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MisterSwig
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You're just searching them because they're foreigners and might possibly have done something. It seems like you're the one initiating physical force on them.

I'm uncertain that what I'm suggesting qualifies as a "search," let alone an unreasonable one. The gathering and processing of some amount of information I think is generally necessary for law to be enforced, as such. A police officer enters a license plate number into a computer system, for instance, to determine whether a particular car has been reported stolen and must be stopped -- is this a "search" or a "seizure" of anything?

The gathering and processing of information at a border is further a special case because, again, we're dealing with the reality of someone moving from one jurisdiction to another. That's a fact which has implication, again, if our goal is to enforce law generally.

If we imagine a criminal crossing the border -- a car thief, perhaps, driving a stolen car -- well, the border agent ideally would detain and incarcerate that criminal (or return him to the relevant authorities). But without any information about the person in question (let us say the license plate number on the car the prospective immigrant is driving), it is impossible to even get to the stage at which we could say whether there's cause to do anything at all. And so, to continue the example, it would be necessary for the border agent to get the requisite license plate data from the emigrant's country of origin, to see whether that car has been reported stolen, to determine whether any stop must be made. But even that minimal bit of processing takes time, may require a queue, a stop, and etc.

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People cross and transfer multiple jurisdictions all the time, every day. And yet this is normally not grounds for a search or inspection. If there actually are grounds, then a warrant can be executed by the legal system. But no pre-crime searches are normally allowed if I'm traveling from, say, California to Nevada, or Bronx to Brooklyn. It seems like normally there is no special problem of "transfer of jurisdiction." I'm just in one jurisdiction one second, then in another the next. 

If you've ever actually traveled from California to Nevada -- and back again -- you might know that there are indeed border controls at the state border, which are irregularly staffed on the California side, complete with a stop and questions upon entry, the better to enforce California state law.

Individual rights are not threatened by the enforcement of law, as such; in fact, they rely upon it. A stop, in order to gain/process information upon a change in jurisdiction (which is non-existent, as far as I'm aware, going from the Bronx to Brooklyn; minimal going from California to Nevada; total going from Mexico to the United States) seems to me to not be unreasonable in any sense.

Edited by DonAthos
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On 9/12/2019 at 5:54 AM, MisterSwig said:

If all property, including roads, were privatized, then you wouldn't have this so-called "right" to travel across jurisdictional boundaries at will. The property owners could all band together and exile you to your own property, if you had any--or to some country that would have you. So you're arguing for a "right" that you wouldn't even have in an Objectivist nation.

The government still wouldn't have the right to impose such restrictions itself.

Government is a much greater threat to freedom of movement that a hypothetical banding together of all property owners.

What about the right of free access to and from one's own property?

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1 hour ago, Doug Morris said:

What about the right of free access to and from one's own property?

Your right cannot impede on the rights of others. So you'd have to get permission to use other people's properties to access your own. By the way, this is partly why public groups, like the citizens of a town, agree to create public roads in the first place: to ensure that property owners and the general public have "free" access to various residences and businesses in the town limits. It's not really free, though. The public pays to create and maintain the public access roads. By "free," I mean that the user generally doesn't pay a road toll. Sometimes the public does charge a toll to recover costs, such as with some expensive projects like bridges, tunnels and highways.

Edited by MisterSwig
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2 hours ago, DonAthos said:

I'm uncertain that what I'm suggesting qualifies as a "search," let alone an unreasonable one. The gathering and processing of some amount of information I think is generally necessary for law to be enforced, as such. A police officer enters a license plate number into a computer system, for instance, to determine whether a particular car has been reported stolen and must be stopped -- is this a "search" or a "seizure" of anything?

There are obvious differences between a police officer entering a passing car's license plate number into his computer (which is really just observing passersby), and when the government physically intrudes on persons, houses, papers, or effects for the purpose of obtaining information. The latter is what the US Supreme Court defines as a search and the 4th Amendment requirements apply in any attempt to gather information. It obviously doesn't prevent investigators from gathering information. It also doesn't really matter if you call that a search or something else, call it X-ing. If you're doing that, you're not merely observing them as they drive or pass by. 

