits of the Fifth Amendment, that didn't hold up under scrutiny. For the government to convict you of lying about not committing the murder, they would also have to convict you of the murder, and if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent. Now, obviously we should stop corrupt prosecutors from being able to railroad people, but that's a separate problem. The right to remain silent doesn't do you much good if the government is going to forge enough "evidence" (or ignore the lack of evidence) to convict you of murder anyway.

So what I'm looking for (email me below, and also post in comments) is a precisely defined scenario that meets all of the following criteria:

1. The outcome in the world where we do have the Fifth Amendment, is clearly different from the outcome in a hypothetical world where the Fifth Amendment does not exist, even while holding all other assumptions constant. (So the "corrupt overzealous prosecutor" scenario fails that test, because if you assume the government can convict an innocent person of murder without regard for facts or evidence, they can do that even if you refuse to testify.)

2. The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world. We can be very permissive about what is considered "better", but there are some limits -- one person, for example, gave me an example of a guilty person who used the Fifth Amendment to avoid giving testimony that might contradict evidence that is discovered later. I pointed out that giving a guilty person a chance to avoid tripping himself up was hardly a good thing, to which he replied, "Oh... right."

3. The "benefit" can't be something that benefits all suspects equally, whether they're innocent, guilty of violating a just law, or guilty of violating an unjust law. Several people have brought up to me the example of the McCarthy hearings, when those being questioned cited the Fifth Amendment as the basis for refusing to answer red-hunt questions.

   Now, most people today remember the McCarthy hearings as an example of grotesque government overreach, and anything that hampers enforcement of an unjust law would be viewed positively in that light. The problem with this defense of the Fifth Amendment is that if it hampers all law enforcement efforts equally, then you might as well just roll a dice every time a suspect is arrested, and let them go if it comes up a 6. Clearly, this is a "limit on government power", which would benefit suspects who are innocent, as well as benefiting people who are guilty of violating an unjust law (however you define that). But since it would "help" all other criminal defendants, too, most people would consider it a silly idea. A defense of the Fifth Amendment along those lines would have to show how it disproportionately benefits people who are innocent, or who have violated an unjust law. (Your argument could depend on what you consider an "unjust law", but you would have to at least make the argument.)

4. The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination. I've had it suggested to me that without the Fifth Amendment, the police would just beat people into confessing. But of course the right not to be beaten by the police is separate from the right to remain silent.

   The easiest way to see this is to consider cases where the Fifth Amendment right to silence does not apply. For example, if the government grants you immunity, then your answers cannot incriminate you, but since nothing you say will incriminate you, the government can then force you to answer the question or go to jail for contempt of court. (There is actually no literal "right to remain silent"; it's a "right against self-incrimination". So take away the possibility of self-incrimination, and you have to talk.) This is a controversial exception, but it's useful for this discussion because it demonstrates that certain rights exist separately from the right against self-incrimination. Obviously, even if the government grants you immunity so that you have to answer questions or go to jail, they still can't torture you for information.

   Similarly, someone suggested that without the Fifth Amendment, the police could just keep on questioning you as a means of detaining you without making an arrest. But, separately from the Fifth Amendment right to silence, there are limits (albeit fuzzy ones) on how long the police can detain you if they don't arrest you. (And then once you're arrested, limits on how long they can hold you without charging you.) As Flex Your Rights (with multiple lawyers on their board) says, "If you choose to challenge a detention, your lawyer will have to argue that police kept you longer than necessary under the circumstances." That's an important curb on police power, and that could be apply if the police keep asking you repetitive or irrelevant questions just as a means of holding you without arresting you.

   So again, even if the government grants you immunity so that you have to answer, they still can't keep asking you the same questions as a means of detaining you indefinitely. That means that right exists separately from the right against self-incrimination.

5. If the argument has major implications for the competency of the courts generally, then address those implications. This is not really a "pass/fail" criterion, because implications can be open-ended.

   I'm thinking in particular of the following argument: Without the Fifth Amendment, the police might adopt a strategy of arresting a suspect and asking him questions in such a way to make him flustered and contradict himself, even if he's innocent. That testimony might then be used to convict him.

   Now, this scenario passes criterion #1 above (with the Fifth Amendment, suspects can clam up and avoid this trap). It also obviously passes criterion #2 - innocent suspects remaining free is better than innocent suspects going to jail. I do think it might fail criterion #3 -- if innocent suspects become flustered and contradict themselves, that should happen at least as often for guilty suspects, too, who are after all lying.

   But there's actually a bigger problem here. It's well known that innocent people can become flustered and contradict themselves under prolonged grilling. If the police, judges, and juries, are so incompetent at evaluating evidence that they would convict you because you contradicted yourself while being questioned about a murder, then that is the real problem -- that the state simply cannot evaluate evidence competently. By giving people a Fifth Amendment right to remain silent under questioning, you've just applied a band-aid by exempting one type of evidence from being used to railroad an innocent person. You haven't solved the competency problem as it applies to circumstantial evidence, unreliable eyewitness testimony, the Prosecutor's fallacy, compromised physical evidence, untrustworthy witnesses, and a host of other potential sources of error.

   So yes, this is a logically consistent defense of the Fifth Amendment -- but realize that it implies we're living under a criminal justice system that can't find its ass with both hands, and perhaps that's the larger problem that should be addressed.

So. I'm interested in whether there is a precisely defined scenario that passes all of the criteria above. You can email me at Bennett at peacefire dot org and put "Fifth Amendment" in the subject line, and also post your suggestion in the comments.

Since I might not be by my computer when the story runs, I'm deputizing our readers to call out FAIL codes for certain responses that are missing obvious points. If the poster is being a dick, then be a dick when calling FAIL codes on them; if the person is participating constructively in the discussion and at least trying to solve the posed problem, then still use the FAIL codes if they apply, but try not to be a dick. Your arsenal:

• FAIL0 -- not specifying a scenario. This does not apply to informative comments; someone might have something useful to say even if it's not an answer to the challenge posed by the article. However if someone starts spouting off trashing the whole article and thinking that they have negated its conclusion, then unless they actually specify a scenario, call them out with a FAIL0. "If you ever bothered to read your American history, you would understand that the Fifth Amendment was adopted as an important bulwark agai--" FAIL0. "Bennett never went to law school so he clearly isn't qual--" FAIL0. "This article has so many errors that I scarcely know where to--" FAIL0. You need to pose a scenario or you haven't answered the question.

  Also, anything with "Go and read... [some third-party source]" without specifying a scenario is a FAIL0. It doesn't take more than a few sentences to summarize a scenario.

• FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not. (I keep hearing the example of the police beating a suspect to extract a confession; like I said, the right against torture whether you have the Fifth Amendment right to silence or not.)

  Or suppose you assume the police would lie and say, "We never laid a hand on him, but he signed the confession anyway." Well, even in a world with the Fifth Amendment, clearly if the police are going to beat you into submission and lie about it, they can still just beat you into submission and say, "He voluntarily waived his Fifth Amendment rights without us touching him, and confessed." For that matter, if the police are willing to lie, they can lie about your confession even if you don't confess at all. In either case, it's not clear that the Fifth Amendment would affect the outcome if you hold all other assumptions constant about whether the police are willing to lie, how much the suspect can hold out under coercion, etc.

• FAIL2 -- not explaining why the outcome in the Fifth Amendment case is better. (So no, "It gives a guilty person time to come up with an alibi.")

• FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty. Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences can be made from that, and yes, that will benefit some innocent people who refuse to speak to the government as a matter of deeply held principle, but it's going to benefit guilty people at least as often who just don't want to be caught in a lie. As I said, if you want to benefit all criminal defendants equally, you could just roll a dice and acquit whenever it comes up a 6. In terms of helping the innocent vs. helping the guilty, the right to silence scores even worse than that, since it disproportionately benefits the guilty (who might make a mistake while coming up with an alibi).

• FAIL4 -- confusing a different "right" that is separate from the Fifth Amendment right against self-incrimination. An easy test is that if you still have certain rights even when your right against self-incrimination does not apply because you've been granted immunity, then those rights must exist separately. (e.g. the right not to be tortured, and the right not to be held indefinitely without a trial.)

In addition, feel free to call out SUPERFAIL for any comments along the lines of:

• "This article has so many false premises that I scarcely know where to begin. I would have cited at least one example to support my point, but I was masturbating to the sound of my own superbly polished writing skills and I just came all over the keyboard."
• "Dammit Bennett! I am a [Supreme Court justice / federal prosecutor / law professor / frequent TiVo'er of Law And Order: Mattress Tag Removal] and you are writing about things you know nothing about! There is a reason we don't do things the way you're suggesting! In fact there's a very good reason we don't do things that way, and I'm going to tell you what it is: It's because that's not the way we do things."
• "I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article, because the problem couldn't possibly be with my oh hey look a cloud."

So perhaps someone will email me a scenario illustrating the benefits of the Fifth Amendment that I haven't considered here. At least, I hope so. It would be disturbing to think that we've built a whole legal edifice in the United States (and many other countries) on a "right" that has no rational basis.

