Search and Seisure

[Soldier]

If a private company wants my genetic map as a prerequisite to insuring me, that's their choice.

[MyrddinsPrecint]

Originally Posted by jeff

MyrddinsPrecint, telkanuru - don't forget the dwarves. They have lots of closet space in their caves, they appear to have only one gender, and I think Gimli and Legolas came to have a close understanding.

are you implying that Gimli and Legolas would be ashamed of the gay porn hidden in Moria???

[Soldier]

So that's the secret they discovered when they dug too deep in the mines...

[kalivor]

Originally Posted by gojujay

I'm just wondering if they could use a refusal by the actual guilty party as reasonable cause to go after other evidence against said party. I don't know if that specific action could be used with other reasonable suspicion to bootstrap probable cause for a warrant to search say, your residence, car, workplace, etc., because of your Fifth Amendment guarantees.

For example; you happen to be in the area where a crime is committed. A witness gives a description that fits you, along with half-a-dozen other individuals. The police ask for voluntary DNA samples, which the other five individuals give. You refuse. Is that refusal, plus physical and temporal proximity to the crime, and a non-specific description enough for the police to get a search warrant for your property? To my understanding, your refusal shouldn't even be considered for any warrant application.

But it wouldn't be the refusal there, would it?

The police have six suspects. Five are cleared (I presume) through DNA testing. This leaves one suspect, for which the police will likely seek a warrant. The need for a warrant here can be deduced without using a refusal as reason.

[jeff]

Originally Posted by gojujay

Not sure how this differs with life insurance companies. I don't particularly like it , but they are private companies. To compel them to assume a greater level of risk than they deem appropriate, seems socialist/fascist, i.e. the government making business decisions for you.

That takes it out of the public sphere and puts it in private, as you say, But, think about this: insurance is based on the knowledge of populations' heatlth and life expectancies. For instance, a non-smoking female at age 35 has such-and-such a life expectancy or lifelihood of getting breast cancer. Some individuals will live longer, some less - the risk to any one individual is met by the overall population. That's why we buy insurance.

Once they get to the point where they can accurately predict an individual's genetic predisposition, then the game's over: they test you as a requirement for getting insurance, and simply deny you coverage if you have gene markers for particular disease. Then you are truly screwed, since you will not be able to get medical insurance.

This is already happening. It turns out this type of testing is illegal for HMOs in New Jersey, but that doesnt prevent being denied life insurance or being fired from your job. Not a pretty picture if you're one of the people who becomes an "untouchable"

Originally Posted by gojujay

That is a mental image I could have happily lived the rest of my life without

Glad to help!

[jeff]

Originally Posted by MyrddinsPrecint

are you implying that Gimli and Legolas would be ashamed of the gay porn hidden in Moria???

Heck, I'm wondering if they made the gay porn hidden in Moria!

Oh dear,Tolkien would be very upset with what we're doing to his book! (If you want to see something funny and disrespectful, get a copy of Bored of the Rings)

[MyrddinsPrecint]

Originally Posted by jeff

Heck, I'm wondering if they made the gay porn hidden in Moria!

that's saved for frodo and sam. .... i mean, i tried to believe that it wasn't actually a romantic relationship, and then.....

frodo disposes of ring, frodo and sam fall, exhausted onto rock, but are not asleep yet.

slow fade to black.

slow fade in from black on the two of them asleep.



WHAT WAS IN THAT FADE?????????????????

[MyrddinsPrecint]

Originally Posted by jeff

That takes it out of the public sphere and puts it in private, as you say, But, think about this: insurance is based on the knowledge of populations' heatlth and life expectancies. For instance, a non-smoking female at age 35 has such-and-such a life expectancy or lifelihood of getting breast cancer. Some individuals will live longer, some less - the risk to any one individual is met by the overall population. That's why we buy insurance.

Once they get to the point where they can accurately predict an individual's genetic predisposition, then the game's over: they test you as a requirement for getting insurance, and simply deny you coverage if you have gene markers for particular disease. Then you are truly screwed, since you will not be able to get medical insurance.

This is already happening. It turns out this type of testing is illegal for HMOs in New Jersey, but that doesnt prevent being denied life insurance or being fired from your job. Not a pretty picture if you're one of the people who becomes an "untouchable"

isn't this what Gattaca is all about?

^rhetorical question, that is what gattaca is all about.

the really hot main character (ethan hawke) is shown to be physically inferior, and so he can't follow his dream into space travel. so he steals the genetic identity of another really hot person (jude law) in order to do what he loves.

it turns into a very refined form of discrimination. you can't say one particular race is inferior.... but if someone is at a high risk for a heart condition, isn't as intelligent, etc etc etc.... they actually are less equipped to succeed in a high profile job.

on one hand, do you want your government paying to train an astronaut who's just going to die?

on the other hand, do you want the government to refuse to hire a scientist who might get sick, if that scientist might have been the only person able to cure cancer?

