In order to be polite, you have to speak. The instant you start speaking, anything you say can be held against you in a court of law. His primary position is that in speaking, you've instantly jeopardized yourself and set yourself up for criminal charges. He is a lawyer - and shows how even answering the question "Business or Pleasure" - sets you up for a large number of criminal charges - REGARDLESS of whether you tried your best to answer them honestly.
It's basically the same position you should always take with a police offer who is trolling (as opposed to performing actual police work) - Always refuse to answer anything but the most basic questions such as your identity, always (always) refuse to consent to a search.
This is one of those libertarian "25 laws you break in the process of squeezing your own orange juice in the morning" principles that is fun to argue about but not very useful in the real world.
The reality is that while personality flaws and broken power dynamics may (but almost certainly won't) cause border police to charge you with some crime if you misstate "business or pleasure", absent any demonstrable intent of comitting a crime, you're unlikely to see the inside of a courtroom on such a charge, let alone be convicted. For instance, in the original post: saying you were in Antwerp for pleasure isn't going to get you a "Bureau of Prisons Number" without the satchel of smuggled diamonds.
I don't want to be misconstrued here; I'm glad we have crazy douchebags like this guy to stand up for our rights to refuse to answer questions, especially dragnet-style questions explicitly intended to trip criminals (and whatever collateral innocents come with them) up at the border.
But having said that, there's an element of the social contract at play here. The exact same logic this guy is using suggests that he also shouldn't answer the questions of police investigating crimes in his neighborhood. "Have you seen this man? We think he just shot up your neighbor's car."
Our society doesn't work if the police get absolute authority over us, and our protections against authoritarianism will degrade if people like this guy don't occasionally stand up for them. But society also won't work if everyone routinely refuses to cooperate with the police, who are dependent on our support to get the important stuff in their charter done.
I highly recommend "Cop in the Hood", a sociologist's writeup of a year spent as a Baltimore East Side patrol cop, for insight into all the crazy dynamics at play here.
> But having said that, there's an element of the social contract at play here. The exact same logic this guy is using suggests that he also shouldn't answer the questions of police investigating crimes in his neighborhood. "Have you seen this man? We think he just shot up your neighbor's car."
I believe this is different. In this case, true, you have no legal obligation to answer a cop's questions when he is investigating a crime. But I do think you may possibly have a moral obligation and answering his questions is part of your civic duty.
However, I don't really see any such obligation here when they are treating you as the suspect. There is no concrete reason for them to suspect you in the first place, other than their blind, blanket suspicion of everyone.
I agree. This guy is trying to apply an abstract principal to something that in reality doesn't really make any sense.
However, I don't think they have a blanket suspicion of everyone.
It's pretty clear to me that people like the border patrol, or anyone else who has a similar job of trying to find that needle in the haystack, the one person they should rightfully be suspicious of, is looking for certain telltale signs: dark skin, non-affluent dress and/or nervous behavior.
Do you really think they have a blind suspicion of everyone? The vast majority will go through with minimal questioning, and these types of questions try to tease out suspicious behavior. I don't think it's a "you are guilty by default" type situation.
How would you rather the border patrol act? Keep in mind there are various types of illicit behavior that are not desired within society--this is a fairly inevasive method all things considered.
Isn't being suspicious of everyone the rational response? You see thousands of people per year and your entire job is to identify the few who are doing something wrong (smuggling, using a false passport, whatever).
If you're not going to be suspicious of everyone, which subset of them should you be suspicious of?
What do you mean by cooperating with the police? The guy abided by the law, which he was aware of and the border agents were not (or pretended not to be).
You must be of the opinion that laws are too lenient and that the additional bully tactics used by cops, etc., are actually in the interest of the general public b/c they help to correct for insufficiently strict laws.
If you don't believe this, then what is the nature of your argument that we should just comply with their wishes? Politeness? Tradition? Respect for authority? Humility?
I'm confused by this comment because I don't think the laws are too lenient, I don't believe in "bully tactics", and I do think that for society to work properly we do, for the most part, need to assist the people with charter with enforcing our laws.
I'm not repeating this in every comment because it feels tiresome, but, like I said, I'm glad this guy is out there pushing the frontiers of our civil liberties, but I still think he's a bit of a douche, and I still think his arguments don't make much sense: his fear of the consequences of answering "business or pleasure" seems irrational compared to the powers the border police already have to search his luggage, the files on his computer, and his body cavities without a warrant.
Incidentally, the principled stand this guy took for not answering questions seems a bit hollow when you consider that, semiotically speaking, he pretty much answered their question: "yes", he said, "I am very much worth your time to scrutinize further."
Principled or not, how is respectful, quiet dissent not completely appropriate.
Consider how comfortable a person is when speaking to a telemarketer compared to a police officer or border patrol officer.
That we must grovel before those in uniform is a clear sign that they have too much power.
Of course his behavior was irrational if he was someone trying to smuggle in contraband. But it was rational if he's someone who feels that his rights as a law abiding citizen have been compromised by the re-entry procedures and seeks to make a point.