Unfortunately, even if such a rational defense of the Fifth Amendment does exist, I still believe that many of the defenses of the Fifth Amendment that people have been giving me, are flawed, for the reasons listed above. (If people ever thought about it for one minute, wouldn't they realize that the right not to be tortured by the police is logically distinct from the right to refuse to answer a question about whether you committed a crime?) If large numbers of people believe the Fifth Amendment is sacred without ever thinking about whether it makes sense, that's a broader problem. What other cherished beliefs that we hold, that we don't think carefully about?

Bennett Haselton writes with his take on a case going back and forth in U.S. courts right now about whether a defendant can be ordered to decrypt his own hard drives when they may incriminate him. "A Wisconsin defendant in a criminal child-pornography case recently invoked his Fifth Amendment right to avoid giving the FBI the password to decrypt his hard drive. At the risk of alienating fellow civil-libertarians, I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination. So I pose this logical puzzle: come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference." Read on for the rest of Bennett's thoughts.

Wisconsin computer scientist Jeffrey Feldman was arrested on child pornography charges and ordered to give his hard drive decryption password to the FBI. He refused, claiming a Fifth Amendment right to refuse to hand over his password. A magistrate agreed with Feldman, then later changed his mind, but then on June 4th a judge blocked the order demanding that Feldman decrypt the hard drive.

So I will give up some civil libertarian cred and admit that, compared to, say, the free speech guarantees in the First Amendment, I've never seen what's so great about the Fifth Amendment "right against self-incrimination" -- not just as it applies to computer passwords, but in general. (Hereinafter I'm just going to refer to the Fifth Amendment right to remain silent as the "Fifth Amendment", even though there are other rights encapsulated in the Fifth Amendment, such as the right against double jeopardy.) I'm not debating the legal technicalities of the judges' decisions, since they take the "right against self-incrimination" as a given; I'm questioning the value of that "right" in itself.

Before you read any further, this is a pseudo-contest in which I'm soliciting answers in the form of a specific, precisely defined scenario in which you think that the Fifth Amendment makes a positive difference (i.e. that the outcome in a world with the Fifth Amendment, is better than the outcome in a world without the Fifth Amendment, even if you hold all other assumptions constant). If you disagree with everything I say, then the way to show that is to post a scenario that follows all the rules of the contest.

Now, obviously, I am not saying that the police ought to be able to beat information out of you. (The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.) But the "right against self-incrimination" says two things that never made sense to me. The first is that you can refuse to answer a point-blank question asking whether you committed a crime, even if the question elicits no other information that ought to remain private. The second is that if you refuse to answer, a court cannot even consider that as a factor in determining the likelihood of guilt. The first seems dubious as a moral principle; the second actually departs from reality, for no good reason that I can see.

Take first the "right" to refuse to answer. Now, I agree that if the government asks you, say, "What books are you reading these days?", the correct answer is "None of your damn business." Nobody else has the right to know what's on your reading list. However, if a murder is committed, pretty much everyone agrees that it is the state's legitimate business (that is, everyone's business) whether you committed the murder or not. What's the philosophical argument that you shouldn't have to answer "Yes" or "No" if the police ask if you committed the murder?

Compare that to the collateral damage caused by, for example, a search warrant. If you accept that the police have a "right" to know whether your house contains a bloody knife used in a recent murder, then a search could turn up the knife, but there's always the risk that a search of an innocent person's house would penalize them by exposing their private information and belongings. By contrast, the direct question "Did you do it?" is like a "search" that targets only the evidence that is relevant to the case, and nothing else. A physical analogy might be the police scanning a neighborhood with a Geiger counter that detects only illegal weapons-grade plutonium; I'd be kind of OK with that. (Actually, being asked a question is even less invasive, since you don't have the option of refusing the search or the Geiger counter, but you have the option of refusing to answer a question and facing the consequences.)

Now, you shouldn't have to answer questions that are none of anyone else's business; if your alibi for the night of the murder is that you were at a somewhere you're embarrassed to mention, you should be allowed to say, "I didn't commit the murder, but I would prefer not to tell you where I was." But Fifth Amendment absolutists would say that you don't even have to answer the question of whether you committed the murder at all. That, to me, seems absurd. Isn't society entitled to know whether you committed the murder or not?

Perhaps people's discomfort with this reasoning stems from a feeling that the government has no right to interfere with your life at all, unless you've been convicted of a crime. But, rightly or wrongly, the police are empowered to make arrests, search people's houses with a warrant, chase after people feeling the scene of a crime, and take other actions even against people who haven't been convicted of anything. Law enforcement wouldn't be able to function at all without most of these powers, and while those powers can be and have been grossly abused, the solution is to limit those powers, not abolish them entirely. (That might be an argument for giving people the right to remain silent when questioned or arrested by the police, but still empowering judges to issue warrants requiring a defendant to answer a question, even if the answer could be "self-incriminating".) Compared to the possibility of getting arrested or having your house searched, the possibility of simply being required to have the exchange -- "You were walking away from the apartment after the murder, did you do it?" "No" -- seems like a pretty minor inconvenience. (Yes, if the police keep badgering and harassing me with the same questions, or if courts refuse to believe me and try to railroad me anyway, then that's a problem, but it's a separate problem -- we'll get to that in a second.)

Moving on to the second implication, which is that courts cannot weigh your silence in determining the likelihood of your guilt. This goes against the common sense that you would use in your everyday life. If you had two roommates, you knew one of them stole your laptop, you asked both where they were at the time, and one of them immediately told you where they were (giving a story that their friends could corroborate), and other refused even to answer "Yes" or "No" to the question of whether they stole it, what would you think? I'm not saying that a person's silence should ever be considered proof of guilt, but the likelihood of guilt is a probability question, which can be assessed using multiple factors, each of which individually might not be enough to prove guilt by itself. Is the second roommate's silence relevant to your estimation of their guilt? Of course it is. If you would use that factor in your own reasoning, why shouldn't a court? (And in fact, your silence can be considered relevant in a civil lawsuit, just not in a criminal case.)

Now, there are times when the government's evidentiary standards should deviate from common sense. For example, if you find evidence of an affair by snooping in your spouse's email, you may feel guilty about snooping, but you're certainly not going to forget what you found, just because the "evidence" was obtained improperly. The state, on the other hand, is mandated to "forget" any evidence that's obtained in violation of a defendant's rights (for example, if the police break in and search a residence without a warrant) -- that evidence cannot be used in a trial. However, in that case the bar on improperly obtained evidence serves a clear purpose -- it removes any incentive for the police to obtain evidence by breaking and entering. There's no obvious similar reason why a person's refusal to answer a question shouldn't be considered relevant to the likelihood of their guilt.

For these two reasons, I can't think of a precisely defined scenario in which the Fifth Amendment makes a positive difference, i.e. the outcome in the case where the Fifth Amendment does exist, is better than the outcome in a hypothetical world where the Fifth Amendment does not exist, if you hold all other assumptions constant.

My own high school civics teacher gave the example of an overzealous prosecutor determined to convict an innocent defendant of murder, as an example of the importance of the Fifth Amendment. I asked why, even without Fifth Amendment rights, the defendant couldn't just say that they were innocent. "Aha!" said the teacher, mimicking the evil tone of a corrupt prosecutor, "We know you're lying, now we'll convict you of murder and for lying to the court!"

This was the first of many "scenarios" that I've heard supposedly illustrating the benefits of the Fifth Amendment, that didn't hold up under scrutiny. For the government to convict you of lying about not committing the murder, they would also have to convict you of the murder, and if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent. Now, obviously we should stop corrupt prosecutors from being able to railroad people, but that's a separate problem. The right to remain silent doesn't do you much good if the government is going to forge enough "evidence" (or ignore the lack of evidence) to convict you of murder anyway.

So what I'm looking for (email me below, and also post in comments) is a precisely defined scenario that meets all of the following criteria:

1. The outcome in the world where we do have the Fifth Amendment, is clearly different from the outcome in a hypothetical world where the Fifth Amendment does not exist, even while holding all other assumptions constant. (So the "corrupt overzealous prosecutor" scenario fails that test, because if you assume the government can convict an innocent person of murder without regard for facts or evidence, they can do that even if you refuse to testify.)

2. The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world. We can be very permissive about what is considered "better", but there are some limits -- one person, for example, gave me an example of a guilty person who used the Fifth Amendment to avoid giving testimony that might contradict evidence that is discovered later. I pointed out that giving a guilty person a chance to avoid tripping himself up was hardly a good thing, to which he replied, "Oh... right."

3. The "benefit" can't be something that benefits all suspects equally, whether they're innocent, guilty of violating a just law, or guilty of violating an unjust law. Several people have brought up to me the example of the McCarthy hearings, when those being questioned cited the Fifth Amendment as the basis for refusing to answer red-hunt questions.