And it also doesn't really matter if want to start calling things "a special case," or just subjectively want to say you consider it reasonable and proper, or say hey it's just minimal. All of these arguments are question begging.

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2 hours ago, 2046 said:

And it also doesn't really matter if want to start calling things "a special case," or just subjectively want to say you consider it reasonable and proper, or say hey it's just minimal. All of these arguments are question begging.

Gathering information is necessary to enforce the law. You can't protect individual rights without the enforcement of law. So your arguments do not serve to protect individual rights. Allowing criminals to flee from Mexican authorities to the US, without so much as a stop at the border, will not better protect anyone's rights (though I imagine that it would create an incentive for Mexican car thieves to come north).

If you want to call it a "search" to check identification at the border, and compare against the information Mexican authorities have, and etc., that's fine. If the US Supreme Court sees it as such, that's fine, too, though I expect that they do not consider it "unreasonable." It is not unreasonable, and is reasonable (far beyond my "considering" it to be so) because it is again required for the purpose of enforcing the law. Whatever procedures are necessary to enforce those laws required to protect individual rights are both reasonable and proper. (Which is the morality that underlies all of our methods of information gathering, including warrants, which may also apply to people who have not themselves initiated the use of force; but a stop at the border to check identification and so forth does not require a judge's personal consent, and you've demonstrated no reasonable argument that it should.)

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For completeness' sake, I'm going to go ahead and review Binswanger's essay and respond to it here:

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This is a defense of a policy of absolutely open immigration, without border patrols, border police, border checks, or passports.

After a phase-in period, entry into the U.S. would be unrestricted, unregulated, and unscreened, exactly as is entry into Connecticut from New York.

(Note: I am defending freedom of entry and residency, not the granting of citizenship or voting rights, not even after decades of residency.)

Granted that "freedom of entry and residency" are absolutely different from citizenship/voting rights or other means of participation in governance.

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An end to immigration barriers is required by the principle of individual rights. [...]

Agreed, though to the point of contention I would say that a procedure by which immigration takes place does not amount to a barrier against it.

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A foreigner has rights just as much as an American. [...]

Absolutely, and also agreed to Binswanger's arguments re: seeking employment, buying homes, etc., and against immigration quotas.

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The implicit premise of barring foreigners is: "This is our country, we let in only those we want here." But who is this collective "we"?

Indeed. And it is depressing to note that I've witnessed many Objectivists on this very site make a version of this argument.

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The government does not own the country. It has jurisdiction over the territory, but jurisdiction is not ownership. [...]

Right. And speaking to the point of departure I'm anticipating, the fact of that jurisdiction requires a certain procedure at the border...

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So, in principle, there's no objection to barring criminals from entering the country.

Precisely.

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There is, however, a procedural objection, and a decisive one: how are government officials to determine whether or not a given man about to enter the country is a criminal? Since potential or actual criminals do not carry signs announcing this fact, how can the government ferret it out—without violating the rights of the innocent immigrant? [...]

Criminals do not carry signs announcing the fact, but the government can sometimes ferret it out by contacting those other governmental bodies that have the requisite information: for instance, the Mexican government may be aware that a certain car is stolen.

Whether such a stop/gathering of information is "violating the rights of the innocent immigrant" in those cases where no car is stolen is precisely the question at issue.

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A man, citizen or non-citizen, is to be presumed innocent. He does not have to satisfy the government that he is not a criminal, in the absence of any evidence that he is. [...]

Here's the rub. There may well be evidence that a given man is a criminal, or even actively on the run from law enforcement, but accounting to a transfer of jurisdiction, that evidence may not be immediately available (as it would otherwise be when a man goes from New York to Connecticut).

