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- Laurence H. Tribe, "The Constitution in Cyberspace"
- PREPARED REMARKS
- KEYNOTE ADDRESS AT THE
- FIRST CONFERENCE ON COMPUTERS, FREEDOM & PRIVACY
- Copyright, 1991, Jim Warren & Computer Professionals for Social Responsibility
- All rights to copy the materials contained herein are reserved, except as
- hereafter explicitly licensed and permitted for anyone:
- Anyone may receive, store and distribute copies of this ASCII-format
- computer textfile in purely magnetic or electronic form, including on
- computer networks, computer bulletin board systems, computer conferencing
- systems, free computer diskettes, and host and personal computers, provided
- and only provided that:
- (1) this file, including this notice, is not altered in any manner, and
- (2) no profit or payment of any kind is charged for its distribution, other
- than normal online connect-time fees or the cost of the magnetic media, and
- (3) it is not reproduced nor distributed in printed or paper form, nor on
- CD ROM, nor in any form other than the electronic forms described above
- without prior written permission from the copyright holder.
- Arrangements to publish printed Proceedings of the First Conference on
- Computers, Freedom & Privacy are near completion. Audiotape and videotape
- versions are also being arranged.
- A later version of this file on the WELL (Sausalito, California) will
- include ordering details. Or, for details, or to propose other distribution
- alternatives, contact Jim Warren, CFP Chair,345 Swett Rd., Woodside CA 94062;
- voice:(415)851-7075; fax:(415)851-2814; e-mail:jwarren@well.sf.ca.us.[4/19/91]
- [ These were the author's *prepared* remarks.
- A transcript of Professor Tribe's March 26th comments at the Conference
- (which expanded slightly on several points herein) will be uploaded onto the
- WELL as soon as it is transcribed from the audio tapes and proofed against
- the audio and/or videotapes.]
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- "The Constitution in Cyberspace:
- Law and Liberty Beyond the Electronic Frontier"
- by Laurence H. Tribe
- Copyright 1991 Laurence H. Tribe,
- Tyler Professor of Constitutional Law,
- Harvard Law School.
- Professor Tribe is the author, most recently, of
- "On Reading the Constitution" (Harvard University Press,
- Cambridge, MA, 1991).
- Introduction
- My topic is how to "map" the text and structure of our
- Constitution onto the texture and topology of "cyberspace". That's
- the term coined by cyberpunk novelist William Gibson, which many
- now use to describe the "place" -- a place without physical walls
- or even physical dimensions -- where ordinary telephone
- conversations "happen," where voice-mail and e-mail messages are
- stored and sent back and forth, and where computer-generated
- graphics are transmitted and transformed, all in the form of
- interactions, some real-time and some delayed, among countless
- users, and between users and the computer itself
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- Some use the "cyberspace" concept to designate fantasy worlds
- or "virtual realities" of the sort Gibson described in his novel
- *Neuromancer*, in which people can essentially turn their minds into
- computer peripherals capable of perceiving and exploring the data
- matrix. The whole idea of "virtual reality," of course, strikes a
- slightly odd note. As one of Lily Tomlin's most memorable
- characters once asked, "What's reality, anyway, but a collective
- hunch?" Work in this field tends to be done largely by people who
- share the famous observation that reality is overrated!
- However that may be, "cyberspace" connotes to some users the
- sorts of technologies that people in Silicon Valley (like Jaron
- Lanier at VPL Research, for instance) work on when they try to
- develop "virtual racquetball" for the disabled, computer-aided
- design systems that allow architects to walk through "virtual
- buildings" and remodel them *before* they are built, "virtual
- conferencing" for business meetings, or maybe someday even "virtual
- day care centers" for latchkey children. The user snaps on a pair
- of goggles hooked up to a high-powered computer terminal, puts on
- a special set of gloves (and perhaps other gear) wired into the
- same computer system, and, looking a little bit like Darth Vader,
- pretty much steps into a computer-driven, drug-free, 3-dimensional,
- interactive, infinitely expandable hallucination complete with
- sight, sound and touch -- allowing the user literally to move
- through, and experience, information.
- I'm using the term "cyberspace" much more broadly, as many
- have lately. I'm using it to encompass the full array of
- computer-mediated audio and/or video interactions that are already
- widely dispersed in modern societies -- from things as ubiquitous
- as the ordinary telephone, to things that are still coming on-line
- like computer bulletin boards and networks like Prodigy, or like
- the WELL ("Whole Earth 'Lectronic Link"), based here in San
- Francisco. My topic, broadly put, is the implications of that
- rapidly expanding array for our constitutional order. It is a
- cyberspace, either get bent out of shape or fade out altogether.
- The question, then, becomes: when the lines along which our
- Constitution is drawn warp or vanish, what happens to the
- Constitution itself?