   Now, most people today remember the McCarthy hearings as an example of grotesque government overreach, and anything that hampers enforcement of an unjust law would be viewed positively in that light. The problem with this defense of the Fifth Amendment is that if it hampers all law enforcement efforts equally, then you might as well just roll a dice every time a suspect is arrested, and let them go if it comes up a 6. Clearly, this is a "limit on government power", which would benefit suspects who are innocent, as well as benefiting people who are guilty of violating an unjust law (however you define that). But since it would "help" all other criminal defendants, too, most people would consider it a silly idea. A defense of the Fifth Amendment along those lines would have to show how it disproportionately benefits people who are innocent, or who have violated an unjust law. (Your argument could depend on what you consider an "unjust law", but you would have to at least make the argument.)

4. The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination. I've had it suggested to me that without the Fifth Amendment, the police would just beat people into confessing. But of course the right not to be beaten by the police is separate from the right to remain silent.

   The easiest way to see this is to consider cases where the Fifth Amendment right to silence does not apply. For example, if the government grants you immunity, then your answers cannot incriminate you, but since nothing you say will incriminate you, the government can then force you to answer the question or go to jail for contempt of court. (There is actually no literal "right to remain silent"; it's a "right against self-incrimination". So take away the possibility of self-incrimination, and you have to talk.) This is a controversial exception, but it's useful for this discussion because it demonstrates that certain rights exist separately from the right against self-incrimination. Obviously, even if the government grants you immunity so that you have to answer questions or go to jail, they still can't torture you for information.

   Similarly, someone suggested that without the Fifth Amendment, the police could just keep on questioning you as a means of detaining you without making an arrest. But, separately from the Fifth Amendment right to silence, there are limits (albeit fuzzy ones) on how long the police can detain you if they don't arrest you. (And then once you're arrested, limits on how long they can hold you without charging you.) As Flex Your Rights (with multiple lawyers on their board) says, "If you choose to challenge a detention, your lawyer will have to argue that police kept you longer than necessary under the circumstances." That's an important curb on police power, and that could be apply if the police keep asking you repetitive or irrelevant questions just as a means of holding you without arresting you.

   So again, even if the government grants you immunity so that you have to answer, they still can't keep asking you the same questions as a means of detaining you indefinitely. That means that right exists separately from the right against self-incrimination.

5. If the argument has major implications for the competency of the courts generally, then address those implications. This is not really a "pass/fail" criterion, because implications can be open-ended.

   I'm thinking in particular of the following argument: Without the Fifth Amendment, the police might adopt a strategy of arresting a suspect and asking him questions in such a way to make him flustered and contradict himself, even if he's innocent. That testimony might then be used to convict him.

   Now, this scenario passes criterion #1 above (with the Fifth Amendment, suspects can clam up and avoid this trap). It also obviously passes criterion #2 - innocent suspects remaining free is better than innocent suspects going to jail. I do think it might fail criterion #3 -- if innocent suspects become flustered and contradict themselves, that should happen at least as often for guilty suspects, too, who are after all lying.

   But there's actually a bigger problem here. It's well known that innocent people can become flustered and contradict themselves under prolonged grilling. If the police, judges, and juries, are so incompetent at evaluating evidence that they would convict you because you contradicted yourself while being questioned about a murder, then that is the real problem -- that the state simply cannot evaluate evidence competently. By giving people a Fifth Amendment right to remain silent under questioning, you've just applied a band-aid by exempting one type of evidence from being used to railroad an innocent person. You haven't solved the competency problem as it applies to circumstantial evidence, unreliable eyewitness testimony, the Prosecutor's fallacy, compromised physical evidence, untrustworthy witnesses, and a host of other potential sources of error.

   So yes, this is a logically consistent defense of the Fifth Amendment -- but realize that it implies we're living under a criminal justice system that can't find its ass with both hands, and perhaps that's the larger problem that should be addressed.

So. I'm interested in whether there is a precisely defined scenario that passes all of the criteria above. You can email me at Bennett at peacefire dot org and put "Fifth Amendment" in the subject line, and also post your suggestion in the comments.

Since I might not be by my computer when the story runs, I'm deputizing our readers to call out FAIL codes for certain responses that are missing obvious points. If the poster is being a dick, then be a dick when calling FAIL codes on them; if the person is participating constructively in the discussion and at least trying to solve the posed problem, then still use the FAIL codes if they apply, but try not to be a dick. Your arsenal:

• FAIL0 -- not specifying a scenario. This does not apply to informative comments; someone might have something useful to say even if it's not an answer to the challenge posed by the article. However if someone starts spouting off trashing the whole article and thinking that they have negated its conclusion, then unless they actually specify a scenario, call them out with a FAIL0. "If you ever bothered to read your American history, you would understand that the Fifth Amendment was adopted as an important bulwark agai--" FAIL0. "Bennett never went to law school so he clearly isn't qual--" FAIL0. "This article has so many errors that I scarcely know where to--" FAIL0. You need to pose a scenario or you haven't answered the question.

  Also, anything with "Go and read... [some third-party source]" without specifying a scenario is a FAIL0. It doesn't take more than a few sentences to summarize a scenario.

• FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not. (I keep hearing the example of the police beating a suspect to extract a confession; like I said, the right against torture whether you have the Fifth Amendment right to silence or not.)

  Or suppose you assume the police would lie and say, "We never laid a hand on him, but he signed the confession anyway." Well, even in a world with the Fifth Amendment, clearly if the police are going to beat you into submission and lie about it, they can still just beat you into submission and say, "He voluntarily waived his Fifth Amendment rights without us touching him, and confessed." For that matter, if the police are willing to lie, they can lie about your confession even if you don't confess at all. In either case, it's not clear that the Fifth Amendment would affect the outcome if you hold all other assumptions constant about whether the police are willing to lie, how much the suspect can hold out under coercion, etc.

• FAIL2 -- not explaining why the outcome in the Fifth Amendment case is better. (So no, "It gives a guilty person time to come up with an alibi.")

• FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty. Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences can be made from that, and yes, that will benefit some innocent people who refuse to speak to the government as a matter of deeply held principle, but it's going to benefit guilty people at least as often who just don't want to be caught in a lie. As I said, if you want to benefit all criminal defendants equally, you could just roll a dice and acquit whenever it comes up a 6. In terms of helping the innocent vs. helping the guilty, the right to silence scores even worse than that, since it disproportionately benefits the guilty (who might make a mistake while coming up with an alibi).

• FAIL4 -- confusing a different "right" that is separate from the Fifth Amendment right against self-incrimination. An easy test is that if you still have certain rights even when your right against self-incrimination does not apply because you've been granted immunity, then those rights must exist separately. (e.g. the right not to be tortured, and the right not to be held indefinitely without a trial.)

In addition, feel free to call out SUPERFAIL for any comments along the lines of:

• "This article has so many false premises that I scarcely know where to begin. I would have cited at least one example to support my point, but I was masturbating to the sound of my own superbly polished writing skills and I just came all over the keyboard."
• "Dammit Bennett! I am a [Supreme Court justice / federal prosecutor / law professor / frequent TiVo'er of Law And Order: Mattress Tag Removal] and you are writing about things you know nothing about! There is a reason we don't do things the way you're suggesting! In fact there's a very good reason we don't do things that way, and I'm going to tell you what it is: It's because that's not the way we do things."
• "I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article, because the problem couldn't possibly be with my oh hey look a cloud."

So perhaps someone will email me a scenario illustrating the benefits of the Fifth Amendment that I haven't considered here. At least, I hope so. It would be disturbing to think that we've built a whole legal edifice in the United States (and many other countries) on a "right" that has no rational basis.

Unfortunately, even if such a rational defense of the Fifth Amendment does exist, I still believe that many of the defenses of the Fifth Amendment that people have been giving me, are flawed, for the reasons listed above. (If people ever thought about it for one minute, wouldn't they realize that the right not to be tortured by the police is logically distinct from the right to refuse to answer a question about whether you committed a crime?) If large numbers of people believe the Fifth Amendment is sacred without ever thinking about whether it makes sense, that's a broader problem. What other cherished beliefs that we hold, that we don't think carefully about?

Bennett Haselton writes with his take on a case going back and forth in U.S. courts right now about whether a defendant can be ordered to decrypt his own hard drives when they may incriminate him. "A Wisconsin defendant in a criminal child-pornography case recently invoked his Fifth Amendment right to avoid giving the FBI the password to decrypt his hard drive. At the risk of alienating fellow civil-libertarians, I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination. So I pose this logical puzzle: come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference." Read on for the rest of Bennett's thoughts.

Wisconsin computer scientist Jeffrey Feldman was arrested on child pornography charges and ordered to give his hard drive decryption password to the FBI. He refused, claiming a Fifth Amendment right to refuse to hand over his password. A magistrate agreed with Feldman, then later changed his mind, but then on June 4th a judge blocked the order demanding that Feldman decrypt the hard drive.

