the regulatory environment has had that mine shut down until very recently
True, but the problematic regulatory environment is in China, not the US. We might be price competitive if we were willing to live in a toxic waste dump like much of China (plenty of Chinese are unhappy about that) but not otherwise. I'd be good with adding tariffs to imports of both raw materials and goods made with those materials to compensate. "Free trade" is an economist's simplistic fantasy and a politicians code phrase for "you're screwed".
because to the bean counters, administration is a revenue generator, as they are the ones bringing in the insurance and medicare money
Not always, but the bean counters are part of administration. Do you expect them to recommend cuts? Funny how bean counters never worry about too many bean counters being an unnecessary cost. Or is that the executives not worrying about executives being an excessive cost center? Probably both. Then there are the schmucks who waste their time taking care of patients. What a bunch of loosers.
You're right about the night shifts, weekends and holidays being a real pain for nurses (and others) who work in a hospital, but many nurses (e.g. my wife) prefer the 12 hour shifts. It's a killer work day, but having 4 days/week off is nice. That's even more true if you have kids. At least sometimes you can see them, go to school events, etc.
Obviously this has to end somewhere, but as you've written a post that's almost as long and erudite as mine:) I think it deserves an acknowledgement. Also thank you for violating Slashdot tradition by sticking to argument instead of screaming bombastic profanity laced ad hominems (actually there's a lot of civilized debate on this thread - maybe I came to the wrong website).
In general you're citing the case law that justifies this. I don't dispute what the case law is. Rather I dispute the reasoning behind it. It seems like a meaningless legal veneer to justify another chink in the Bill of Rights.
As for my example being melodramatic, maybe and maybe not. I understand the need to keep somebody incarcerated until they comply, but that doesn't mean there aren't plenty of games that the government can play. CP offenders, or just defendants, are notoriously unsafe in jail or prison. You think the cops are always above taking advantage of that? In prison people like that are supposed to be segregated. What about in jail, where a contempt violator would land. Jails of any size have different sections. The DWI's and deadbeat dads go to the one where you're not supposed to walk out the door because you're incarcerated. People accused of violent crimes and whatnot go into a very different section. Where does the CP defendant who is in contempt wind up? It's entirely at the discretion of the sheriff's personnel.
We should be tempering labor laws and industry regulation to ensure high quality staff, not pretending that the market is a cure-all.
Agreed.
I'd say its closer to a guild and that's part of why it works so well.
It's not working well when you suffer from an artificial shortage that the guild creates (in cahoots with the government, to which they give "recommendations"). People say the AMA is no longer the power house it was back when most doctors belonged to it and they paid Ronald Reagan to preach against the evils of anything that might lower their incomes (oops, I mean against the Evils of Socialized Medicine). To some extent that's true, but the retain enormous power in terms of "recommendations" about the number of med students, residency slots, and pay "recommendations" (one of the reasons for the ridiculous ratio between specialist and primary care physician incomes, and hence the shortage of primaries).
I haven't read Gawande's book (looks interesting though) but the basic idea of checklists for safety goes at least as far back as the crash of the army test flight of the Boeing 299 (later dubbed the B-17) in the 1930's. They work, and they can and should be applied to medicine. From the blurb I looked at, it seems that in medicine he's mostly talking about surgery (he is a surgeon). That's far from the only place that nosocomial (hospital acquired) infections get transmitted.
I don't know about the UK (you referenced a UK link) or even the OR, but can tell you that a major problem in many parts of the US is the incredible time pressure on nurses for everything from med passes to dressing changes. Over the years hospitals have increased patient/staff ratios, and it shows. In some places there has been push-back resulting in legal limits on the ratio (California is one, IIRC). Here in NY and most places, no. Hospitals squeeze costs by increasing the ratio, although interestingly they had lower ratios 10 or 20 years ago when healthcare was much cheaper. The time pressure means no time for checklists or other intelligent measures. An example of those is electronic scanning and data entry of meds before giving them to a patient (med errors are a major source of problems) but administrators push back on the equipment costs and the extra 5 seconds per patient. If they cut the admin staff in half they would have loads of money for those things.
This is not about leadership incompetence, it is about the apathy of the workforce.