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- Setting the Stage
- To set the stage with a perhaps unfamiliar example, consider
- a decision handed down nine months ago, *Maryland v. Craig*, where
- the U.S. Supreme Court upheld the power of a state to put an
- alleged child abuser on trial with the defendant's accuser
- testifying not in the defendant's presence but by one-way,
- closed-circuit television. The Sixth Amendment, which of course
- antedated television by a century and a half, says: "In all
- criminal prosecutions, the accused shall enjoy the right . . . to
- be confronted with the witnesses against him." Justice O'Connor
- wrote for a bare majority of five Justices that the state's
- procedures nonetheless struck a fair balance between costs to the
- accused and benefits to the victim and to society as a whole.
- Justice Scalia, joined by the three "liberals" then on the Court
- (Justices Brennan, Marshall and Stevens), dissented from that
- cost-benefit approach to interpreting the Sixth Amendment. He
- wrote:
- The Court has convincingly proved that the Maryland
- procedure serves a valid interest, and gives the
- defendant virtually everything the Confrontation Clause
- guarantees (everything, that is, except confrontation).
- I am persuaded, therefore, that the Maryland procedure is
- virtually constitutional. Since it is not, however,
- actually constitutional I [dissent].
- Could it be that the high-tech, closed-circuit TV context,
- almost as familiar to the Court's youngest Justice as to his even
- younger law clerks, might've had some bearing on Justice Scalia's
- sly invocation of "virtual" constitutional reality? Even if
- Justice Scalia wasn't making a pun on "virtual reality," and I
- suspect he wasn't, his dissenting opinion about the Confrontation
- Clause requires *us* to "confront" the recurring puzzle of how
- constitutional provisions written two centuries ago should be
- construed and applied in ever-changing circumstances.
- Should contemporary society's technology-driven cost-benefit
- fixation be allowed to water down the old-fashioned value of direct
- confrontation that the Constitution seemingly enshrined as basic?
- I would hope not. In that respect, I find myself in complete
- agreement with Justice Scalia.
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- But new technological possibilities for seeing your accuser
- clearly without having your accuser see you at all -- possibilities
- for sparing the accuser any discomfort in ways that the accuser
- couldn't be spared before one-way mirrors or closed-circuit TVs
- were developed -- *should* lead us at least to ask ourselves whether
- *two*-way confrontation, in which your accuser is supposed to be made
- uncomfortable, and thus less likely to lie, really *is* the core
- value of the Confrontation Clause. If so, "virtual" confrontation
- should be held constitutionally insufficient. If not -- if the
- core value served by the Confrontation Clause is just the ability
- to *watch* your accuser say that you did it -- then "virtual"
- confrontation should suffice. New technologies should lead us to
- look more closely at just *what values* the Constitution seeks to
- preserve. New technologies should *not* lead us to react reflexively
- *either way* -- either by assuming that technologies the Framers
- didn't know about make their concerns and values obsolete, or by
- assuming that those new technologies couldn't possibly provide new
- ways out of old dilemmas and therefore should be ignored
- altogether.
- The one-way mirror yields a fitting metaphor for the task we
- confront. As the Supreme Court said in a different context several
- years ago, "The mirror image presented [here] requires us to step
- through an analytical looking glass to resolve it." (*NCAA v.
- Tarkanian*, 109 S. Ct. at 462.) The world in which the Sixth
- Amendment's Confrontation Clause was written and ratified was a
- world in which "being confronted with" your accuser *necessarily*
- meant a simultaneous physical confrontation so that your accuser
- had to *perceive* you being accused by him. Closed-circuit
- television and one-way mirrors changed all that by *decoupling* those
- two dimensions of confrontation, marking a shift in the conditions of
- information-transfer that is in many ways typical of cyberspace.
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- What does that sort of shift mean for constitutional analysis?
- A common way to react is to treat the pattern as it existed *prior*
- to the new technology (the pattern in which doing "A" necessarily
- *included* doing "B") as essentially arbitrary or accidental. Taking
- this approach, once the technological change makes it possible to
- do "A" *without* "B" -- to see your accuser without having him or her
- see you, or to read someone's mail without her knowing it, to
- switch examples -- one concludes that the "old" Constitution's
- inclusion of "B" is irrelevant; one concludes that it is enough for
- the government to guarantee "A" alone. Sometimes that will be the
- case; but it's vital to understand that, sometimes, it won't be.
- A characteristic feature of modernity is the subordination of
- purpose to accident -- an acute appreciation of just how contingent
- and coincidental the connections we are taught to make often are.