So I will give up some civil libertarian cred and admit that, compared to, say, the free speech guarantees in the First Amendment, I've never seen what's so great about the Fifth Amendment "right against self-incrimination" -- not just as it applies to computer passwords, but in general. (Hereinafter I'm just going to refer to the Fifth Amendment right to remain silent as the "Fifth Amendment", even though there are other rights encapsulated in the Fifth Amendment, such as the right against double jeopardy.) I'm not debating the legal technicalities of the judges' decisions, since they take the "right against self-incrimination" as a given; I'm questioning the value of that "right" in itself.

Before you read any further, this is a pseudo-contest in which I'm soliciting answers in the form of a specific, precisely defined scenario in which you think that the Fifth Amendment makes a positive difference (i.e. that the outcome in a world with the Fifth Amendment, is better than the outcome in a world without the Fifth Amendment, even if you hold all other assumptions constant). If you disagree with everything I say, then the way to show that is to post a scenario that follows all the rules of the contest.

Now, obviously, I am not saying that the police ought to be able to beat information out of you. (The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.) But the "right against self-incrimination" says two things that never made sense to me. The first is that you can refuse to answer a point-blank question asking whether you committed a crime, even if the question elicits no other information that ought to remain private. The second is that if you refuse to answer, a court cannot even consider that as a factor in determining the likelihood of guilt. The first seems dubious as a moral principle; the second actually departs from reality, for no good reason that I can see.

Take first the "right" to refuse to answer. Now, I agree that if the government asks you, say, "What books are you reading these days?", the correct answer is "None of your damn business." Nobody else has the right to know what's on your reading list. However, if a murder is committed, pretty much everyone agrees that it is the state's legitimate business (that is, everyone's business) whether you committed the murder or not. What's the philosophical argument that you shouldn't have to answer "Yes" or "No" if the police ask if you committed the murder?

Compare that to the collateral damage caused by, for example, a search warrant. If you accept that the police have a "right" to know whether your house contains a bloody knife used in a recent murder, then a search could turn up the knife, but there's always the risk that a search of an innocent person's house would penalize them by exposing their private information and belongings. By contrast, the direct question "Did you do it?" is like a "search" that targets only the evidence that is relevant to the case, and nothing else. A physical analogy might be the police scanning a neighborhood with a Geiger counter that detects only illegal weapons-grade plutonium; I'd be kind of OK with that. (Actually, being asked a question is even less invasive, since you don't have the option of refusing the search or the Geiger counter, but you have the option of refusing to answer a question and facing the consequences.)

Now, you shouldn't have to answer questions that are none of anyone else's business; if your alibi for the night of the murder is that you were at a somewhere you're embarrassed to mention, you should be allowed to say, "I didn't commit the murder, but I would prefer not to tell you where I was." But Fifth Amendment absolutists would say that you don't even have to answer the question of whether you committed the murder at all. That, to me, seems absurd. Isn't society entitled to know whether you committed the murder or not?

Perhaps people's discomfort with this reasoning stems from a feeling that the government has no right to interfere with your life at all, unless you've been convicted of a crime. But, rightly or wrongly, the police are empowered to make arrests, search people's houses with a warrant, chase after people feeling the scene of a crime, and take other actions even against people who haven't been convicted of anything. Law enforcement wouldn't be able to function at all without most of these powers, and while those powers can be and have been grossly abused, the solution is to limit those powers, not abolish them entirely. (That might be an argument for giving people the right to remain silent when questioned or arrested by the police, but still empowering judges to issue warrants requiring a defendant to answer a question, even if the answer could be "self-incriminating".) Compared to the possibility of getting arrested or having your house searched, the possibility of simply being required to have the exchange -- "You were walking away from the apartment after the murder, did you do it?" "No" -- seems like a pretty minor inconvenience. (Yes, if the police keep badgering and harassing me with the same questions, or if courts refuse to believe me and try to railroad me anyway, then that's a problem, but it's a separate problem -- we'll get to that in a second.)

Moving on to the second implication, which is that courts cannot weigh your silence in determining the likelihood of your guilt. This goes against the common sense that you would use in your everyday life. If you had two roommates, you knew one of them stole your laptop, you asked both where they were at the time, and one of them immediately told you where they were (giving a story that their friends could corroborate), and other refused even to answer "Yes" or "No" to the question of whether they stole it, what would you think? I'm not saying that a person's silence should ever be considered proof of guilt, but the likelihood of guilt is a probability question, which can be assessed using multiple factors, each of which individually might not be enough to prove guilt by itself. Is the second roommate's silence relevant to your estimation of their guilt? Of course it is. If you would use that factor in your own reasoning, why shouldn't a court? (And in fact, your silence can be considered relevant in a civil lawsuit, just not in a criminal case.)

Now, there are times when the government's evidentiary standards should deviate from common sense. For example, if you find evidence of an affair by snooping in your spouse's email, you may feel guilty about snooping, but you're certainly not going to forget what you found, just because the "evidence" was obtained improperly. The state, on the other hand, is mandated to "forget" any evidence that's obtained in violation of a defendant's rights (for example, if the police break in and search a residence without a warrant) -- that evidence cannot be used in a trial. However, in that case the bar on improperly obtained evidence serves a clear purpose -- it removes any incentive for the police to obtain evidence by breaking and entering. There's no obvious similar reason why a person's refusal to answer a question shouldn't be considered relevant to the likelihood of their guilt.

For these two reasons, I can't think of a precisely defined scenario in which the Fifth Amendment makes a positive difference, i.e. the outcome in the case where the Fifth Amendment does exist, is better than the outcome in a hypothetical world where the Fifth Amendment does not exist, if you hold all other assumptions constant.

My own high school civics teacher gave the example of an overzealous prosecutor determined to convict an innocent defendant of murder, as an example of the importance of the Fifth Amendment. I asked why, even without Fifth Amendment rights, the defendant couldn't just say that they were innocent. "Aha!" said the teacher, mimicking the evil tone of a corrupt prosecutor, "We know you're lying, now we'll convict you of murder and for lying to the court!"

This was the first of many "scenarios" that I've heard supposedly illustrating the benefits of the Fifth Amendment, that didn't hold up under scrutiny. For the government to convict you of lying about not committing the murder, they would also have to convict you of the murder, and if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent. Now, obviously we should stop corrupt prosecutors from being able to railroad people, but that's a separate problem. The right to remain silent doesn't do you much good if the government is going to forge enough "evidence" (or ignore the lack of evidence) to convict you of murder anyway.

So what I'm looking for (email me below, and also post in comments) is a precisely defined scenario that meets all of the following criteria:

1. The outcome in the world where we do have the Fifth Amendment, is clearly different from the outcome in a hypothetical world where the Fifth Amendment does not exist, even while holding all other assumptions constant. (So the "corrupt overzealous prosecutor" scenario fails that test, because if you assume the government can convict an innocent person of murder without regard for facts or evidence, they can do that even if you refuse to testify.)

2. The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world. We can be very permissive about what is considered "better", but there are some limits -- one person, for example, gave me an example of a guilty person who used the Fifth Amendment to avoid giving testimony that might contradict evidence that is discovered later. I pointed out that giving a guilty person a chance to avoid tripping himself up was hardly a good thing, to which he replied, "Oh... right."

3. The "benefit" can't be something that benefits all suspects equally, whether they're innocent, guilty of violating a just law, or guilty of violating an unjust law. Several people have brought up to me the example of the McCarthy hearings, when those being questioned cited the Fifth Amendment as the basis for refusing to answer red-hunt questions.

   Now, most people today remember the McCarthy hearings as an example of grotesque government overreach, and anything that hampers enforcement of an unjust law would be viewed positively in that light. The problem with this defense of the Fifth Amendment is that if it hampers all law enforcement efforts equally, then you might as well just roll a dice every time a suspect is arrested, and let them go if it comes up a 6. Clearly, this is a "limit on government power", which would benefit suspects who are innocent, as well as benefiting people who are guilty of violating an unjust law (however you define that). But since it would "help" all other criminal defendants, too, most people would consider it a silly idea. A defense of the Fifth Amendment along those lines would have to show how it disproportionately benefits people who are innocent, or who have violated an unjust law. (Your argument could depend on what you consider an "unjust law", but you would have to at least make the argument.)

4. The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination. I've had it suggested to me that without the Fifth Amendment, the police would just beat people into confessing. But of course the right not to be beaten by the police is separate from the right to remain silent.

   The easiest way to see this is to consider cases where the Fifth Amendment right to silence does not apply. For example, if the government grants you immunity, then your answers cannot incriminate you, but since nothing you say will incriminate you, the government can then force you to answer the question or go to jail for contempt of court. (There is actually no literal "right to remain silent"; it's a "right against self-incrimination". So take away the possibility of self-incrimination, and you have to talk.) This is a controversial exception, but it's useful for this discussion because it demonstrates that certain rights exist separately from the right against self-incrimination. Obviously, even if the government grants you immunity so that you have to answer questions or go to jail, they still can't torture you for information.