When Binswanger writes that a man does not have to satisfy "the government," it elides the fact that there are two distinct governments involved. A criminal ought not have a "home base" by crossing the border, where he is thereafter safe, and must commit fresh crimes before he can bear investigating. He remains responsible for the crimes he has already committed. But law enforcement in this new jurisdiction, if it is to hold him responsible for the crimes he has committed in the other, must be able to access that sort of information. And it cannot do so instantaneously with respect to everyone who might cross the border, nor would it even know to do so if it does not know who crosses the border at all.

Binswanger argues against an "indiscriminate subjection of everyone to a screening process," but a border screening process is not indiscriminate: it is alone for those who cross the border, and accounting to the fact that law enforcement agencies in different jurisdictions have different information. So when someone enters the new jurisdiction, there must be an opportunity to gain access to that information, so that criminals can be stopped and law-biding citizens can pass without further delay.

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Things are different in wartime, or when an epidemic breaks out in a certain region, of course...

Without Binswanger available to defend himself, I don't want to expand on this too much, but I do wonder why these are exceptions, "of course." War and an epidemic presumably constitute exceptions in his mind because they are dangerous, creating "emergency conditions" (which is often a kind of magic totem for some Objectivists); yet a criminal, too, can be dangerous and threaten life, liberty and property. Indeed, that's what it is to be criminal.

But let it pass...

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...but what about peacetime? What about now, when millions of Mexicans, South Americans, Chinese, Canadians, etc. are seeking entry into the U.S.? What about the overwhelming majority, who are not criminals, not terrorists, and not carriers of some plague? By what moral principle can they be inspected, harrassed, or excluded?

Once we have eliminated those aspects of immigration policy that seek to prevent access on the basis of collectivist notions like racism, economic protectionism, etc., I do not believe that rights-respecting people would experience the remaining inspection required at the border as harassment, but rather as the protection of their own rights.

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I'm very afraid that the actual reason for limiting immigration is xenophobia, which is simply a polite word for racial bigotry.

This is often true, and has been true for a long time, here and elsewhere, yet it might still be possible to want people to be able to immigrate freely... and bar criminals, terrorists and plague-carriers, for the very same fundamental reason: the protection of individual rights.

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15 hours ago, DonAthos said:

Allowing criminals to flee from Mexican authorities to the US, without so much as a stop at the border, will not better protect anyone's rights (though I imagine that it would create an incentive for Mexican car thieves to come north).

You're not allowing criminals to flee. If you know someone is a criminal, or have probable cause, you may stop them. If you have reasonable suspicion, you may stop them. But if you do not, you have to meet that threshold before treading upon their homes, persons, papers, and effects. 

If you think not being able to perform warrantless searches prevents investigators from doing anything, then you'd have to explain why it doesn't prevent investigators from doing anything they can't already do internally to any other crime they investigate involving citizens. In fact, if you think it does, you'd seem to be committed to believing that no crimes get solved. Which is just obviously false.

I suspect that you simply don't agree with this. The 4th amendment doesn't apply here. Castle doctrine doesn't apply here. The common law doesn't apply here. Why? Because they're foreigners crossing the border "changing jurisdictions."

So what's wrong with this? It's question begging. If your argument at any point is "because they're foreigners" you haven't demonstrated why an exception for them is justified, when presumably you wouldn't do so with normal US citizens. Why should there be a double standard? Because they're foreigners. This is circular.

The only way to argue this is to argue against castle doctrine for everybody, thus destroying private property rights altogether. Or just to embrace something like nationalism and argue that immigrants don't get the same rights as natives, or just being a foreigner is probable cause.

My guess is that Yaron and Harry don't want to do that. They just didn't want to restrict immigrants from coming in, but just assumed stopping and screening them was fine and didn't think more about that aspect (except Harry seems to have thought about some of these aspects, only to come to the same conclusion.) Certainly just stopping and searching people would be better than restricting them. But it doesn't appear to me that it is justified. You can let people come into the country and not subject them to warrantless searches, or you can hold a double standard. Or you can throw out the law.