[mrbiggs]

Originally Posted by Dee EffEll

Here's a better example: Suppose your state has decided that it is having a fiscal crisis, and that all citizens must be tested to see if their DNA indicates they are predisposed to certain diseases that are expensive to care for. This information will be disclosed to all potential employers that will hire in employees in your state, so as to give them a financial incentive and advantage in labor costs. Also, if your DNA test shows you have such a predisposition, you will not be eligible for disability or unemployment compensation, since "we just can't afford it."

Wonder if the "I have nothing to hide" folks want to think about this one.

A central issue in the concept of privacy is whether or not the right of privacy is need because some things are inherently personal so as to need protection (the gay porn example) or if the use of the information (denying insurance) is why the protection is needed. I don't care if my SSN is disclosed, but the proiblem is that it can be used illegally to do harm to me.

Note that the cops in the cited article made their request to submit the sample voluntary. They claim this avoids the 4th/14th amendment violation. Suppose they publish a list of those who did so submit? Can't the casual observer infer everyone else refused? Wonder what all those othe rpeople in that town have to hide, hunh?

Yes, that would be another exception. But as I said before, under normal circumstances, the police can search my stuff if it helps them catch a real criminal.

[Maeve_Mari]

Originally Posted by mrbiggs

Yes, that would be another exception. But as I said before, under normal circumstances, the police can search my stuff if it helps them catch a real criminal.

What if while searching your stuff to find a real criminal they find instead a key to your lockbox where you keep those special pictures? Okay that they just go check that out too? What if one of the searching officers happen to be your girlfriend's father or big, older brother? Still okay. I mean it is your personal library. Not anything illegal - just special.

Do you think that once you've voluntarily let them search your stuff, that you can later put qualifications on what/where they can search?

[mrbiggs]

Originally Posted by Maeve_Mari

What if while searching your stuff to find a real criminal they find instead a key to your lockbox where you keep those special pictures? Okay that they just go check that out too? What if one of the searching officers happen to be your girlfriend's father or big, older brother? Still okay. I mean it is your personal library. Not anything illegal - just special.

Do you think that once you've voluntarily let them search your stuff, that you can later put qualifications on what/where they can search?

No, but as I said, as of right now, I don't really care if they search my stuff. Also, your example is not entirely accurate. If I'm pulled over, and I give them permission to search my car, that does not give them permission to search my house. (Right?) Unless, of course, they find something that would get them a search warrant.

If they want to search my house, well, I'm not going to just say yes, I'd have to ask what they're looking for. If they don't tell me, they need a warrant. A house is alot bigger, and holds alot more personal things than a car.

But my point is that though I probably will rarely or never use my fourth amendment rights, I think that they are absolutely necessary.

[gojujay]

Originally Posted by CutLass

It's quite a slope here. Who should see your genetic map? Your insurance company? Your employer? Your spouse or girlfriend? Do you want to know that somewhere in your late future you'll have a terminal condition? Do you want to know about it when you are 20 or 30 when it may not strike you until you are 70?

What if your map is wrong? What if something happens to you along your life which for some reason alters your genetic map?

Isn't this a voluntary transaction between two private individuals? No one is forcing you to contract with this company.

Lot of ifs there...

[gojujay]

Originally Posted by kalivor

But it wouldn't be the refusal there, would it?

The police have six suspects. Five are cleared (I presume) through DNA testing. This leaves one suspect, for which the police will likely seek a warrant. The need for a warrant here can be deduced without using a refusal as reason.

I'm not sure if the vague testimony and physical and temporal proximity are enough, by themselves for a warrant, even if the other suspects were cleared by DNA testing.

[Epee_Pox]

Originally Posted by gojujay

I'm not sure if the vague testimony and physical and temporal proximity are enough, by themselves for a warrant, even if the other suspects were cleared by DNA testing.

The standard for getting a warrant to search a place is "probable cause" -- which is shorthand for "it is more likely than not that certain evidence of a crime exists, and it is more likely than not that this evidence will be found in a specific location at this time."

The same standard applies to getting a warrant for arrest -- it is more likely than not that a crime was committed, and that this particular person committed the crime.

Just because you're a suspect isn't enough for probable cause. Even though the other suspects were cleared, that still doesn't mean the cops have enough basis to arrest. Depends on what the basis of their suspicion is. (Although, if their suspicion was based on probable cause, they probably would have made the arrest already. So I'd guess that the mere elimination of other suspects would not be enough to justify an arrest.)