You have no idea what you're talking about. Sure there are some apathetic and lazy people, just like in any field, and they should have their heads handed to them. A far bigger factor is the incredible time squeeze of increasing patient/staff ratios. My wife is a nurse and she sometimes comes home hungry because she literally hasn't had time to eat lunch. To a programmer that means they grabbed a sandwich or some junk food while at their desk or in a meeting, to her it means literally not finding 10-15 minutes (you shouldn't eat a sandwich while attending to a patient). I'm not going to exaggerate and say that's every day, but it's not that unusual either. When doing med rounds she often doesn't even have time for a hello and a once over of the patient, which is one of the important things nurses do. In nursing there is nothing unusual about her situation.
Is it any wonder that in such a constantly time pressed environment some things get skipped? Usually it isn't intentionally skipping it, it's "gotta rush to the next patient" and forgetting about it.
There's an attitude that leads to malpractice. My wife is a nurse, so I'm sympathetic about the pain of working holidays. However, the GP is right. On holidays you don't have elective surgery or regular appointments, but there's still the ER and patients in wards. There's no excuse for substandard care - ever. I'm sure my wife would agree as sloppy medical care infuriates her.
Not that such issues keep hospitals from constantly increasing the patient/nurse ratios. Why pay nurses to do silly things like care for patients when you can pay administrators 2x as much to work M-F and tell the nurses that there isn't enough money.
The hard drives are evidence of nothing. There is absolutely nothing illegal - implied or explicitly so - about hard drives.
I don't think there's any debate about that. I suspect most people here understand that "hard drives" is shorthand for "hard drives and the data on them", just as they understand than a note is can be incriminating because of what's written on it, and not because paper and ink have been outlawed.
That data is being locked by a passcode in the same way a safe can be locked with a passcode.
Can we please stop using the safe example unless someone can cite a case where the "foregone conclusion" idea was applied to that? If the government has a safe they can just cut it open. The original "foregone conclusion" case was in 1976 - it's hardly an ancient legal doctrine, and that makes me suspicious. Somehow before that we managed to arrest, try and convict thousands (millions?) of criminals, including such illustrious figures as Al Capone, without the invention of this exception.
The reasoning in the original case doesn't make much sense either. It was about tax records that the government had good reason to believe existed, but they couldn't find them. They already knew the files existed, so forcing the accused to provide them was supposedly handing over evidence instead of providing information. Hello? If the government knew where the files were, then they could have executed a search warrant to get them. Forcing the accused to hand them over was forcing him to provide the information about where they were. Saying "you don't have to tell us where they are, just give them to us" is a distinction without a difference. An absurd legal veneer that skirts the substance of the issue.
Even if you do accept the suspicious "foregone conclusion" doctrine, the safe analogy doesn't work. Opening the safe is providing physical access to something. Decrypting the hard drives is giving them information about evidence that they already possess. Again the "don't tell us the password, just give us the decrypted data" is a meaningless distinction. What other use would the government have for the password than to decrypt the drives? Having the accused give them the decrypted data achieves the same ends, and just provides some, ahem, tenuous legal cover to chipping away at the Bill of Rights.
If the accused had written some notes in a code known only to him, could the government force him to decode those notes? That would be obviously be forcing the defendant to providing self-incriminating information. It's also as close of an analogy as you can get to decrypting the hard drives, and far better than the safe analogy. The government has the evidence (yes, obviously not the hard drives themselves but the data on them), they just don't know how to read the code the accused used. It's the government's problem if they can't figure out the evidence they have.
To rise to the level of self-incrimination, the admission must be something the government doesn't already know.
Yes, and the government doesn't already know the password. If they already knew it, they wouldn't bother trying to coerce it out of the accused.
There are very strong historical reasons for the right not to incriminate yourself. At one time governments would torture people until they got a confession. Of course they wouldn't do that these days. Instead they put you in jail, indefinitely, for supposed contempt and maybe the word leaks out that the new inmate is into CP. But it's ok since it isn't actually the government doing the torturing, so we have a convenient and meaningless excuse to hide behind.
Once he's charged the right to a speedy trial kicks in.