- We understand, as moderns, that many of the ways we carve up and
- organize the world reflect what our social history and cultural
- heritage, and perhaps our neurological wiring, bring to the world,
- and not some irreducible "way things are." A wonderful example
- comes from a 1966 essay by Jorge Louis Borges, "Other
- Inquisitions." There, the essayist describes the following
- taxonomy of the animal kingdom, which he purports to trace to an
- ancient Chinese encyclopedia entitled *The Celestial Emporium of
- Benevolent Knowledge*:
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- On those remote pages it is written that animals are
- divided into:
- (a) those belonging to the Emperor
- (b) those that are embalmed
- (c) those that are trained
- (d) suckling pigs
- (e) mermaids
- (f) fabulous ones
- (g) stray dogs
- (h) those that are included in this classification
- (i) those that tremble as if they were mad
- (j) innumerable ones
- (k) those drawn with a very fine camel's hair brush
- (l) others
- (m) those that have just broken a water pitcher
- (n) those that, from a great distance, resemble flies
- Contemporary writers from Michel Foucault, in *The Archaeology
- of Knowledge*, through George Lakoff, in *Women, Fire, and Dangerous
- Things*, use Borges' Chinese encyclopedia to illustrate a range of
- different propositions, but the *core* proposition is the supposed
- arbitrariness -- the political character, in a sense -- of all
- culturally imposed categories.
- At one level, that proposition expresses a profound truth and
- may encourage humility by combating cultural imperialism. At
- another level, though, the proposition tells a dangerous lie: it
- suggests that we have descended into the nihilism that so obsessed
- Nietzsche and other thinkers -- a world where *everything* is
- relative, all lines are up for grabs, all principles and
- connections are just matters of purely subjective preference or,
- worse still, arbitrary convention. Whether we believe that killing
- animals for food is wrong, for example, becomes a question
- indistinguishable from whether we happen to enjoy eating beans,
- rice and tofu.
- This is a particularly pernicious notion in a era when we pass
- more and more of our lives in cyberspace, a place where, almost by
- definition, our most familiar landmarks are rearranged or disappear
- altogether -- because there is a pervasive tendency, even (and
- perhaps especially) among the most enlightened, to forget that the
- human values and ideals to which we commit ourselves may indeed be
- universal and need not depend on how our particular cultures, or
- our latest technologies, carve up the universe we inhabit. It was
- my very wise colleague from Yale, the late Art Leff, who once
- observed that, even in a world without an agreed-upon God, we can
- still agree -- even if we can't "prove" mathematically -- that
- "napalming babies is wrong."
- The Constitution's core values, I'm convinced, need not be
- transmogrified, or metamorphosed into oblivion, in the dim recesses
- of cyberspace. But to say that they *need* not be lost there is
- hardly to predict that they *will* not be. On the contrary, without
- further thought and awareness of the kind this conference might
- provide, the danger is clear and present that they *will* be.
- The "event horizon" against which this transformation might
- occur is already plainly visible:
- Electronic trespassers like Kevin Mitnik don't stop with
- cracking pay phones, but break into NORAD -- the North American
- Defense Command computer in Colorado Springs -- not in a *WarGames*
- movie, but in real life.
- Less challenging to national security but more ubiquitously
- threatening, computer crackers download everyman's credit history
- >from institutions like TRW; start charging phone calls (and more)
- to everyman's number; set loose "worm" programs that shut down
- thousands of linked computers; and spread "computer viruses"
- through everyman's work or home PC.
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- It is not only the government that feels threatened by
- "computer crime"; both the owners and the users of private
- information services, computer bulletin boards, gateways, and
- networks feel equally vulnerable to this new breed of invisible
- trespasser. The response from the many who sense danger has been
- swift, and often brutal, as a few examples illustrate.
- Last March, U.S. Secret Service agents staged a surprise raid
- on Steve Jackson Games, a small games manufacturer in
- Austin, Texas, and seized all paper and electronic drafts of its
- newest fantasy role-playing game, *GURPS[reg.t.m.] Cyberpunk*,
- calling the game a "handbook for computer crime."
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- By last Spring, up to one quarter of the U.S. Treasury
- Department's investigators had become involved in a project of
- eavesdropping on computer bulletin boards, apparently tracking
- notorious hackers like "Acid Phreak" and "Phiber Optik" through
- what one journalist dubbed "the dark canyons of cyberspace."
- Last May, in the now famous (or infamous) "Operation Sun Devil,"
- more than 150 secret service agents teamed up with state
- and local law enforcement agencies, and with security personnel
- >from AT&T, American Express, U.S. Sprint, and a number of the
- regional Bell telephone companies, armed themselves with over two
- dozen search warrants and more than a few guns, and seized 42
- computers and 23,000 floppy discs in 14 cities from New York to
- Texas. Their target: a loose-knit group of people in their teens
- and twenties, dubbed the "Legion of Doom."
- I am not describing an Indiana Jones movie. I'm talking about
- America in the 1990s.
- The Problem
- The Constitution's architecture can too easily come to seem
- quaintly irrelevant, or at least impossible to take very seriously,
- in the world as reconstituted by the microchip. I propose today to
- canvass five axioms of our constitutional law -- five basic
- assumptions that I believe shape the way American constitutional
- scholars and judges view legal issues -- and to examine how they
- can adapt to the cyberspace age. My conclusion (and I will try not
- to give away too much of the punch line here) is that the Framers
- of our Constitution were very wise indeed. They bequeathed us a
- framework for all seasons, a truly astonishing document whose
- principles are suitable for all times and all technological
- landscapes.