[gojujay]

Originally Posted by jeff

That takes it out of the public sphere and puts it in private, as you say, But, think about this: insurance is based on the knowledge of populations' heatlth and life expectancies. For instance, a non-smoking female at age 35 has such-and-such a life expectancy or lifelihood of getting breast cancer. Some individuals will live longer, some less - the risk to any one individual is met by the overall population. That's why we buy insurance.

Once they get to the point where they can accurately predict an individual's genetic predisposition, then the game's over: they test you as a requirement for getting insurance, and simply deny you coverage if you have gene markers for particular disease. Then you are truly screwed, since you will not be able to get medical insurance.

This is already happening. It turns out this type of testing is illegal for HMOs in New Jersey, but that doesnt prevent being denied life insurance or being fired from your job. Not a pretty picture if you're one of the people who becomes an "untouchable"

Very true. That's why I said I don't like it. They are private companies, however and must do what is in their best interest. This is where we run into the problem of who should pay for medical care. I believe it should be borne by the individual, while, based on your previous posts, I gather that, you believe society should bear some or most of the burden, based on need.

The health insurance business would go through a drastic change. I believe that, eventually, everybody would be shown to have genetic predisposition to some type of fatal disease. How far could the insurance companies go? All their customers would eventually be precluded. Then what? Would they begin denying coverage based on lifestyle choices? This probably should be taken to a different thread...

[gojujay]

Originally Posted by Epee_Pox

The standard for getting a warrant to search a place is "probable cause" -- which is shorthand for "it is more likely than not that certain evidence of a crime exists, and it is more likely than not that this evidence will be found in a specific location at this time."

The same standard applies to getting a warrant for arrest -- it is more likely than not that a crime was committed, and that this particular person committed the crime.

Just because you're a suspect isn't enough for probable cause. Even though the other suspects were cleared, that still doesn't mean the cops have enough basis to arrest. Depends on what the basis of their suspicion is. (Although, if their suspicion was based on probable cause, they probably would have made the arrest already. So I'd guess that the mere elimination of other suspects would not be enough to justify an arrest.)

Which leads us back to; should the refusal to submit a DNA sample be used against you? I say no, but I'm a Libertarian (and proud of it, he says while trying to hide from jeff)

[Epee_Pox]

Originally Posted by gojujay

Which leads us back to; should the refusal to submit a DNA sample be used against you? I say no, but I'm a Libertarian (and proud of it, he says while trying to hide from jeff)

No. But do be aware that should you so refuse, the police may well start looking more carefully for other evidence that might incriminate you. The law does not prohibit the police from being suspicious bastages.

[Inquartata]

Originally Posted by mrbiggs

I probably will rarely or never use my fourth amendment rights, I think that they are absolutely necessary.

If you think so, then you owe it to the law to use them. Rights are like muscles: if they are not exercised, they atrophy and fall away, and the body politic loses the use of them.

Parenthetically, I am always amazed at the number of people who waive these rights even when they are guilty. You need only watch a few episodes of "Cops" to see people give police officers permission to search them, their cars or their homes, knowing they have contraband. Do they really think that a show of cooperation is going to make the police less suspicious of them, or disinclined to perform the search, or be more beneficent when they find those baggies of crack and the pistol? Do they really think they're such geniuses that they thought of hiding places the police are going to miss? Are they really so stupid as to believe that astonished "Those aren't mine!" is going to avail them somehow? Yet they do it anyway, when refusing permission to search might be their only hope of escaping justice...

[jeff]

Originally Posted by gojujay

Very true. That's why I said I don't like it. They are private companies, however and must do what is in their best interest. This is where we run into the problem of who should pay for medical care. I believe it should be borne by the individual, while, based on your previous posts, I gather that, you believe society should bear some or most of the burden, based on need.

The health insurance business would go through a drastic change. I believe that, eventually, everybody would be shown to have genetic predisposition to some type of fatal disease. How far could the insurance companies go? All their customers would eventually be precluded. Then what? Would they begin denying coverage based on lifestyle choices? This probably should be taken to a different thread...

Maybe this should go to a different thread - let's see if it grows enough to warrant it.

Certainly HMOs and insurance companies are private institutions, but they are regulated by government. For example, in NJ, HMOs must pay a properly filed claim after a certain number of days or be subject to action by the state; there are also laws protecting the consumer from improperly having claims denied, and as I mentioned, being denied insurance in the first place via DNA tests. Why are such regulations necessary? Because without them there are terrible abuses - definitely including denying contracted care for legitemate medical needs of HMO members. There is a very unequal contest between a large corporation and an individual who desperately needs care. This is an example of why I'm against laissez-faire capitalism: the individual is powerless without government protection, and methods like challenges via the legal system too slow and expensive to be useful (and the corporations can outgun the individual there as well). This, BTW, is one of the fatal flaws in Libertarianism, in my opinion. The losers and weak (and against corporations, t