What a joke. You didn't think they were serious about that one these days, did you? It's often years between being charged and being tried. Please name the last time a case was dismissed or someone freed because the Constitution is supposed to guarantee the right to a speedy trial.
Why would a prosecutor rush to file charges on someone before the entire scope of the crime has been determined?
Because all the prosecutor needs is evidence of one crime to start with. Then he can be kept in jail or a high bail can be pushed for (easy in a CP case), which makes him much less of a flight risk. If the scope of the crime(s) is greater than originally thought, additional charges can be added. It's done all the time. So if they haven't charged him yet, it means they don't have sufficient evidence to charge him with anything.
We have two choices in society. Outright ban encryption and anyone caught with encrypted files is automatically guilty...or the keys are not considered self encrimination
Encryption is useful and important for many reasons, it is also a game changer that would make law enforcement fairly useless and cause major problems in society if law enforcement can't obtain warrants to obtain the key.
The Bill of Rights can be a real PITA, but we shouldn't make exceptions just because somebody thinks it's expedient. If there is a problem with the Constitution, then there is a well defined process to amend it.
Because the prosecutor hasn't filed charges yet. They're still working on the case.
You make it sound like "gosh, we just haven't gotten around to it yet". If they had any real evidence they could, and should, charge him in a heartbeat. Then they can keep him in jail or push for a very high bail (easy in a CP case), which makes him much less of a flight risk than just being a suspect. If they're "still working on the case" after that they can always add more charges later.
And that the images of [CP] on them are his. You forgot that tiny detail.
They don't know what's on the drives that are still encrypted. You forgot that tiny detail. If there was real CP on what they did decrypt then there is no excuse for not charging him ASAP.
It is a distinction that shows he's not being forced to provide information that the government doesn't already possess.
Of course he's being asked to provide information they don't already possess. Why else would they be trying to get it? What the "foregone conclusion" exception to the 5th means is that you have to hand over evidence, not information, if they can show it's a foregone conclusion that the evidence exists.
They have the disks and proof of his crime
Great. Why don't they use it?
he's not even expected to tell them the password.
That's a distinction that only a lawyer could think mattered.
You're very good at telling a prosecutor how to do his job.
As are you. What's your point? Everybody here is playing armchair prosecutor, judge, cop, fiddler, whatever.
They'll be in a much better position to offer a deal when the full extent of the crime is known.
That's true. Unfortunately the Bill of Rights sometimes makes the work of police and prosecutors more difficult. That's the price we pay for a society where the government can't arrest and imprison anybody they want. The people who wrote and ratified the Bill of Rights were no fools. Each and every right in there was to prevent government abuses that had a long history.
The Fifth Amendment means the government can't force you to reveal information that would incriminate you. It does not mean you can restrict access to evidence of your criminal acts when the government knows where and what that evidence is.
The hard drives are the evidence and they already have them. What they're asking for is information from the accused so that they can better understand them, and providing that information is self-incrimination. It's like them having a note as evidence which says "Meet Mr. Big at midnight, before the Big Affair". That's evidence, but they can't force you to testify about what it means.
If it played out as described above, the ruling seems pretty reasonable to me.
You're suggesting that they throw the 5th in the trash because he already seems pretty guilty. I think the Constitutional rights should serve to protect the innocent, not the guilty. Problem: how do we know who is guilty? "Seems pretty guilty" to police and a judge isn't good enough. That may serve for search warrants, arrest, etc. but the trial by jury is supposed to be the acid test. Ergo the only way to protect the rights of the innocent is to protect everybody's rights.
Slashdot Mirror
Maybe we should thank the bankers for trashing our economy.
If only a rare earth mine were the biggest thing we let them kill off. Remember when some things were manufactured in the US? It wasn't that long ago.
the regulatory environment has had that mine shut down until very recently
True, but the problematic regulatory environment is in China, not the US. We might be price competitive if we were willing to live in a toxic waste dump like much of China (plenty of Chinese are unhappy about that) but not otherwise. I'd be good with adding tariffs to imports of both raw materials and goods made with those materials to compensate. "Free trade" is an economist's simplistic fantasy and a politicians code phrase for "you're screwed".