   Similarly, someone suggested that without the Fifth Amendment, the police could just keep on questioning you as a means of detaining you without making an arrest. But, separately from the Fifth Amendment right to silence, there are limits (albeit fuzzy ones) on how long the police can detain you if they don't arrest you. (And then once you're arrested, limits on how long they can hold you without charging you.) As Flex Your Rights (with multiple lawyers on their board) says, "If you choose to challenge a detention, your lawyer will have to argue that police kept you longer than necessary under the circumstances." That's an important curb on police power, and that could be apply if the police keep asking you repetitive or irrelevant questions just as a means of holding you without arresting you.

   So again, even if the government grants you immunity so that you have to answer, they still can't keep asking you the same questions as a means of detaining you indefinitely. That means that right exists separately from the right against self-incrimination.

5. If the argument has major implications for the competency of the courts generally, then address those implications. This is not really a "pass/fail" criterion, because implications can be open-ended.

   I'm thinking in particular of the following argument: Without the Fifth Amendment, the police might adopt a strategy of arresting a suspect and asking him questions in such a way to make him flustered and contradict himself, even if he's innocent. That testimony might then be used to convict him.

   Now, this scenario passes criterion #1 above (with the Fifth Amendment, suspects can clam up and avoid this trap). It also obviously passes criterion #2 - innocent suspects remaining free is better than innocent suspects going to jail. I do think it might fail criterion #3 -- if innocent suspects become flustered and contradict themselves, that should happen at least as often for guilty suspects, too, who are after all lying.

   But there's actually a bigger problem here. It's well known that innocent people can become flustered and contradict themselves under prolonged grilling. If the police, judges, and juries, are so incompetent at evaluating evidence that they would convict you because you contradicted yourself while being questioned about a murder, then that is the real problem -- that the state simply cannot evaluate evidence competently. By giving people a Fifth Amendment right to remain silent under questioning, you've just applied a band-aid by exempting one type of evidence from being used to railroad an innocent person. You haven't solved the competency problem as it applies to circumstantial evidence, unreliable eyewitness testimony, the Prosecutor's fallacy, compromised physical evidence, untrustworthy witnesses, and a host of other potential sources of error.

   So yes, this is a logically consistent defense of the Fifth Amendment -- but realize that it implies we're living under a criminal justice system that can't find its ass with both hands, and perhaps that's the larger problem that should be addressed.

So. I'm interested in whether there is a precisely defined scenario that passes all of the criteria above. You can email me at Bennett at peacefire dot org and put "Fifth Amendment" in the subject line, and also post your suggestion in the comments.

Since I might not be by my computer when the story runs, I'm deputizing our readers to call out FAIL codes for certain responses that are missing obvious points. If the poster is being a dick, then be a dick when calling FAIL codes on them; if the person is participating constructively in the discussion and at least trying to solve the posed problem, then still use the FAIL codes if they apply, but try not to be a dick. Your arsenal:

• FAIL0 -- not specifying a scenario. This does not apply to informative comments; someone might have something useful to say even if it's not an answer to the challenge posed by the article. However if someone starts spouting off trashing the whole article and thinking that they have negated its conclusion, then unless they actually specify a scenario, call them out with a FAIL0. "If you ever bothered to read your American history, you would understand that the Fifth Amendment was adopted as an important bulwark agai--" FAIL0. "Bennett never went to law school so he clearly isn't qual--" FAIL0. "This article has so many errors that I scarcely know where to--" FAIL0. You need to pose a scenario or you haven't answered the question.

  Also, anything with "Go and read... [some third-party source]" without specifying a scenario is a FAIL0. It doesn't take more than a few sentences to summarize a scenario.

• FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not. (I keep hearing the example of the police beating a suspect to extract a confession; like I said, the right against torture whether you have the Fifth Amendment right to silence or not.)

  Or suppose you assume the police would lie and say, "We never laid a hand on him, but he signed the confession anyway." Well, even in a world with the Fifth Amendment, clearly if the police are going to beat you into submission and lie about it, they can still just beat you into submission and say, "He voluntarily waived his Fifth Amendment rights without us touching him, and confessed." For that matter, if the police are willing to lie, they can lie about your confession even if you don't confess at all. In either case, it's not clear that the Fifth Amendment would affect the outcome if you hold all other assumptions constant about whether the police are willing to lie, how much the suspect can hold out under coercion, etc.

• FAIL2 -- not explaining why the outcome in the Fifth Amendment case is better. (So no, "It gives a guilty person time to come up with an alibi.")

• FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty. Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences can be made from that, and yes, that will benefit some innocent people who refuse to speak to the government as a matter of deeply held principle, but it's going to benefit guilty people at least as often who just don't want to be caught in a lie. As I said, if you want to benefit all criminal defendants equally, you could just roll a dice and acquit whenever it comes up a 6. In terms of helping the innocent vs. helping the guilty, the right to silence scores even worse than that, since it disproportionately benefits the guilty (who might make a mistake while coming up with an alibi).

• FAIL4 -- confusing a different "right" that is separate from the Fifth Amendment right against self-incrimination. An easy test is that if you still have certain rights even when your right against self-incrimination does not apply because you've been granted immunity, then those rights must exist separately. (e.g. the right not to be tortured, and the right not to be held indefinitely without a trial.)

In addition, feel free to call out SUPERFAIL for any comments along the lines of:

• "This article has so many false premises that I scarcely know where to begin. I would have cited at least one example to support my point, but I was masturbating to the sound of my own superbly polished writing skills and I just came all over the keyboard."
• "Dammit Bennett! I am a [Supreme Court justice / federal prosecutor / law professor / frequent TiVo'er of Law And Order: Mattress Tag Removal] and you are writing about things you know nothing about! There is a reason we don't do things the way you're suggesting! In fact there's a very good reason we don't do things that way, and I'm going to tell you what it is: It's because that's not the way we do things."
• "I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article, because the problem couldn't possibly be with my oh hey look a cloud."

So perhaps someone will email me a scenario illustrating the benefits of the Fifth Amendment that I haven't considered here. At least, I hope so. It would be disturbing to think that we've built a whole legal edifice in the United States (and many other countries) on a "right" that has no rational basis.

Unfortunately, even if such a rational defense of the Fifth Amendment does exist, I still believe that many of the defenses of the Fifth Amendment that people have been giving me, are flawed, for the reasons listed above. (If people ever thought about it for one minute, wouldn't they realize that the right not to be tortured by the police is logically distinct from the right to refuse to answer a question about whether you committed a crime?) If large numbers of people believe the Fifth Amendment is sacred without ever thinking about whether it makes sense, that's a broader problem. What other cherished beliefs that we hold, that we don't think carefully about?

Bennett Haselton writes with his take on a case going back and forth in U.S. courts right now about whether a defendant can be ordered to decrypt his own hard drives when they may incriminate him. "A Wisconsin defendant in a criminal child-pornography case recently invoked his Fifth Amendment right to avoid giving the FBI the password to decrypt his hard drive. At the risk of alienating fellow civil-libertarians, I admit I've never seen the particular value of the Fifth Amendment right against self-incrimination. So I pose this logical puzzle: come up with a specific, precisely defined scenario, where the Fifth Amendment makes a positive difference." Read on for the rest of Bennett's thoughts.

Wisconsin computer scientist Jeffrey Feldman was arrested on child pornography charges and ordered to give his hard drive decryption password to the FBI. He refused, claiming a Fifth Amendment right to refuse to hand over his password. A magistrate agreed with Feldman, then later changed his mind, but then on June 4th a judge blocked the order demanding that Feldman decrypt the hard drive.

So I will give up some civil libertarian cred and admit that, compared to, say, the free speech guarantees in the First Amendment, I've never seen what's so great about the Fifth Amendment "right against self-incrimination" -- not just as it applies to computer passwords, but in general. (Hereinafter I'm just going to refer to the Fifth Amendment right to remain silent as the "Fifth Amendment", even though there are other rights encapsulated in the Fifth Amendment, such as the right against double jeopardy.) I'm not debating the legal technicalities of the judges' decisions, since they take the "right against self-incrimination" as a given; I'm questioning the value of that "right" in itself.

Before you read any further, this is a pseudo-contest in which I'm soliciting answers in the form of a specific, precisely defined scenario in which you think that the Fifth Amendment makes a positive difference (i.e. that the outcome in a world with the Fifth Amendment, is better than the outcome in a world without the Fifth Amendment, even if you hold all other assumptions constant). If you disagree with everything I say, then the way to show that is to post a scenario that follows all the rules of the contest.

Now, obviously, I am not saying that the police ought to be able to beat information out of you. (The right not to be tortured by the police exists separately from the right to remain silent -- more on that later.) But the "right against self-incrimination" says two things that never made sense to me. The first is that you can refuse to answer a point-blank question asking whether you committed a crime, even if the question elicits no other information that ought to remain private. The second is that if you refuse to answer, a court cannot even consider that as a factor in determining the likelihood of guilt. The first seems dubious as a moral principle; the second actually departs from reality, for no good reason that I can see.