Edited by 2046
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13 hours ago, DonAthos said:

Binswanger argues against an "indiscriminate subjection of everyone to a screening process," but a border screening process is not indiscriminate: it is alone for those who cross the border,

Yeah so you may want to challenge that it is a general warrant because, hey it's not just general to the whole planet, but just for immigrants. Why doesn't this work? In legal terms a general warrant is one that doesn't have probable cause or specify the items to be searched and the items to be searched for. Do you have any of these things when you stop and question an immigrant at the border? No, you do not.

Next you may say, just being a foreigner satisfies these criteria. Is being a foreigner a specific criminal act? No. Do you have witness testimony that they've possibly committed a crime? No. Do you have evidence that they've committed a crime? No. So this doesn't work. The only way forward is to embrace nationalism or throw the law out. Otherwise it just seems you're making an exception for immigrants.

Also note that saying something like "well, I would have evidence, if I could stop and search them!" is precisely the kind of thing the law was created for. So invoking this is just wanting to get rid of the law.

Edited by 2046
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14 hours ago, DonAthos said:

 

But let it pass...

Once we have eliminated those aspects of immigration policy that seek to prevent access on the basis of collectivist notions like racism, economic protectionism, etc., I do not believe that rights-respecting people would experience the remaining inspection required at the border as harassment, but rather as the protection of their own rights.

This is often true, and has been true for a long time, here and elsewhere, yet it might still be possible to want people to be able to immigrate freely... and bar criminals, terrorists and plague-carriers, for the very same fundamental reason: the protection of individual rights.

I've been confused by something. Is it the contention that a nation's individual rights, such as they imperfectly exist, extends to pre-immigrants? Obviously, they continue to have basic "human" rights but I'd think their individual rights can/should only be protected after they are citizens (/residents)

"...that preserves and protects individual morality in a social context". ...[AR]

If one has not (legally) entered this "social context" how and why can his individual rights be protected? One would arrive at the silly conclusion that anyone on the other side of a border who is applying for immigration from, say, a US Embassy in his country, has already come under America's individual rights and gains their protection before he's been approved. . 

"By what moral principle can they be inspected, harrassed, or excluded" (HB)

"[not] as harrassment, but rather as the *protection* of their own rights".(DA)

Indeed - the same principle by which an air traveller submits to the hassle and indignity of body and baggage searches: he realises it's for his own safety - and - that of all others. Only a person with something to conceal would try to evade being checked out.

If the threat hadn't existed or ever been acted out on aircraft, nor would body-searches. By that token, ceasing body searches ~in the hopes~ that there are no longer any dangerous individuals, would be subjectivist. I.E. having trust that every, single one entering a country or an airplane only has benign purposes. As much as I find them a drag, I wouldn't fly on an airline which did not have processes to protect its passengers. Therefore, by that "moral principle".

 

Edited by whYNOT
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8 minutes ago, whYNOT said:

America's individual rights

Each country has different individual rights?

10 minutes ago, whYNOT said:

this "social context"

Mexicans aren't in a social context?

12 minutes ago, whYNOT said:

Only a person with something to conceal would try to evade being checked out.

Or, you know, don't like to have their rights violated.

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14 minutes ago, Eiuol said:

Each country has different individual rights?

Mexicans aren't in a social context?

Or, you know, don't like to have their rights violated.

Been quite some question begging here.

Does Mexico employ individual rights? 

Are Mexicans in a Mexican "social context"? Or, in an American "social context".

Which country's government provides them with protection of their individual rights?

(Hey, maybe I have the protection of the US individual rights--right where I am! Great!) 

Edited by whYNOT
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27 minutes ago, whYNOT said:

Only a person with something to conceal would try to evade being checked out.

Yeah so, if you believe that, you don't believe in the Fourth Amendment (and the castle doctrine) at all.

You either make a double standard for foreigners, or you throw it out altogether. Since I support 4A, I need not consider either of these.

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National Rights

A nation, like any other group, is only a number of individuals and can have no rights other than the rights of its individual citizens. A free nation—a nation that recognizes, respects and protects the individual rights of its citizens—has a right to its territorial integrity, its social system and its form of government. The government of such a nation is not the ruler, but the servant or agent of its citizens and has no rights other than the rights delegated to it by the citizens for a specific, delimited task (the task of protecting them from physical force, derived from their right of self-defense) . . . .