You lose. Don't you know that on Slashdot being a bombastic ass trumps actually knowing what you're talking about?
because to the bean counters, administration is a revenue generator, as they are the ones bringing in the insurance and medicare money
Not always, but the bean counters are part of administration. Do you expect them to recommend cuts? Funny how bean counters never worry about too many bean counters being an unnecessary cost. Or is that the executives not worrying about executives being an excessive cost center? Probably both. Then there are the schmucks who waste their time taking care of patients. What a bunch of loosers.
I just can't figure out why.
You've never heard of being pissed off?
Come on, people, what kind of nerds are you? Asimov. The surgeon sterilizes his hands by heating them until they're cherry red.
You're right about the night shifts, weekends and holidays being a real pain for nurses (and others) who work in a hospital, but many nurses (e.g. my wife) prefer the 12 hour shifts. It's a killer work day, but having 4 days/week off is nice. That's even more true if you have kids. At least sometimes you can see them, go to school events, etc.
Obviously this has to end somewhere, but as you've written a post that's almost as long and erudite as mine :) I think it deserves an acknowledgement. Also thank you for violating Slashdot tradition by sticking to argument instead of screaming bombastic profanity laced ad hominems (actually there's a lot of civilized debate on this thread - maybe I came to the wrong website).
In general you're citing the case law that justifies this. I don't dispute what the case law is. Rather I dispute the reasoning behind it. It seems like a meaningless legal veneer to justify another chink in the Bill of Rights.
As for my example being melodramatic, maybe and maybe not. I understand the need to keep somebody incarcerated until they comply, but that doesn't mean there aren't plenty of games that the government can play. CP offenders, or just defendants, are notoriously unsafe in jail or prison. You think the cops are always above taking advantage of that? In prison people like that are supposed to be segregated. What about in jail, where a contempt violator would land. Jails of any size have different sections. The DWI's and deadbeat dads go to the one where you're not supposed to walk out the door because you're incarcerated. People accused of violent crimes and whatnot go into a very different section. Where does the CP defendant who is in contempt wind up? It's entirely at the discretion of the sheriff's personnel.
I always found it rather strange that bacterial infections could spread so easily in a "sanitary" environment like a hospital.
Being full of sick people, hospitals are not all that sanitary (not really a joke).
Bored?! Indian's won't get bored. India's avg IQ is 79.
If it's true, it shows that the real idiots are people who think that IQ scores mean much.
We should be tempering labor laws and industry regulation to ensure high quality staff, not pretending that the market is a cure-all.
Agreed.
I'd say its closer to a guild and that's part of why it works so well.
It's not working well when you suffer from an artificial shortage that the guild creates (in cahoots with the government, to which they give "recommendations"). People say the AMA is no longer the power house it was back when most doctors belonged to it and they paid Ronald Reagan to preach against the evils of anything that might lower their incomes (oops, I mean against the Evils of Socialized Medicine). To some extent that's true, but the retain enormous power in terms of "recommendations" about the number of med students, residency slots, and pay "recommendations" (one of the reasons for the ridiculous ratio between specialist and primary care physician incomes, and hence the shortage of primaries).
take a copy of "The Checklist Manifesto" with you
I haven't read Gawande's book (looks interesting though) but the basic idea of checklists for safety goes at least as far back as the crash of the army test flight of the Boeing 299 (later dubbed the B-17) in the 1930's. They work, and they can and should be applied to medicine. From the blurb I looked at, it seems that in medicine he's mostly talking about surgery (he is a surgeon). That's far from the only place that nosocomial (hospital acquired) infections get transmitted.
I don't know about the UK (you referenced a UK link) or even the OR, but can tell you that a major problem in many parts of the US is the incredible time pressure on nurses for everything from med passes to dressing changes. Over the years hospitals have increased patient/staff ratios, and it shows. In some places there has been push-back resulting in legal limits on the ratio (California is one, IIRC). Here in NY and most places, no. Hospitals squeeze costs by increasing the ratio, although interestingly they had lower ratios 10 or 20 years ago when healthcare was much cheaper. The time pressure means no time for checklists or other intelligent measures. An example of those is electronic scanning and data entry of meds before giving them to a patient (med errors are a major source of problems) but administrators push back on the equipment costs and the extra 5 seconds per patient. If they cut the admin staff in half they would have loads of money for those things.