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- Axiom 1:
- There is a Vital Difference
- *Between Government and Private Action*
- The first axiom I will discuss is the proposition that the
- Constitution, with the sole exception of the Thirteenth Amendment
- prohibiting slavery, regulates action by the *government* rather than
- the conduct of *private* individuals and groups. In an article I
- wrote in the Harvard Law Review in November 1989 on "The Curvature
- of Constitutional Space," I discussed the Constitution's
- metaphor-morphosis from a Newtonian to an Einsteinian and
- Heisenbergian paradigm. It was common, early in our history, to
- see the Constitution as "Newtonian in design with its carefully
- counterpoised forces and counterforces, its [geographical and
- institutional] checks and balances." (103 *Harv. L. Rev.* at 3.)
- Indeed, in many ways contemporary constitutional law is still
- trapped within and stunted by that paradigm. But today at least
- some post-modern constitutionalists tend to think and talk in the
- language of relativity, quantum mechanics, and chaos theory. This
- may quite naturally suggest to some observers that the
- Constitution's basic strategy of decentralizing and diffusing power
- by constraining and fragmenting governmental authority in
- particular has been rendered obsolete.
- The institutional separation of powers among the three federal
- branches of government, the geographical division of authority
- between the federal government and the fifty state governments, the
- recognition of national boundaries, and, above all, the sharp
- distinction between the public and private spheres, become easy to
- deride as relics of a simpler, pre-computer age. Thus Eli Noam, in
- the First Ithiel de Sola Pool Memorial Lecture, delivered last
- October at MIT, notes that computer networks and network
- associations acquire quasi-governmental powers as they necessarily
- take on such tasks as mediating their members' conflicting
- interests, establishing cost shares, creating their own rules of
- admission and access and expulsion, even establishing their own *de
- facto* taxing mechanisms. In Professor Noam's words, "networks
- become political entities," global nets that respect no state or
- local boundaries. Restrictions on the use of information in one
- country (to protect privacy, for example) tend to lead to export of
- that information to other countries, where it can be analyzed and
- then used on a selective basis in the country attempting to
- restrict it. "Data havens" reminiscent of the role played by the
- Swiss in banking may emerge, with few restrictions on the storage
- and manipulation of information.
- A tempting conclusion is that, to protect the free speech and
- other rights of *users* in such private networks, judges must treat
- these networks not as associations that have rights of their own
- *against* the government but as virtual "governments" in themselves
- -- as entities against which individual rights must be defended in
- the Constitution's name. Such a conclusion would be misleadingly
- simplistic. There are circumstances, of course, when
- non-governmental bodies like privately owned "company towns" or
- even huge shopping malls should be subjected to legislative and
- administrative controls by democratically accountable entities, or
- even to judicial controls as though they were arms of the state --
- but that may be as true (or as false) of multinational corporations
- or foundations, or transnational religious organizations, or even
- small-town communities, as it is of computer-mediated networks.
- It's a fallacy to suppose that, just because a computer bulletin
- board or network or gateway is *something like* a shopping mall,
- government has as much constitutional duty -- or even authority --
- to guarantee open public access to such a network as it has to
- guarantee open public access to a privately owned shopping center
- like the one involved in the U.S. Supreme Court's famous *PruneYard
- Shopping Center* decision of 1980, arising from nearby San Jose.
- The rules of law, both statutory and judge-made, through which
- each state *allocates* private powers and responsibilities themselves
- represent characteristic forms of government action. That's why a
- state's rules for imposing liability on private publishers, or for
- deciding which private contracts to enforce and which ones to
- invalidate, are all subject to scrutiny for their consistency with
- the federal Constitution. But as a general proposition it is only
- what *governments* do, either through such rules or through the
- actions of public officials, that the United States Constitution
- constrains. And nothing about any new technology suddenly erases
- the Constitution's enduring value of restraining *government* above
- all else, and of protecting all private groups, large and small,
- >from government.
- It's true that certain technologies may become socially
- indispensable -- so that equal or at least minimal access to basic
- computer power, for example, might be as significant a
- constitutional goal as equal or at least minimal access to the
- franchise, or to dispute resolution through the judicial system,
- or to elementary and secondary education. But all this means (or
- should mean) is that the Constitution's constraints on government
- must at times take the form of imposing *affirmative duties* to
- assure access rather than merely enforcing *negative prohibitions*
- against designated sorts of invasion or intrusion.
- Today, for example, the government is under an affirmative
- obligation to open up criminal trials to the press and the public,
- at least where there has not been a particularized finding that
- such openness would disrupt the proceedings. The government is
- also under an affirmative obligation to provide free legal
- assistance for indigent criminal defendants, to assure speedy
- trials, to underwrite the cost of counting ballots at election
- time, and to desegregate previously segregated school systems. But
- these occasional affirmative obligations don't, or shouldn't, mean
- that the Constitution's axiomatic division between the realm of
- public power and the realm of private life should be jettisoned.