Such a nation has a right to its sovereignty (derived from the rights of its citizens) and a right to demand that its sovereignty be respected by all other nations.

“Collectivized ‘Rights,’”

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1 hour ago, whYNOT said:

I've been confused by something. Is it the contention that a nation's individual rights, such as they imperfectly exist, extends to pre-immigrants?

Yes. Individual rights apply to every individual on the planet (and beyond). A nation does not have particular individual rights, as such, though some nations do a better job of respecting rights than others.

1 hour ago, whYNOT said:

Obviously, they continue to have basic "human" rights but I'd think their individual rights can/should only be protected after they are citizens (/residents)

There is a difference between pro-actively "protecting" rights (in the sense of the administration of justice) and refraining from violation. The US Government, for instance, has no particular mandate to go into other countries to solve their crimes and redress wrongs, but the US Government has no allowance to violate the rights of other countries' citizens just because they aren't US citizens.

2 hours ago, 2046 said:

Next you may say, just being a foreigner satisfies these criteria.

"Being a foreigner" is a strawman, and nothing I've said or intimated in any of my posts. If you're a US citizen, cross the border to Mexico or Canada and then return. See whether you're stopped, and your information processed, or whether you qualify for an exception because you aren't a foreigner.

2 hours ago, 2046 said:

Is being a foreigner a specific criminal act? No. Do you have witness testimony that they've possibly committed a crime? No. Do you have evidence that they've committed a crime? No.

This is because the legal agents with jurisdiction in the US do not have general access to the information possessed by the legal agents in the jurisdiction of (for instance) Mexico. So in fact there may be a specific criminal act, witness testimony and evidence that they have committed a crime, but the change in jurisdictions requires a process by which that sort of information can be transferred/accessed.

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1 hour ago, DonAthos said:

"Being a foreigner" is a strawman, and nothing I've said or intimated in any of my posts. If you're a US citizen, cross the border to Mexico or Canada and then return. See whether you're stopped, and your information processed, or whether you qualify for an exception because you aren't a foreigner.

Yeah that's true. Being a foreigner applies to immigration, so I'm talking about people who argue for immigration restrictions.

But assume I'm an American traveling from Haiti. I come back to America and the immigration officer stops me and says I can't come in. Is this just? The people who endorse nationalism might say no because the key feature is I'm not foreign. For you, the key feature is the border. The line in the map represents something different, an exception to how I should be treated. See next paragraph:

1 hour ago, DonAthos said:

This is because the legal agents with jurisdiction in the US do not have general access to the information possessed by the legal agents in the jurisdiction of (for instance) Mexico. So in fact there may be a specific criminal act, witness testimony and evidence that they have committed a crime, but the change in jurisdictions requires a process by which that sort of information can be transferred/accessed.

Supposed I live in Colorado. I am under the jurisdiction of Denver PD. I lose my job. I look for a job in Florida. I get hired. I need not submit myself to a search, interrogation, or screening with Tampa PD. I just rent a place and go. Tampa and Denver are different jurisdictions. Nor does the federal government even know I am moving, nor do I submit to a warrantless search from them. Is it just that they stop me? No it is not. I'm just in one jurisdiction, then the other. Information, if it need be transferred, can be requested. No warrantless screening happens. If you want to say the border is special, you need some reason that's not circular or a double standard.

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2 hours ago, whYNOT said:

Does Mexico employ individual rights? 

No country does. All people have individual rights by virtue of being in a social context. We don't say that people have particular rights as relative to the particular social context in which they live. Countries can either fail or succeed at protecting individual rights. Since it doesn't matter which country someone is from in order for them to have rights, we don't need to specify where those people come from.

 

3 hours ago, whYNOT said:

Hey, maybe I have the protection of the US individual rights--right where I am!

We are talking about immigrants, not people who live in foreign countries...

 

 

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4 hours ago, 2046 said:

Yeah so, if you believe that, you don't believe in the Fourth Amendment (and the castle doctrine) at all.