This is not about leadership incompetence, it is about the apathy of the workforce.
You have no idea what you're talking about. Sure there are some apathetic and lazy people, just like in any field, and they should have their heads handed to them. A far bigger factor is the incredible time squeeze of increasing patient/staff ratios. My wife is a nurse and she sometimes comes home hungry because she literally hasn't had time to eat lunch. To a programmer that means they grabbed a sandwich or some junk food while at their desk or in a meeting, to her it means literally not finding 10-15 minutes (you shouldn't eat a sandwich while attending to a patient). I'm not going to exaggerate and say that's every day, but it's not that unusual either. When doing med rounds she often doesn't even have time for a hello and a once over of the patient, which is one of the important things nurses do. In nursing there is nothing unusual about her situation.
Is it any wonder that in such a constantly time pressed environment some things get skipped? Usually it isn't intentionally skipping it, it's "gotta rush to the next patient" and forgetting about it.
That's life. Deal with it.
There's an attitude that leads to malpractice. My wife is a nurse, so I'm sympathetic about the pain of working holidays. However, the GP is right. On holidays you don't have elective surgery or regular appointments, but there's still the ER and patients in wards. There's no excuse for substandard care - ever. I'm sure my wife would agree as sloppy medical care infuriates her.
Not that such issues keep hospitals from constantly increasing the patient/nurse ratios. Why pay nurses to do silly things like care for patients when you can pay administrators 2x as much to work M-F and tell the nurses that there isn't enough money.
How about a sensor that detects if they actually have germs on their hands. If so sterilizing boiling water comes out killing the germs.
Boiling water isn't hot enough to sterilize (autoclaves run hotter). Maybe a plasma - it would look cool too.
In this case there is conflict as to the boundaries of the 5th amendment.
Your first two examples make sense, but this doesn't. What other right does the 5th conflict with here?
It's quite possible that in the Judge's mind the revelation of the contents on one drive makes self-incrimination moot.
If it was moot they wouldn't care about decrypting the other hard drives.
The hard drives are evidence of nothing. There is absolutely nothing illegal - implied or explicitly so - about hard drives.
I don't think there's any debate about that. I suspect most people here understand that "hard drives" is shorthand for "hard drives and the data on them", just as they understand than a note is can be incriminating because of what's written on it, and not because paper and ink have been outlawed.
That data is being locked by a passcode in the same way a safe can be locked with a passcode.
Can we please stop using the safe example unless someone can cite a case where the "foregone conclusion" idea was applied to that? If the government has a safe they can just cut it open. The original "foregone conclusion" case was in 1976 - it's hardly an ancient legal doctrine, and that makes me suspicious. Somehow before that we managed to arrest, try and convict thousands (millions?) of criminals, including such illustrious figures as Al Capone, without the invention of this exception.
The reasoning in the original case doesn't make much sense either. It was about tax records that the government had good reason to believe existed, but they couldn't find them. They already knew the files existed, so forcing the accused to provide them was supposedly handing over evidence instead of providing information. Hello? If the government knew where the files were, then they could have executed a search warrant to get them. Forcing the accused to hand them over was forcing him to provide the information about where they were. Saying "you don't have to tell us where they are, just give them to us" is a distinction without a difference. An absurd legal veneer that skirts the substance of the issue.
Even if you do accept the suspicious "foregone conclusion" doctrine, the safe analogy doesn't work. Opening the safe is providing physical access to something. Decrypting the hard drives is giving them information about evidence that they already possess. Again the "don't tell us the password, just give us the decrypted data" is a meaningless distinction. What other use would the government have for the password than to decrypt the drives? Having the accused give them the decrypted data achieves the same ends, and just provides some, ahem, tenuous legal cover to chipping away at the Bill of Rights.
If the accused had written some notes in a code known only to him, could the government force him to decode those notes? That would be obviously be forcing the defendant to providing self-incriminating information. It's also as close of an analogy as you can get to decrypting the hard drives, and far better than the safe analogy. The government has the evidence (yes, obviously not the hard drives themselves but the data on them), they just don't know how to read the code the accused used. It's the government's problem if they can't figure out the evidence they have.