- Nor would the "indispensability" of information technologies
- provide a license for government to impose strict content, access,
- pricing, and other types of regulation. *Books* are indispensable to
- most of us, for example -- but it doesn't follow that government
- should therefore be able to regulate the content of what goes onto
- the shelves of *bookstores*. The right of a private bookstore owner
- to decide which books to stock and which to discard, which books to
- display openly and which to store in limited access areas, should
- remain inviolate. And note, incidentally, that this needn't make
- the bookstore owner a "publisher" who is liable for the words
- printed in the books on her shelves. It's a common fallacy to
- imagine that the moment a computer gateway or bulletin board begins
- to exercise powers of selection to control who may be on line, it
- must automatically assume the responsibilities of a newscaster, a
- broadcaster, or an author. For computer gateways and bulletin
- boards are really the "bookstores" of cyberspace; most of them
- organize and present information in a computer format, rather than
- generating more information content of their own.
- Axiom 2:
- The Constitutional Boundaries of Private Property
- and Personality Depend on Variables Deeper Than
- *Social Utility and Technological Feasibility*
- The second constitutional axiom, one closely related to the
- private-public distinction of the first axiom, is that a person's
- mind, body, and property belong *to that person* and not to the
- public as a whole. Some believe that cyberspace challenges that
- axiom because its entire premise lies in the existence of computers
- tied to electronic transmission networks that process digital
- information. Because such information can be easily replicated in
- series of "1"s and "0"s, anything that anyone has come up with in
- virtual reality can be infinitely reproduced. I can log on to a
- computer library, copy a "virtual book" to my computer disk, and
- send a copy to your computer without creating a gap on anyone's
- bookshelf. The same is true of valuable computer programs, costing
- hundreds of dollars, creating serious piracy problems. This
- feature leads some, like Richard Stallman of the Free Software
- Foundation, to argue that in cyberspace everything should be free
- -- that information can't be owned. Others, of course, argue that
- copyright and patent protections of various kinds are needed in
- order for there to be incentives to create "cyberspace property" in
- the first place.
- Needless to say, there are lively debates about what the
- optimal incentive package should be as a matter of legislative and
- social policy. But the only *constitutional* issue, at bottom, isn't
- the utilitarian or instrumental selection of an optimal policy.
- Social judgments about what ought to be subject to individual
- appropriation, in the sense used by John Locke and Robert Nozick,
- and what ought to remain in the open public domain, are first and
- foremost *political* decisions.
- To be sure, there are some constitutional constraints on these
- political decisions. The Constitution does not permit anything and
- everything to be made into a *private commodity*. Votes, for
- example, theoretically cannot be bought and sold. Whether the
- Constitution itself should be read (or amended) so as to permit all
- basic medical care, shelter, nutrition, legal assistance and,
- indeed, computerized information services, to be treated as mere
- commodities, available only to the highest bidder, are all terribly
- hard questions -- as the Eastern Europeans are now discovering as
- they attempt to draft their own constitutions. But these are not
- questions that should ever be confused with issues of what is
- technologically possible, about what is realistically enforceable,
- or about what is socially desirable.
- Similarly, the Constitution does not permit anything and
- everything to be *socialized* and made into a public good available
- to whoever needs or "deserves" it most. I would hope, for example,
- that the government could not use its powers of eminent domain to
- "take" live body parts like eyes or kidneys or brain tissue for
- those who need transplants and would be expected to lead
- particularly productive lives. In any event, I feel certain that
- whatever constitutional right each of us has to inhabit his or her
- own body and to hold onto his or her own thoughts and creations
- should not depend solely on cost-benefit calculations, or on the
- availability of technological methods for painlessly effecting
- transfers or for creating good artificial substitutes.
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- Axiom 3:
- *Government May Not Control Information Content*
- A third constitutional axiom, like the first two, reflects a
- deep respect for the integrity of each individual and a healthy
- skepticism toward government. The axiom is that, although
- information and ideas have real effects in the social world, it's
- not up to government to pick and choose for us in terms of the
- *content* of that information or the *value* of those ideas.
- This notion is sometimes mistakenly reduced to the naive
- child's ditty that "sticks and stones may break my bones, but words
- can never hurt me." Anybody who's ever been called something awful
- by children in a schoolyard knows better than to believe any such
- thing. The real basis for First Amendment values isn't the false
- premise that information and ideas have no real impact, but the
- belief that information and ideas are *too important* to entrust to
- any government censor or overseer.
- If we keep that in mind, and *only* if we keep that in mind,
- will we be able to see through the tempting argument that, in the
- Information Age, free speech is a luxury we can no longer afford.
- That argument becomes especially tempting in the context of
- cyberspace, where sequences of "0"s and "1"s may become virtual
- life forms. Computer "viruses" roam the information nets,
- attaching themselves to various programs and screwing up computer
- facilities. Creation of a computer virus involves writing a
- program; the program then replicates itself and mutates. The
- electronic code involved is very much like DNA. If information
- content is "speech," and if the First Amendment is to apply in
- cyberspace, then mustn't these viruses be "speech" -- and mustn't
- their writing and dissemination be constitutionally protected? To
- avoid that nightmarish outcome, mustn't we say that the First
- Amendment is *inapplicable* to cyberspace?