Take first the "right" to refuse to answer. Now, I agree that if the government asks you, say, "What books are you reading these days?", the correct answer is "None of your damn business." Nobody else has the right to know what's on your reading list. However, if a murder is committed, pretty much everyone agrees that it is the state's legitimate business (that is, everyone's business) whether you committed the murder or not. What's the philosophical argument that you shouldn't have to answer "Yes" or "No" if the police ask if you committed the murder?

Compare that to the collateral damage caused by, for example, a search warrant. If you accept that the police have a "right" to know whether your house contains a bloody knife used in a recent murder, then a search could turn up the knife, but there's always the risk that a search of an innocent person's house would penalize them by exposing their private information and belongings. By contrast, the direct question "Did you do it?" is like a "search" that targets only the evidence that is relevant to the case, and nothing else. A physical analogy might be the police scanning a neighborhood with a Geiger counter that detects only illegal weapons-grade plutonium; I'd be kind of OK with that. (Actually, being asked a question is even less invasive, since you don't have the option of refusing the search or the Geiger counter, but you have the option of refusing to answer a question and facing the consequences.)

Now, you shouldn't have to answer questions that are none of anyone else's business; if your alibi for the night of the murder is that you were at a somewhere you're embarrassed to mention, you should be allowed to say, "I didn't commit the murder, but I would prefer not to tell you where I was." But Fifth Amendment absolutists would say that you don't even have to answer the question of whether you committed the murder at all. That, to me, seems absurd. Isn't society entitled to know whether you committed the murder or not?

Perhaps people's discomfort with this reasoning stems from a feeling that the government has no right to interfere with your life at all, unless you've been convicted of a crime. But, rightly or wrongly, the police are empowered to make arrests, search people's houses with a warrant, chase after people feeling the scene of a crime, and take other actions even against people who haven't been convicted of anything. Law enforcement wouldn't be able to function at all without most of these powers, and while those powers can be and have been grossly abused, the solution is to limit those powers, not abolish them entirely. (That might be an argument for giving people the right to remain silent when questioned or arrested by the police, but still empowering judges to issue warrants requiring a defendant to answer a question, even if the answer could be "self-incriminating".) Compared to the possibility of getting arrested or having your house searched, the possibility of simply being required to have the exchange -- "You were walking away from the apartment after the murder, did you do it?" "No" -- seems like a pretty minor inconvenience. (Yes, if the police keep badgering and harassing me with the same questions, or if courts refuse to believe me and try to railroad me anyway, then that's a problem, but it's a separate problem -- we'll get to that in a second.)

Moving on to the second implication, which is that courts cannot weigh your silence in determining the likelihood of your guilt. This goes against the common sense that you would use in your everyday life. If you had two roommates, you knew one of them stole your laptop, you asked both where they were at the time, and one of them immediately told you where they were (giving a story that their friends could corroborate), and other refused even to answer "Yes" or "No" to the question of whether they stole it, what would you think? I'm not saying that a person's silence should ever be considered proof of guilt, but the likelihood of guilt is a probability question, which can be assessed using multiple factors, each of which individually might not be enough to prove guilt by itself. Is the second roommate's silence relevant to your estimation of their guilt? Of course it is. If you would use that factor in your own reasoning, why shouldn't a court? (And in fact, your silence can be considered relevant in a civil lawsuit, just not in a criminal case.)

Now, there are times when the government's evidentiary standards should deviate from common sense. For example, if you find evidence of an affair by snooping in your spouse's email, you may feel guilty about snooping, but you're certainly not going to forget what you found, just because the "evidence" was obtained improperly. The state, on the other hand, is mandated to "forget" any evidence that's obtained in violation of a defendant's rights (for example, if the police break in and search a residence without a warrant) -- that evidence cannot be used in a trial. However, in that case the bar on improperly obtained evidence serves a clear purpose -- it removes any incentive for the police to obtain evidence by breaking and entering. There's no obvious similar reason why a person's refusal to answer a question shouldn't be considered relevant to the likelihood of their guilt.

For these two reasons, I can't think of a precisely defined scenario in which the Fifth Amendment makes a positive difference, i.e. the outcome in the case where the Fifth Amendment does exist, is better than the outcome in a hypothetical world where the Fifth Amendment does not exist, if you hold all other assumptions constant.

My own high school civics teacher gave the example of an overzealous prosecutor determined to convict an innocent defendant of murder, as an example of the importance of the Fifth Amendment. I asked why, even without Fifth Amendment rights, the defendant couldn't just say that they were innocent. "Aha!" said the teacher, mimicking the evil tone of a corrupt prosecutor, "We know you're lying, now we'll convict you of murder and for lying to the court!"

This was the first of many "scenarios" that I've heard supposedly illustrating the benefits of the Fifth Amendment, that didn't hold up under scrutiny. For the government to convict you of lying about not committing the murder, they would also have to convict you of the murder, and if they can convict you of murder, then you're already screwed anyway, regardless of whether they also convict you of lying about being innocent. Now, obviously we should stop corrupt prosecutors from being able to railroad people, but that's a separate problem. The right to remain silent doesn't do you much good if the government is going to forge enough "evidence" (or ignore the lack of evidence) to convict you of murder anyway.

So what I'm looking for (email me below, and also post in comments) is a precisely defined scenario that meets all of the following criteria:

1. The outcome in the world where we do have the Fifth Amendment, is clearly different from the outcome in a hypothetical world where the Fifth Amendment does not exist, even while holding all other assumptions constant. (So the "corrupt overzealous prosecutor" scenario fails that test, because if you assume the government can convict an innocent person of murder without regard for facts or evidence, they can do that even if you refuse to testify.)

2. The outcome in the "Fifth Amendment" world is better than the outcome in the "no Fifth Amendment" world. We can be very permissive about what is considered "better", but there are some limits -- one person, for example, gave me an example of a guilty person who used the Fifth Amendment to avoid giving testimony that might contradict evidence that is discovered later. I pointed out that giving a guilty person a chance to avoid tripping himself up was hardly a good thing, to which he replied, "Oh... right."

3. The "benefit" can't be something that benefits all suspects equally, whether they're innocent, guilty of violating a just law, or guilty of violating an unjust law. Several people have brought up to me the example of the McCarthy hearings, when those being questioned cited the Fifth Amendment as the basis for refusing to answer red-hunt questions.

   Now, most people today remember the McCarthy hearings as an example of grotesque government overreach, and anything that hampers enforcement of an unjust law would be viewed positively in that light. The problem with this defense of the Fifth Amendment is that if it hampers all law enforcement efforts equally, then you might as well just roll a dice every time a suspect is arrested, and let them go if it comes up a 6. Clearly, this is a "limit on government power", which would benefit suspects who are innocent, as well as benefiting people who are guilty of violating an unjust law (however you define that). But since it would "help" all other criminal defendants, too, most people would consider it a silly idea. A defense of the Fifth Amendment along those lines would have to show how it disproportionately benefits people who are innocent, or who have violated an unjust law. (Your argument could depend on what you consider an "unjust law", but you would have to at least make the argument.)

4. The "benefit" can't be something that exists separately from the Fifth Amendment right against self-incrimination. I've had it suggested to me that without the Fifth Amendment, the police would just beat people into confessing. But of course the right not to be beaten by the police is separate from the right to remain silent.

   The easiest way to see this is to consider cases where the Fifth Amendment right to silence does not apply. For example, if the government grants you immunity, then your answers cannot incriminate you, but since nothing you say will incriminate you, the government can then force you to answer the question or go to jail for contempt of court. (There is actually no literal "right to remain silent"; it's a "right against self-incrimination". So take away the possibility of self-incrimination, and you have to talk.) This is a controversial exception, but it's useful for this discussion because it demonstrates that certain rights exist separately from the right against self-incrimination. Obviously, even if the government grants you immunity so that you have to answer questions or go to jail, they still can't torture you for information.

   Similarly, someone suggested that without the Fifth Amendment, the police could just keep on questioning you as a means of detaining you without making an arrest. But, separately from the Fifth Amendment right to silence, there are limits (albeit fuzzy ones) on how long the police can detain you if they don't arrest you. (And then once you're arrested, limits on how long they can hold you without charging you.) As Flex Your Rights (with multiple lawyers on their board) says, "If you choose to challenge a detention, your lawyer will have to argue that police kept you longer than necessary under the circumstances." That's an important curb on police power, and that could be apply if the police keep asking you repetitive or irrelevant questions just as a means of holding you without arresting you.

   So again, even if the government grants you immunity so that you have to answer, they still can't keep asking you the same questions as a means of detaining you indefinitely. That means that right exists separately from the right against self-incrimination.

5. If the argument has major implications for the competency of the courts generally, then address those implications. This is not really a "pass/fail" criterion, because implications can be open-ended.

   I'm thinking in particular of the following argument: Without the Fifth Amendment, the police might adopt a strategy of arresting a suspect and asking him questions in such a way to make him flustered and contradict himself, even if he's innocent. That testimony might then be used to convict him.