I don't think you intended this, but this is a mix of strawman and slippery slope fallacies. It's not "the exact same logic." To begin with, in the OP's story he himself is the "suspect", and he knows he's innocent. There's no moral dilemma over whether to reply to the questions, only one of practical concerns versus abstract ideals.
I don't think the world was in danger of people taking the OP's argument to the witness situation you describe, and thus I don't need that caveat was necessary.
It's easy to see that being innocent doesn't eliminate any moral dilemma over answering questions. Most people are innocent! By answering questions, they're helping the police stop wasting time with them.
Be thankful that we have the right not to answer questions, and, yes, be thankful that crazy guys like this are out there demonstrating that right. But then remember the social contract and your obligations as a citizen; if the police are asking a reasonable question, you should answer.
Again, the OP is not talking about reasonable questions. Whether one is traveling for business or pleasure is not a reasonable thing for a customs cop to inquire a citizen upon entry into its own country. It is indeed none of their business.
I guess they only want to intimidate you and get you talking for a quick psychological profiling. And the OP responds like I wish everyone with nothing to hide did.
And that doesn't mean entrance lines would take forever. Police adapt their routines to the available time and resources.
> But having said that, there's an element of the social contract at play here. The exact same logic this guy is using suggests that he also shouldn't answer the questions of police investigating crimes in his neighborhood. "Have you seen this man? We think he just shot up your neighbor's car."
Quite importantly in this particular scenario, a police officer is not the same as a federal officer. Lying to a police officer is not a crime (at least usually, you may want to check your local statutes).
Completely agree with you regarding assisting police doing actual police work. It's the ones who are trolling and/or trying to trip people (guilty or innocent) into saying things that incriminate themselves because they are too ignorant of their rights to keep their mouths shut that I'm addressing here.
Can't really argue with anything else you said either - at the end of the day, I'm just hoping that we can fight a standing action on our rights to privacy, freedom from unjust search, etc... I see this guys response to these encroaching requests as a minor battle in a never-ending war. Ironically, I'm actually in favor of Full Body Emission Scans for people getting on airplanes, for the explicit search for explosives - so I might even be to the right of you on that topic.
And, as a fan of The Wire, I'll certainly track down "Cop in the Hood". Thanks.
> In order to be polite, you have to speak. [...] anything you say can be held against you in a court of law.
I think this is going a bit too far.
Can you come up with any reasonable way that "Hello, how are you?" and a smile can be used against you? This way you're polite. If this could be used against you in some way, why would you believe that any laws or rules would be obeyed?
On the other hand "None of your business" can be used against you. Saying that, you're being unreasonably aggressive in your conversation.
The author is a lawyer and states that ""None of your business" is a legally safe response, and does not open you up to criminal charges. Can you walk us through how you believe you might have violated a criminal statute with that specific answer?
With that said, "Hello, how are you" sounds fine (to me). But "Business or Pleasure" is a question that is fraught with legal peril.
It is fraught with theoretical peril in this guy's exposition, but I haven't seen any evidence that it's actually fraught with any practical peril. Many millions of citizens are asked this question every year, but "business or pleasure" does not appear to be a significant vector for criminal convictions the US.
This notion that answering "just visiting" to that question is some kind of pernicious legal tripwire seems like a fantasy, especially considering the fact that the border police can search you without provocation or cause if they really want mess with you.
You are one of a fairly small number of people worldwide who can be considered to be experts in computer security, yet you keep admitting here that this guy's approach is theoretically valid, and you just have a problem with it practically.
I really don't understand that.
How is that not like my saying, "Well, sure, theoretically I should be hashing the passwords in my database, but practically speaking we can't expect that it's going to matter anyway."?
You are making an allusion to the perennial controversy over "theoretical" vs. "practical" vulnerabilities in my field. That's an interesting point, but unfortunately not a valid one.
In security, "theoretical" vs. "practical" is a fig leaf used (mostly) by vendors to avoid facing up to their responsibilities after having shipped flawed products. Calling something "theoretical" shields people from culpability, mostly in public relations, but clearly isn't actually an assessment of the real-world impact of most vulnerabilities. It's spin.
But the fact that the words "theoretical" and "practical" can be used as spin doesn't mean the concepts of "theory" and "practice" are inherently spin; the reality is quite the opposite. Outside of computer security, we'd be well advised to use those words more; our adhesion to the notion that all theoretical threats are practical is probably a major component of the "security theater" trend that has us all getting electronically strip searched in airports.
Yeah, I see what you're getting at. For my part, while I'm interested in computer security, I'm more interested in legal (or "real-life", or "social", or what-have-you) security. So, I'd be more inclined to say that when there's a theoretical legal attack, it should be handled as though it were a practical one.
I recently had a close friend go through the court system on multiple felony charges. That particular introduction to the legal system was eye-opening.
I'd be inclined to say that when there's a theoretical legal attack, it should be handled as though it were a practical one.