You either make a double standard for foreigners, or you throw it out altogether. Since I support 4A, I need not consider either of these.

But I have not recommended unreasonable searches and seizures, I have respect for the 4th. I made the simple comparison with air passengers, willingly and clearly, legally, going through body and baggage searches. Connect back with immigrants, who would need to undergo some not "unreasonable" amount of background checking. They too would or should understand the ~self-interested ~ importance of this. I have always said of immigrants, they don't want to find in their new country the worst elements and people they gladly left behind. But "harrassed", as HB suggests, they seldom, if ever need to be, I find that a bit strawmannish.

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3 hours ago, DonAthos said:

Yes. Individual rights apply to every individual on the planet (and beyond). A nation does not have particular individual rights, as such, though some nations do a better job of respecting rights than others.

There is a difference between pro-actively "protecting" rights (in the sense of the administration of justice) and refraining from violation. The US Government, for instance, has no particular mandate to go into other countries to solve their crimes and redress wrongs, but the US Government has no allowance to violate the rights of other countries' citizens just because they aren't US citizens.

 

All right, though I'm unconvinced. Far as I can tell from Rand and from what I see, only one's own government (limited, properly) can protect one's *individual* rights. These are rights to freedom of action upheld within a specific sovereign territory -- but aren't universal in practice -- and can't in reality be extended to others outside this specific social context. Yes, individual rights are "right and proper to man", so are a universal truth. Instead of that, there exist almost everywhere, "human rights" - which allow for some freedom of action, certainly - but the 'freedom' comes with strings attached - which constrain one's freedom. They are entitlements and demands (or claims, I like to call them) upon others to provide one - by coercion, ultimately - with what a human being 'needs', and are a contortion of (individual) rights. As I see this they are hardly "human", or humane for that matter.

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31 minutes ago, whYNOT said:

can't in reality be extended to others outside this specific social context.

Individual rights aren't contingent upon different social contexts. Rather, they are only applicable if you enter in some kind of social context. Rights don't need to be extended towards you, even though their defense and respect does. More specifically, individuals are protected or violated by an entity, not the rights per se. So when a person approaches a border, it is morally proper to treat them as individuals, and to respect their rights.

To go towards DA's post, I agree that law enforcement needs information to perform its duty. But I don't see a need for there to be some special consideration at the border, as 2046 says. If information is needed, random searches on some individuals isn't really helping anything even if it is easier compared to other methods. The DEA should be concerned with Mexican law enforcement and communicate with them in order to figure out who might be worth questioning. It's not like by crossing jurisdictions everyone starts from scratch. It's actually good reason to say that part of good government is good procedure. If there is good communication, there is no need to even approach violating rights, and information is available just in time. "I want to go over Mexican data first, so please wait here for 5 minutes" would make sense sometimes if there is a known suspect from a Mexican drug cartel with a network of trucks carrying fried chicken batter for Los Pollos Hermanos, if that's what you mean DA. But if you mean "please let me search you so I can then compare Mexican data to what I found, just in case", that's a suspicion coming out of nowhere, and would be an unreasonable search. Either law enforcement has enough data already to be looking for something specific, or they have no reason at all to be searching.

https://www.youtube.com/watch?v=NJYUs2UH0SM

By the way, for unreasonable searches, I am including using phones to scan someone's face and see if they match a database. Maybe more important here is a right to privacy. No, I don't mean a procedural right to privacy, but privacy as an aspect of individual rights.

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2 hours ago, Eiuol said:

No country does. All people have individual rights by virtue of being in a social context. We don't say that people have particular rights as relative to the particular social context in which they live. Countries can either fail or succeed at protecting individual rights. Since it doesn't matter which country someone is from in order for them to have rights, we don't need to specify where those people come from.

 

We are talking about immigrants, not people who live in foreign countries...