- The answer is no. Speech is protected, but deliberately
- yelling "Boo!" at a cardiac patient may still be prosecuted as
- murder. Free speech is a constitutional right, but handing a bank
- teller a hold-up note that says, "Your money or your life," may
- still be punished as robbery. Stealing someone's diary may be
- punished as theft -- even if you intend to publish it in book form.
- And the Supreme Court, over the past fifteen years, has gradually
- brought advertising within the ambit of protected expression
- without preventing the government from protecting consumers from
- deceptive advertising. The lesson, in short, is that
- constitutional principles are subtle enough to bend to such
- concerns. They needn't be broken or tossed out.
- Axiom 4:
- The Constitution is Founded on Normative
- Conceptions of Humanity That Advances
- *in Science and Technology Cannot "Disprove"*
- A fourth constitutional axiom is that the human spirit is
- something beyond a physical information processor. That axiom,
- which regards human thought processes as not fully reducible to the
- operations of a computer program, however complex, must not be
- confused with the silly view that, because computer operations
- involve nothing more than the manipulation of "on" and "off" states
- of myriad microchips, it somehow follows that government control or
- outright seizure of computers and computer programs threatens no
- First Amendment rights because human thought processes are not
- directly involved. To say that would be like saying that
- government confiscation of a newspaper's printing press and
- tomorrow morning's copy has nothing to do with speech but involves
- only a taking of metal, paper, and ink. Particularly if the seizure
- or the regulation is triggered by the content of the information
- being processed or transmitted, the First Amendment is of course
- fully involved. Yet this recognition that information processing
- by computer entails something far beyond the mere sequencing of
- mechanical or chemical steps still leaves a potential gap between
- what computers can do internally and in communication with one
- another -- and what goes on within and between human minds. It is
- that gap to which this fourth axiom is addressed; the very
- existence of any such gap is, as I'm sure you know, a matter of
- considerable controversy.
- What if people like the mathematician and physicist Roger
- Penrose, author of *The Emperor's New Mind*, are wrong about human
- minds? In that provocative recent book, Penrose disagrees with
- those Artificial Intelligence, or AI, gurus who insist that it's
- only a matter of time until human thought and feeling can be
- perfectly simulated or even replicated by a series of purely
- physical operations -- that it's all just neurons firing and
- neurotransmitters flowing, all subject to perfect modeling in
- suitable computer systems. Would an adherent of that AI orthodoxy,
- someone whom Penrose fails to persuade, have to reject as
- irrelevant for cyberspace those constitutional protections that
- rest on the anti-AI premise that minds are *not* reducible to really
- fancy computers?
- Consider, for example, the Fifth Amendment, which provides
- that "no person shall be . . . compelled in any criminal case to
- be a witness against himself." The Supreme Court has long held
- that suspects may be required, despite this protection, to provide
- evidence that is not "testimonial" in nature -- blood samples, for
- instance, or even exemplars of one's handwriting or voice. Last
- year, in a case called *Pennsylvania v. Muniz*, the Supreme Court
- held that answers to even simple questions like "When was your
- sixth birthday?" are testimonial because such a question, however
- straightforward, nevertheless calls for the product of mental
- activity and therefore uses the suspect's mind against him. But
- what if science could eventually describe thinking as a process no
- more complex than, say, riding a bike or digesting a meal? Might
- the progress of neurobiology and computer science eventually
- overthrow the premises of the *Muniz* decision?
- I would hope not. For the Constitution's premises, properly
- understood, are *normative* rather than *descriptive*. The philosopher
- David Hume was right in teaching that no "ought" can ever be
- logically derived from an "is." If we should ever abandon the
- Constitution's protection for the distinctively and universally
- human, it won't be because robotics or genetic engineering or
- computer science have led us to deeper truths, but rather because
- they have seduced us into more profound confusions. Science and
- technology open options, create possibilities, suggest
- incompatibilities, generate threats. They do not alter what is
- "right" or what is "wrong." The fact that those notions are
- elusive and subject to endless debate need not make them totally
- contingent on contemporary technology.
- Axiom 5:
- Constitutional Principles Should Not
- *Vary With Accidents of Technology*
- In a sense, that's the fifth and final constitutional axiom I
- would urge upon this gathering: that the Constitution's norms, at
- their deepest level, must be invariant under merely *technological*
- transformations. Our constitutional law evolves through judicial
- interpretation, case by case, in a process of reasoning by analogy
- >from precedent. At its best, that process is ideally suited to
- seeing beneath the surface and extracting deeper principles from
- prior decisions. At its worst, though, the same process can get
- bogged down in superficial aspects of preexisting examples,
- fixating upon unessential features while overlooking underlying
- principles and values.