   Now, this scenario passes criterion #1 above (with the Fifth Amendment, suspects can clam up and avoid this trap). It also obviously passes criterion #2 - innocent suspects remaining free is better than innocent suspects going to jail. I do think it might fail criterion #3 -- if innocent suspects become flustered and contradict themselves, that should happen at least as often for guilty suspects, too, who are after all lying.

   But there's actually a bigger problem here. It's well known that innocent people can become flustered and contradict themselves under prolonged grilling. If the police, judges, and juries, are so incompetent at evaluating evidence that they would convict you because you contradicted yourself while being questioned about a murder, then that is the real problem -- that the state simply cannot evaluate evidence competently. By giving people a Fifth Amendment right to remain silent under questioning, you've just applied a band-aid by exempting one type of evidence from being used to railroad an innocent person. You haven't solved the competency problem as it applies to circumstantial evidence, unreliable eyewitness testimony, the Prosecutor's fallacy, compromised physical evidence, untrustworthy witnesses, and a host of other potential sources of error.

   So yes, this is a logically consistent defense of the Fifth Amendment -- but realize that it implies we're living under a criminal justice system that can't find its ass with both hands, and perhaps that's the larger problem that should be addressed.

So. I'm interested in whether there is a precisely defined scenario that passes all of the criteria above. You can email me at Bennett at peacefire dot org and put "Fifth Amendment" in the subject line, and also post your suggestion in the comments.

Since I might not be by my computer when the story runs, I'm deputizing our readers to call out FAIL codes for certain responses that are missing obvious points. If the poster is being a dick, then be a dick when calling FAIL codes on them; if the person is participating constructively in the discussion and at least trying to solve the posed problem, then still use the FAIL codes if they apply, but try not to be a dick. Your arsenal:

• FAIL0 -- not specifying a scenario. This does not apply to informative comments; someone might have something useful to say even if it's not an answer to the challenge posed by the article. However if someone starts spouting off trashing the whole article and thinking that they have negated its conclusion, then unless they actually specify a scenario, call them out with a FAIL0. "If you ever bothered to read your American history, you would understand that the Fifth Amendment was adopted as an important bulwark agai--" FAIL0. "Bennett never went to law school so he clearly isn't qual--" FAIL0. "This article has so many errors that I scarcely know where to--" FAIL0. You need to pose a scenario or you haven't answered the question.

  Also, anything with "Go and read... [some third-party source]" without specifying a scenario is a FAIL0. It doesn't take more than a few sentences to summarize a scenario.

• FAIL1 -- not explaining how the scenario gives different outcomes depending on whether we have a Fifth Amendment or not. (I keep hearing the example of the police beating a suspect to extract a confession; like I said, the right against torture whether you have the Fifth Amendment right to silence or not.)

  Or suppose you assume the police would lie and say, "We never laid a hand on him, but he signed the confession anyway." Well, even in a world with the Fifth Amendment, clearly if the police are going to beat you into submission and lie about it, they can still just beat you into submission and say, "He voluntarily waived his Fifth Amendment rights without us touching him, and confessed." For that matter, if the police are willing to lie, they can lie about your confession even if you don't confess at all. In either case, it's not clear that the Fifth Amendment would affect the outcome if you hold all other assumptions constant about whether the police are willing to lie, how much the suspect can hold out under coercion, etc.

• FAIL2 -- not explaining why the outcome in the Fifth Amendment case is better. (So no, "It gives a guilty person time to come up with an alibi.")

• FAIL3 -- the alleged "benefits" of the Fifth Amendment apply equally to the innocent and guilty, or disproportionately favor the guilty. Yes, it's harder for the state to get a conviction if you're allowed to remain silent and no inferences can be made from that, and yes, that will benefit some innocent people who refuse to speak to the government as a matter of deeply held principle, but it's going to benefit guilty people at least as often who just don't want to be caught in a lie. As I said, if you want to benefit all criminal defendants equally, you could just roll a dice and acquit whenever it comes up a 6. In terms of helping the innocent vs. helping the guilty, the right to silence scores even worse than that, since it disproportionately benefits the guilty (who might make a mistake while coming up with an alibi).

• FAIL4 -- confusing a different "right" that is separate from the Fifth Amendment right against self-incrimination. An easy test is that if you still have certain rights even when your right against self-incrimination does not apply because you've been granted immunity, then those rights must exist separately. (e.g. the right not to be tortured, and the right not to be held indefinitely without a trial.)

In addition, feel free to call out SUPERFAIL for any comments along the lines of:

• "This article has so many false premises that I scarcely know where to begin. I would have cited at least one example to support my point, but I was masturbating to the sound of my own superbly polished writing skills and I just came all over the keyboard."
• "Dammit Bennett! I am a [Supreme Court justice / federal prosecutor / law professor / frequent TiVo'er of Law And Order: Mattress Tag Removal] and you are writing about things you know nothing about! There is a reason we don't do things the way you're suggesting! In fact there's a very good reason we don't do things that way, and I'm going to tell you what it is: It's because that's not the way we do things."
• "I read as far as the second syllable of the fourth word and then stopped reading. The problem must be with the article, because the problem couldn't possibly be with my oh hey look a cloud."

So perhaps someone will email me a scenario illustrating the benefits of the Fifth Amendment that I haven't considered here. At least, I hope so. It would be disturbing to think that we've built a whole legal edifice in the United States (and many other countries) on a "right" that has no rational basis.

Unfortunately, even if such a rational defense of the Fifth Amendment does exist, I still believe that many of the defenses of the Fifth Amendment that people have been giving me, are flawed, for the reasons listed above. (If people ever thought about it for one minute, wouldn't they realize that the right not to be tortured by the police is logically distinct from the right to refuse to answer a question about whether you committed a crime?) If large numbers of people believe the Fifth Amendment is sacred without ever thinking about whether it makes sense, that's a broader problem. What other cherished beliefs that we hold, that we don't think carefully about?

savuporo writes "The National Highway Traffic Safety Administration and the Department of Transportation are considering technological solutions for people to stop using their cellphones while driving. Proximity detectors or requiring physical link with the car are the solutions under the scope. From the article: 'NHTSA wants automakers to make it impossible to enter text for messaging and internet browsing while the car is in motion, disable any kind of video functionality and prevent text-based information such as social media content or text messages from being displayed.' Obviously these regulations would need to go beyond cellphones, as laptop, tablet or any other gadget with a 3G data connection or even on a wi-fi hotspot made by your phone would be equally distracting."

Rick Zeman writes "According to Wired, an order by the Foreign Intelligence Surveillance Court '...requires Verizon to give the NSA metadata on all calls within the U.S. and between the U.S. and foreign countries on an "ongoing, daily basis" for three months.' Unlike orders in years past, there's not even the pretense that one of the parties needed to be in a foreign country. It is unknown (but likely) that other carriers are under the same order."

An anonymous reader points out a report in Wired of an American woman at a "renowned academic institution" who received targeted malware from what was most likely a foreign government. "... analysis of [the downloader] showed that it was the same downloader that has been used in the past to install Remote Control System (RCS), a spy tool made by the Italian company Hacking Team and sold to governments." What's significant about this malware is that it is made by an Italian firm who claims they sell it only to government and law enforcement bodies, and it isn't of much use to your standard botnet operator. "The RCS tool, also known as DaVinci, records text and audio conversations from Skype, Yahoo Messenger, Google Talk and MSN Messenger, among other communication applications. It also steals Web browsing history and can turn on a computer’s microphone and webcam to record conversations in a room and take photos. The tool relies on an extensive infrastructure to operate and therefore is not easily copied and passed to non-government actors outside that infrastructure to use for their own personal spy purposes, according to a Hacking Team spokesman." There's no solid proof indicating who is responsible, but the malware email contained a link to a website in Turkey. "Turkey is a member of the North Atlantic Treaty Organization alliance. If authorities there were behind the hack attack, it would mean that a NATO ally had attempted to spy on a U.S. citizen on U.S. soil, presumably without the knowledge or approval of U.S. authorities, and for reasons that don't appear to be related to a criminal or counter-terrorism investigation."

New submitter DeathGrippe sends in an article from Wired about a new take on distributed computing efforts like SETI@Home. From Wired: "By inserting a bit of JavaScript into a webpage, Pethiyagoda says, a site owner could distribute a problem amongst all the site's visitors. Visitors' computers or phones would be running calculations in the background while they read a page. With enough visitors, he says, a site could farm out enough small calculations to solve some difficult problems. ... With this year's run on the value of Bitcoins — the popular digital currency — security expert Mikko Hyppönen thinks that criminals might soon start experimenting with this type of distributed computing too. He believes that crooks could infect websites with JavaScript code that would turn visitors into unsuspecting Bitcoin miners. As long as you're visiting the website, you're mining coins for someone else."

An anonymous reader writes "A new competitor to Google Glass was unveiled Thursday at the AllThingsD conference. Unlike Glass, it shows augmented reality content in 3D and is driven by hand gestures and voice input." Here's a video demo. If you think complaints that Google Glass is creepy have merit, take heart: these aren't for walking around with.