 

 

Imagine yourself shipwrecked on that famed "desert island". Alone, obviously you can't have any more rights than a palm tree and Fiddler crab--i.e. no human, intrinsic, natural, nor individual, rights. Adapting to your environment and using nature to your ends you do have, indeed, total freedom of action (from others), and still you'd have to be highly rational (moral) to survive and lead any sort of good life. Eventually, another person is washed ashore, then others. You have a "social context". You have a territory. Among you, you nominate some individuals to form a small judiciary and police force. You have a rudimentary government. That initial freedom of action towards your "good life" - which only other people can prevent and curtail - is established and guaranteed, for all. You have individual rights (of property, etc.) If many more persons arrived (on a boat), at a certain stage if they wished to remain, you'd ask them to promise to abide by the island's individual rights and governance, or leave. They don't have an intrinsic or human right to enter and stay, merely by virtue of being humans.

And if you explored by boat, discovered another inhabited island, you could not expect and insist on these other islanders accepting and treating you by your own island's particular system of rights. 

Individual rights are a universal truth (by the standard of value, man's life), but that's not to mean that they have been and are recognized or practiced, universally. The preconditions of rights are the individual in "a social context", "territorial integrity", and "A" government which protects and preserves them. This last is crucial, I think.

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12 hours ago, Eiuol said:

To go towards DA's post, I agree that law enforcement needs information to perform its duty. But I don't see a need for there to be some special consideration at the border, as 2046 says. If information is needed, random searches on some individuals isn't really helping anything even if it is easier compared to other methods.

I don't know where I've advocated "random searches on some individuals." I've advocated stops at the border (not random, nor even selective, but all those who cross) for the purpose of gathering information -- though it's true that 2046 describes that as a "search," and I've not argued the point. If it is a "search," it is apparently not considered "unreasonable" by current jurisprudence.

The basis of the reasonableness of the stop/"search" is what I'm trying to get at with the fact of changing jurisdiction.

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The DEA should be concerned with Mexican law enforcement and communicate with them in order to figure out who might be worth questioning.

Sure. So suppose the DEA has a list of names, or even faces, of high-powered Mexican cartel figures. What then? If Gus Fring isn't stopped at the border at any point, if he simply drives on through, what exactly is the DEA supposed to do with that information?

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It's not like by crossing jurisdictions everyone starts from scratch.

Except that American law enforcement won't have access to all of the data that Mexico does, let alone every other country. So far as I know, there's no worldwide criminal database: all of the information is compartmentalized, primarily by national jurisdiction.

So in a way, it is very much like starting from scratch; if there's a wanted murderer in, say, Paraguay, who manages to cross through to the US/Mexico border (because he's never stopped, no one checks identification, etc.), and he makes it to the United States, then suppose he is later stopped for some traffic violation in Topeka. He gives his name as "Joe Smith." He has no other identification, and his fingerprints are not in the US record. Are Topeka PD going to track down his information all the way to Paraguay? How?

As far as I can tell, getting across the US border is very much a clean slate for our Paraguayan murderer, because he has managed to cross from a jurisdiction where he was wanted (where the evidence of his crime exists, and with it probable cause for further search/seizure/incarceration) to a jurisdiction where he isn't at all known.

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By the way, for unreasonable searches, I am including using phones to scan someone's face and see if they match a database.

So 2046 at least agreed that reading a license plate number and entering that into a database would not count as a "search" (or if it does, not an "unreasonable" one). But would you not go so far? Or if you think that's okay, what is the difference between entering a license plate number and scanning a face, to compare either against electronic records? What about using eyes to "scan" someone's face and see if they match a database (i.e. memory)? :)

How do we begin the trail towards "probable cause" if every step along that path is itself an "unreasonable search" needing prior justification? Zeno makes for a poor police officer, and the gathering of information must start somewhere, via some generalized and warrant-free method.

Edited by DonAthos
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1 hour ago, DonAthos said:

what is the difference between entering a license plate number and scanning a face

I'll detail it more later, but is it not enough to say that looking at a license plate number requires unaided ability beyond using your eyes and brain and a little bit of writing, while facial scans involve and require a computer with sophisticated algorithms that go far beyond any human capability?