- When the Supreme Court in 1928 first confronted wiretapping
- and held in *Olmstead v. United States* that such wiretapping
- involved no "search" or "seizure" within the meaning of the Fourth
- Amendment's prohibition of "unreasonable searches and seizures,"
- the majority of the Court reasoned that the Fourth Amendment
- "itself shows that the search is to be of material things -- the
- person, the house, his papers or his effects," and said that "there
- was no searching" when a suspect's phone was tapped because the
- Constitution's language "cannot be extended and expanded to include
- telephone wires reaching to the whole world from the defendant's
- house or office." After all, said the Court, the intervening wires
- "are not part of his house or office any more than are the highways
- along which they are stretched." Even to a law student in the
- 1960s, as you might imagine, that "reasoning" seemed amazingly
- artificial. Yet the *Olmstead* doctrine still survived.
- It would be illuminating at this point to compare the Supreme
- Court's initial reaction to new technology in *Olmstead* with its
- initial reaction to new technology in *Maryland v. Craig*, the 1990
- closed-circuit television case with which we began this discussion.
- In *Craig*, a majority of the Justices assumed that, when the 18th-
- century Framers of the Confrontation Clause included a guarantee of
- two-way *physical* confrontation, they did so solely because it had
- not yet become technologically feasible for the accused to look his
- accuser in the eye without having the accuser simultaneously watch
- the accused. Given that this technological obstacle has been
- removed, the majority assumed, one-way confrontation is now
- sufficient. It is enough that the accused not be subject to
- criminal conviction on the basis of statements made outside his
- presence.
- In *Olmstead*, a majority of the Justices assumed that, when the
- 18th-century authors of the Fourth Amendment used language that
- sounded "physical" in guaranteeing against invasions of a person's
- dwelling or possessions, they did so not solely because *physical*
- invasions were at that time the only serious threats to personal
- privacy, but for the separate and distinct reason that *intangible*
- invasions simply would not threaten any relevant dimension of
- Fourth Amendment privacy.
- In a sense, *Olmstead* mindlessly read a new technology *out* of
- the Constitution, while *Craig* absent-mindedly read a new technology
- *into* the Constitution. But both decisions -- *Olmstead* and *Craig* --
- had the structural effect of withholding the protections of the
- Bill of Rights from threats made possible by new information
- technologies. *Olmstead* did so by implausibly reading the
- Constitution's text as though it represented a deliberate decision
- not to extend protection to threats that 18th-century thinkers
- simply had not foreseen. *Craig* did so by somewhat more plausibly
- -- but still unthinkingly -- treating the Constitution's seemingly
- explicit coupling of two analytically distinct protections as
- reflecting a failure of technological foresight and imagination,
- rather than a deliberate value choice.
- The *Craig* majority's approach appears to have been driven in
- part by an understandable sense of how a new information technology
- could directly protect a particularly sympathetic group, abused
- children, from a traumatic trial experience. The *Olmstead*
- majority's approach probably reflected both an exaggerated estimate
- of how difficult it would be to obtain wiretapping warrants even
- where fully justified, and an insufficient sense of how a new
- information technology could directly threaten all of us. Although
- both *Craig* and *Olmstead* reveal an inadequate consciousness about
- how new technologies interact with old values, *Craig* at least seems
- defensible even if misguided, while *Olmstead* seems just plain
- wrong.
- Around 23 years ago, as a then-recent law school graduate
- serving as law clerk to Supreme Court Justice Potter Stewart, I
- found myself working on a case involving the government's
- electronic surveillance of a suspected criminal -- in the form of
- a tiny device attached to the outside of a public telephone booth.
- Because the invasion of the suspect's privacy was accomplished
- without physical trespass into a "constitutionally protected area,"
- the Federal Government argued, relying on *Olmstead*, that there had
- been no "search" or "seizure," and therefore that the Fourth
- Amendment "right of the people to be secure in their persons,
- houses, papers, and effects, against unreasonable searches and
- seizures," simply did not apply.
- At first, there were only four votes to overrule *Olmstead* and
- to hold the Fourth Amendment applicable to wiretapping and
- electronic eavesdropping. I'm proud to say that, as a 26-year-old
- kid, I had at least a little bit to do with changing that number
- >from four to seven -- and with the argument, formally adopted by a
- seven-Justice majority in December 1967, that the Fourth Amendment
- "protects people, not places." (389 U.S. at 351.) In that
- decision, *Katz v. United States*, the Supreme Court finally
- repudiated *Olmstead* and the many decisions that had relied upon it
- and reasoned that, given the role of electronic telecommunications
- in modern life, the First Amendment purposes of protecting *free
- speech* as well as the Fourth Amendment purposes of protecting
- *privacy* require treating as a "search" any invasion of a person's
- confidential telephone communications, with or without physical
- trespass.