The real flaw in this argument is that as soon as you mark yourself out as "that guy who's being a dick" you attract a lot of attention, and you're more likely to wind up in court on some other charge.
For instance, there's a very high probability once you've started being a dick that they'll decide to thoroughly search your suitcase. Have you accurately reported the value of all goods acquired overseas on your customs declaration form? If you haven't (or even if you have but they feel like quibbling over the value of some of those goods, or if they suspect that some of the goods acquired in the US were acquired overseas) then you could potentially wind up getting charged over that.
The real flaw in this argument is that as soon as you mark yourself out as "that guy who's being a dick" you attract a lot of attention, and you're more likely to wind up in court on some other charge.
But doing the right thing can also get you into trouble. Just as Pascal Abidor.
Another way to say that is that there's no such thing as a "theoretical" vulnerability. There's either a working exploit, or there is not and we can test it. In physical security, though, there are plenty of movie plot threats that nobody has ever actually tried and which are not, in fact, practical.
With software, you can have the computer try millions of times to go after that one crazy race condition. Meanwhile, your average crazy bomber generally has one chance to get it right before everyone on the plane attacks and subdues him.
Tone of voice is just as important. I have an in-law who’s a cop, and most times if you're a jerk, he says you get the ticket you might otherwise not have. It’s very much an issue of power because someone needs to control the situation—you or them. Not to mention, being argumentative gives them a reason to suspect something else might be going on, and in turn, mess with you. Why give them that chance?
I wonder if he would try another experiment where he actually answers the questions as asked, but instead makes his tone sarcastic, etc. I bet he's pulled out of line just as quickly for cooling down, even though legally he’d have complied.
I think the point of saying nothing is that once you open your mouth, you can say something inadvertently that could be used against you (rightly or wrongly). Once the words start coming out, one follows the other, and you'll likely end up saying something you didn't want or need to. If your policy is to maintain silence except for the most basic interactions, then accidental self-incrimination is much less likely.
Lying to a federal agent. You're tired and angry dealing with the border security, but responding "great" or "fine" is technically 5 years federal prision.
I'm not sure how they could actually prove that, save you telling someone else you're tired and angry.
Please find one example in the history of ever of someone doing 1 day --- forget "5 years" --- for responding "great" or "fine" to a border police officer.
You just cited a case of an alien being denied entrance to the US as evidence of the notion that someone might be convicted of a felony and serve time because they answered "great" or "fine" to a border police question.
A friend of mine, who I will not name, used to get pulled over a lot, for a variety of reasons (often deserved).
This happened often enough, and his lawyer always advised him to not say a word, but especially when he'd been drinking, the act of getting him to talk long enough to say that he was invoking his right to silence would usually reveal that he'd been drinking.
To mitigate it, he printed a laminate card, that he kept in his wallet, which very respectfully and politely invoked his right to silence. When pulled over, he would simply remove the card from his wallet and hand it to the officer.
I don't know that it ever got him into or out of any trouble, but at least he had a routine, and it prevented him from talking unnecessarily.
Perhaps the author could have made use of something like this?
If I'm being perfectly honest, it wouldn't have surprised anyone if at any time he had to spend the rest of his life in jail. He's not someone I was ever particularly proud of knowing, and in fact, the only impressive thing about him, ever, was that he carried that card around.
Actually, wasn't there a case recently where someone refused to speak, but because he didn't say that he refused to speak, the judge ruled that he had not exercised his right to remain quiet?
Yeah, it really was that stupid. Because he had not specifically stated that he was using that right, they kept badgering him. The judge declared it legal since he didn't protest it at the time.
That was a sensible case, if I recall correctly. The "right to remain silent" means exactly what it says. It has further been extended to mean that if you tell the police you're exercising your right to remain silent then they have to call off the interview.
What this guy did was just to sit almost-silent in an interview room for a couple of hours until eventually the cop managed to prise a confession out of him (for what it's worth, the charge was murder and there was a lot of other evidence in addition to the confession, you can look it up). What the murderer's lawyer wanted was to have the confession deemed inadmissible (and hence a new trial, which was unlikely to result in a different verdict due to the overwhelming other evidence but would at least line the lawyer's pockets a bit more) on the grounds that sitting there and not answering questions for a couple of hours should oblige the police to stop asking questions.
"And finally, the court's conservatives used their 5-4 advantage to rule that suspects must break their silence and tell police they are going to remain quiet if they want to invoke their "right to remain silent" and stop an interrogation, just as they must tell police that they want a lawyer."
Apropos nothing, how seriously can you take a news story that uses the words "the court's conservatives used their 5-4 advantage to rule..."? Wow, that's bad writing.
I highly doubt that any speech that's part of a one sentence explanation of your civil rights is going to land up working against you in court. The odds of that are lost in the noise of the odds that the officer will fabricate evidence against you, including spoken declarations you never actually spoke.
It's basically the same position you should always take with a police offer who is trolling (as opposed to performing actual police work) - Always refuse to answer anything but the most basic questions such as your identity, always (always) refuse to consent to a search.