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9 hours ago, Eiuol said:

I'll detail it more later, but is it not enough to say that looking at a license plate number requires unaided ability beyond using your eyes and brain and a little bit of writing, while facial scans involve and require a computer with sophisticated algorithms that go far beyond any human capability?

Er... no? :)

I mean, I'm aware of the literal difference involved -- but I'm not convinced there's a difference in kind, vis a vis "privacy." I don't know why "unaided ability" should matter at all or be considered virtuous, or make the difference between what you contend to be a violation of right. And besides, the totality of checking a license plate also requires "aided ability" -- a computer, for instance, and telecommunications, and... a car.

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15 hours ago, DonAthos said:

I don't know where I've advocated "random searches on some individuals.

Sorry if that was an unfair characterization of what you meant to say. When I read about stopping "all those who cross", that sounds like random searches to me. Well, maybe not literally random people since it is everyone, but if it isn't selective, it's arbitrary. Presumably, when you say stop, you mean stopping people so that you can inspect or search something. I don't think you would mean watching license plates and asking people to slow down see can look at them. When you say stop, I think of a border patrol agent telling me to stop my car, ask where I'm going, why am going there, and otherwise intrude upon my privacy by threat of arrest or some kind of punishment. Maybe let's forget the word search and focus on inspection. I'm leaving aside asking questions, because it requires no physical interaction (unless stopping means asking me to leave my car and saying I must go into a building for questioning).

To sum that up, I'm claiming that stopping all who cross without a standard of selection is arbitrary and therefore random.

15 hours ago, DonAthos said:

So suppose the DEA has a list of names, or even faces, of high-powered Mexican cartel figures. What then?

Then it would be selective, and then I'm fine with it. That is, a systematic and selective way to decide who to stop is perfectly fine to me. I feel like I'm missing something about your question.
 

15 hours ago, DonAthos said:

Except that American law enforcement won't have access to all of the data that Mexico does, let alone every other country.

Fair enough. I would say though that having such a database is conducive to protecting individual rights as a procedural matter (like you said, procedure matters). Interpol is the best example I can give, but I don't know much about it to discuss it.

How does anyone know if someone is searching for him? If law enforcement fails to pass along information, or the US law enforcement fails to communicate with foreign law enforcement, the failure is on law enforcement. The failure isn't the border to stop everyone who crosses. Yeah, stopping everyone who crosses the border would solve the problem, but so would data sharing and communication. If government and law enforcement fails to operate efficiently and effectively, it will fail to protect your rights. Stopping all who cross is not efficient, it doesn't sell communication problems, and has a huge amount of tension with individual rights (as in with major contentions even if you might be able to justify it).

4 hours ago, DonAthos said:

but I'm not convinced there's a difference in kind, vis a vis "privacy."

It's not the process of checking that matters I think. Talking about the initial information that is perceptually available to you. Cameras would probably be appropriate because it's still basically the perceptual stuff you do. But facial scanning is not even close to what you do perceptually because it takes into account things you literally are unable to note on your own. It's not the database comparison that bothers me, but the information you use for the comparison is derived from something you can reasonably expect to be private in day-to-day life. Reasonable, as in the things people pick up just by being conscious. 

That's how you get prior justification by the way. You make simple observations to start. Science works the same way. You don't start with complex procedures that take hours to do by hand or done by a computer. It's not justified to start analyzing all the numbers. You start with basic things like did a participant follow directions, or what color did the chemical turn when it was combined with another. From there, you are justified in continuing the investigation. But you can't start running tests that should only be done five steps down the line; I don't run an MRI just because you tripped on a step (even if it is possible that it's an early sign of ALS). Maybe you observe a certain chemical disposed in a nearby lake connected to a restaurant in town. Restaurants don't usually have chemicals to dispose of, so this is a strong justification for the possibility that the restaurant is doing something very bad (maybe poisoning food on purpose?). In the case of a border, maybe you see a bloodied arm hanging out the back of a car. That's a very blatant example, but that's the sort of thing I'm thinking about.
 

Edited by Eiuol
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