To rise to the level of self-incrimination, the admission must be something the government doesn't already know.
Yes, and the government doesn't already know the password. If they already knew it, they wouldn't bother trying to coerce it out of the accused.
There are very strong historical reasons for the right not to incriminate yourself. At one time governments would torture people until they got a confession. Of course they wouldn't do that these days. Instead they put you in jail, indefinitely, for supposed contempt and maybe the word leaks out that the new inmate is into CP. But it's ok since it isn't actually the government doing the torturing, so we have a convenient and meaningless excuse to hide behind.
Once he's charged the right to a speedy trial kicks in.
What a joke. You didn't think they were serious about that one these days, did you? It's often years between being charged and being tried. Please name the last time a case was dismissed or someone freed because the Constitution is supposed to guarantee the right to a speedy trial.
Why would a prosecutor rush to file charges on someone before the entire scope of the crime has been determined?
Because all the prosecutor needs is evidence of one crime to start with. Then he can be kept in jail or a high bail can be pushed for (easy in a CP case), which makes him much less of a flight risk. If the scope of the crime(s) is greater than originally thought, additional charges can be added. It's done all the time. So if they haven't charged him yet, it means they don't have sufficient evidence to charge him with anything.
We have two choices in society. Outright ban encryption and anyone caught with encrypted files is automatically guilty...or the keys are not considered self encrimination Encryption is useful and important for many reasons, it is also a game changer that would make law enforcement fairly useless and cause major problems in society if law enforcement can't obtain warrants to obtain the key.
The Bill of Rights can be a real PITA, but we shouldn't make exceptions just because somebody thinks it's expedient. If there is a problem with the Constitution, then there is a well defined process to amend it.
You know that was a joke? Besides, I'm still using XP when I have to use Windows.
Because the prosecutor hasn't filed charges yet. They're still working on the case.
You make it sound like "gosh, we just haven't gotten around to it yet". If they had any real evidence they could, and should, charge him in a heartbeat. Then they can keep him in jail or push for a very high bail (easy in a CP case), which makes him much less of a flight risk than just being a suspect. If they're "still working on the case" after that they can always add more charges later.
And that the images of [CP] on them are his. You forgot that tiny detail.
They don't know what's on the drives that are still encrypted. You forgot that tiny detail. If there was real CP on what they did decrypt then there is no excuse for not charging him ASAP.
It is a distinction that shows he's not being forced to provide information that the government doesn't already possess.
Of course he's being asked to provide information they don't already possess. Why else would they be trying to get it? What the "foregone conclusion" exception to the 5th means is that you have to hand over evidence, not information, if they can show it's a foregone conclusion that the evidence exists.
They have the disks and proof of his crime
Great. Why don't they use it?
he's not even expected to tell them the password.
That's a distinction that only a lawyer could think mattered.
You're very good at telling a prosecutor how to do his job.
As are you. What's your point? Everybody here is playing armchair prosecutor, judge, cop, fiddler, whatever.
They'll be in a much better position to offer a deal when the full extent of the crime is known.
That's true. Unfortunately the Bill of Rights sometimes makes the work of police and prosecutors more difficult. That's the price we pay for a society where the government can't arrest and imprison anybody they want. The people who wrote and ratified the Bill of Rights were no fools. Each and every right in there was to prevent government abuses that had a long history.
The Fifth Amendment means the government can't force you to reveal information that would incriminate you. It does not mean you can restrict access to evidence of your criminal acts when the government knows where and what that evidence is.
The hard drives are the evidence and they already have them. What they're asking for is information from the accused so that they can better understand them, and providing that information is self-incrimination. It's like them having a note as evidence which says "Meet Mr. Big at midnight, before the Big Affair". That's evidence, but they can't force you to testify about what it means.
If it played out as described above, the ruling seems pretty reasonable to me.
You're suggesting that they throw the 5th in the trash because he already seems pretty guilty. I think the Constitutional rights should serve to protect the innocent, not the guilty. Problem: how do we know who is guilty? "Seems pretty guilty" to police and a judge isn't good enough. That may serve for search warrants, arrest, etc. but the trial by jury is supposed to be the acid test. Ergo the only way to protect the rights of the innocent is to protect everybody's rights.