Necroloth sends this quote from an article at Wired: "For the first time, scientists have visually captured a molecule at single-atom resolution in the act of rearranging its bonds. Until now, scientists were only able to infer molecular structures. Using atomic force microscopy (abstract), the individual atomic bonds that connect the carbon molecule's 26 carbon and 14 hydrogen atoms are clearly visible and look startlingly similar to the stick diagrams in chemistry textbooks."

Ars Technica has taken a look at Microsoft's newly released preview of Windows 8.1. As widely rumored, the point release features a clamored-for concession to Windows users who rankled at the loss of Windows' Start button in the taskbar. In addition to various tweaks to 8's search capabilities and icon presentation, says the article, "Some of Windows 8's obvious limitations are being lifted. In 8.1, Metro apps can be run on multiple monitors simultaneously. On any single monitor, more than two applications can be run simultaneously. Instead of Windows 8's fixed split, where one application gets 320 pixels and the other application gets the rest, the division between apps will be variable. It'll also be possible to have multiple windows from a single app so that, for example, two browser windows can be opened side-by-side." Similar reports on these changes at Wired, Engadget, and SlashCloud.

pdclarry writes with a followup to this weekend's story that Liberty Reserve, a huge international payment processor, had been shut down and its founder had been arrested. "Liberty Reserve, apparently the Internet bank of choice for criminals, as reported by the NY Times, Wired and Business Week, has been accused of laundering over $6 billion dollars. Incorporated in Costa Rica in 2006, Liberty Reserve allegedly 'facilitated global criminal conduct' and was created and structured 'as a criminal business venture, one designed to help criminals conduct illegal transactions and launder the proceeds of their crimes,' Manhattan U.S. Attorney Preet Bharara said in an indictment (PDF) unsealed today. Chatter on criminal web sites show a rising sense of panic as fortunes have disappeared in an instant."

pdclarry writes with a followup to this weekend's story that Liberty Reserve, a huge international payment processor, had been shut down and its founder had been arrested. "Liberty Reserve, apparently the Internet bank of choice for criminals, as reported by the NY Times, Wired and Business Week, has been accused of laundering over $6 billion dollars. Incorporated in Costa Rica in 2006, Liberty Reserve allegedly 'facilitated global criminal conduct' and was created and structured 'as a criminal business venture, one designed to help criminals conduct illegal transactions and launder the proceeds of their crimes,' Manhattan U.S. Attorney Preet Bharara said in an indictment (PDF) unsealed today. Chatter on criminal web sites show a rising sense of panic as fortunes have disappeared in an instant."

Phopojijo writes "Consoles have not really been able to profitably scale over the last decade or so. Capital is sacrificed to gain control over their marketshare and, even with the excessive lifespan of this recent generation, cannot generate enough revenue with that control to be worth it. Have we surpassed the point where closed platforms can be profitable and will we need to settle on an industry body, such as W3C or Khronos, to fix a standard for companies to manage slices of and compete within?"

An anonymous reader writes "Unlike most Bond villains, 70-year-old James Turrell has turned a 389,000-year-old extinct volcano into something other than a secret hideout; he's turned it into a naked-eye observatory. From the article: 'Inside, the crater's naturally lit viewing rooms are precision-engineered to observe specific celestial events. While outside, Turrell has reformed the rim of the crater to create a beautiful "vaulting effect" of the sky in a way that we almost never see it. "I'm very interested in how we perceive, because that's how we construct the reality in which we live," Turrell says, "and I like to tweak that a little bit. I make structures that arrest and apprehend light for our perception."'"

Wired reports on a cluster of mini-satellites that will soon be launched into orbit that will assist U.S. special forces personnel during manhunts. "SOCOM is putting eight miniature communications satellites, each about the size of a water jug, on top of the Minotaur rocket that's getting ready to launch from Wallops Island, Virginia. They’ll sit more than 300 miles above the earth and provide a new way for the beacons to call back to their masters." When special forces are able to tag their target, the target can be tracked and located through the use of satellites and cell towers, but coverage is poor in many areas of the world. The satellites going up in September will help to fill in some gaps. "This array of configurable 'cubesats' is designed to stay aloft for three years or more. Yes, it will serve as further research project. But 'operators are going to use it,' Richardson promised an industry conference in Tampa last week."

Wired reports on a cluster of mini-satellites that will soon be launched into orbit that will assist U.S. special forces personnel during manhunts. "SOCOM is putting eight miniature communications satellites, each about the size of a water jug, on top of the Minotaur rocket that's getting ready to launch from Wallops Island, Virginia. They’ll sit more than 300 miles above the earth and provide a new way for the beacons to call back to their masters." When special forces are able to tag their target, the target can be tracked and located through the use of satellites and cell towers, but coverage is poor in many areas of the world. The satellites going up in September will help to fill in some gaps. "This array of configurable 'cubesats' is designed to stay aloft for three years or more. Yes, it will serve as further research project. But 'operators are going to use it,' Richardson promised an industry conference in Tampa last week."

Today at a press conference leading up to E3, Microsoft unveiled its next-gen games/entertainment console, the Xbox One. Their stated goal for the Xbox One is to have a single device provide "all of your entertainment." One of the big changes is increased support for voice and and gesture input. You can turn the console on by voice, and it will recognize you and automatically login. Swiping to the side with your hand will browse through menu pages, and saying "Watch TV" will bring up the TV app very quickly. The same with music, internet, and movies. The new console also supports multitasking — for example, while watching a movie, you can bring up your web browser in a side panel and surf the web at the same time. There is also a built-in TV listings app that responds to channel names — saying "Watch CBS" will switch to CBS without giving it an actual channel number. By this point, you're probably asking: does it play games? Yes. Hardware specs: 8-core CPU/GPU, 8GB RAM, a Blu-ray drive, a 500GB HDD, USB 3.0, and Wi-fi Direct. (They didn't provide the CPU frequency, instead saying it had 5 billion transistors.) The Kinect sensor got an upgrade: 2Gbps of data capture has finer skeletal visibility, can detect minor orientation changes in hands and fingers, and can even calculate your balance and weight distribution. The new controller looks slightly bigger, and is designed to play well with Kinect. They've also updated Smartglass, the remote control software that runs on mobile devices, but they didn't explain much about it. The new Xbox Live will have 300,000 servers powering it, up from 15,000 this year — though, of course, no details were provided about server specs. The console will have native game capture and editing tools — essentially, a game DVR. Saved games will be stored in the cloud, and they have new matchmaking capabilities that operate in the background. Update: 05/21 17:50 GMT by S : Halo is getting its own live-action TV show, for some reason. They'll be collaborating with Steven Spielberg. Microsoft is also partnering with the NFL for live broadcasts and interactive experiences, such as split-screen Skype chats and fantasy league updates. Xbox One will be out "later this year." No price information. it will not be backward-compatible with Xbox 360 games.

theodp writes "The last thing Wired's Mat Honan remembered before awaking on the self-driving boat that dropped him on the island was sitting through a four-hour Google I/O keynote in Moscone Center and hearing Google CEO Larry Page promote a vision of a utopia where society could be free to innovate and experiment, unencumbered by government regulations or social norms. 'Welcome to Google Island,' a naked-save-for-a-pair-of-eyeglasses Larry Page tells Honan. 'As soon as you hit Google's territorial waters, you came under our jurisdiction, our terms of service. Our laws — or lack thereof — apply here. By boarding our self-driving boat you granted us the right to all feedback you provide during your journey. This includes the chemical composition of your sweat. Remember when I said at I/O that maybe we should set aside some small part of the world where people could experiment freely and examine the effects? I wasn't speaking theoretically. This place exists. We built it.'"

An anonymous reader sends this excerpt from Wired: "[Henry] Markram was proposing a project that has bedeviled AI researchers for decades, that most had presumed was impossible. He wanted to build a working mind from the ground up. ... The self-assured scientist claims that the only thing preventing scientists from understanding the human brain in its entirety — from the molecular level all the way to the mystery of consciousness — is a lack of ambition. If only neuroscience would follow his lead, he insists, his Human Brain Project could simulate the functions of all 86 billion neurons in the human brain, and the 100 trillion connections that link them. And once that's done, once you've built a plug-and-play brain, anything is possible. You could take it apart to figure out the causes of brain diseases. You could rig it to robotics and develop a whole new range of intelligent technologies. You could strap on a pair of virtual reality glasses and experience a brain other than your own."

theodp writes "Last summer, unspecified voice problems caused Google CEO Larry Page to miss Google's Annual Shareholder Meeting, the I/O conference, and a quarterly earnings call. Now, Page has come forward and revealed that he suffers from partial paralysis of each of his vocal chords, an 'extremely rare' condition. Not unlike what Sergey Brin and his wife are doing with Parkinson's research, Page and his wife will be funding and overseeing 'a significant research program' led by Dr. Steven Zeitels of Harvard Medical School."