- Sadly, nine years later, in *Smith v. Maryland*, the Supreme
- Court retreated from the *Katz* principle by holding that no search
- occurs and therefore no warrant is needed when police, with the
- assistance of the telephone company, make use of a "pen register",
- a mechanical device placed on someone's phone line that records all
- numbers dialed from the phone and the times of dialing. The
- Supreme Court, over the dissents of Justices Stewart, Brennan, and
- Marshall, found no legitimate expectation of privacy in the numbers
- dialed, reasoning that the digits one dials are routinely recorded
- by the phone company for billing purposes. As Justice Stewart, the
- author of *Katz*, aptly pointed out, "that observation no more than
- describes the basic nature of telephone calls . . . . It is simply
- not enough to say, after *Katz*, that there is no legitimate
- expectation of privacy in the numbers dialed because the caller
- assumes the risk that the telephone company will expose them to the
- police." (442 U.S. at 746-747.) Today, the logic of *Smith* is
- being used to say that people have no expectation of privacy when
- they use their cordless telephones since they know or should know
- that radio waves can be easily monitored!
- It is easy to be pessimistic about the way in which the
- Supreme Court has reacted to technological change. In many
- respects, *Smith* is unfortunately more typical than *Katz* of the way
- the Court has behaved. For example, when movies were invented, and
- for several decades thereafter, the Court held that movie
- exhibitions were not entitled to First Amendment protection. When
- community access cable TV was born, the Court hindered municipal
- attempts to provide it at low cost by holding that rules requiring
- landlords to install small cable boxes on their apartment buildings
- amounted to a compensable taking of property. And in *Red Lion v.
- FCC*, decided twenty-two years ago but still not repudiated today,
- the Court ratified government control of TV and radio broadcast
- content with the dubious logic that the scarcity of the
- electromagnetic spectrum justified not merely government policies
- to auction off, randomly allocate, or otherwise ration the spectrum
- according to neutral rules, but also much more intrusive and
- content-based government regulation in the form of the so-called
- "fairness doctrine."
- Although the Supreme Court and the lower federal courts have
- taken a somewhat more enlightened approach in dealing with cable
- television, these decisions for the most part reveal a curious
- judicial blindness, as if the Constitution had to be reinvented
- with the birth of each new technology. Judges interpreting a late
- 18th century Bill of Rights tend to forget that, unless its *terms*
- are read in an evolving and dynamic way, its *values* will lose even
- the *static* protection they once enjoyed. Ironically, *fidelity* to
- original values requires *flexibility* of textual interpretation. It
- was Judge Robert Bork, not famous for his flexibility, who once
- urged this enlightened view upon then Judge (now Justice) Scalia,
- when the two of them sat as colleagues on the U.S. Court of Appeals
- for the D.C. Circuit.
- Judicial error in this field tends to take the form of saying
- that, by using modern technology ranging from the telephone to the
- television to computers, we "assume the risk." But that typically
- begs the question. Justice Harlan, in a dissent penned two decades
- ago, wrote: "Since it is the task of the law to form and project,
- as well as mirror and reflect, we should not . . . merely recite .
- . . risks without examining the *desirability* of saddling them upon
- society." (*United States v. White*, 401 U.S. at 786). And, I would
- add, we should not merely recite risks without examining how
- imposing those risks comports with the Constitution's fundamental
- values of *freedom*, *privacy*, and *equality*.
- Failing to examine just that issue is the basic error I
- believe federal courts and Congress have made:
- * in regulating radio and TV broadcasting without
- adequate sensitivity to First Amendment values;
- * in supposing that the selection and editing of
- video programs by cable operators might be less
- than a form of expression;
- * in excluding telephone companies from cable and
- other information markets;
- * in assuming that the processing of "O"s and "1"s
- by computers as they exchange data with one
- another is something less than "speech"; and
- * in generally treating information processed
- electronically as though it were somehow less
- entitled to protection for that reason.
- The lesson to be learned is that these choices and these
- mistakes are not dictated by the Constitution. They are decisions
- for us to make in interpreting that majestic charter, and in
- implementing the principles that the Constitution establishes.
- *Conclusion*
- If my own life as a lawyer and legal scholar could leave just
- one legacy, I'd like it to be the recognition that the Constitution
- *as a whole* "protects people, not places." If that is to come
- about, the Constitution as a whole must be read through a
- technologically transparent lens. That is, we must embrace, as a
- rule of construction or interpretation, a principle one might call
- the "cyberspace corollary." It would make a suitable
- Twenty-seventh Amendment to the Constitution, one befitting the
- 200th anniversary of the Bill of Rights. Whether adopted all at
- once as a constitutional amendment, or accepted gradually as a
- principle of interpretation that I believe should obtain even
- without any formal change in the Constitution's language, the
- corollary I would propose would do for *technology* in 1991 what I
- believe the Constitution's Ninth Amendment, adopted in 1791, was
- meant to do for *text*.
- The Ninth Amendment says: "The enumeration in the
- Constitution, of certain rights, shall not be construed to deny or
- disparage others retained by the people." That amendment provides
- added support for the long-debated, but now largely accepted,
- "right of privacy" that the Supreme Court recognized in such
- decisions as the famous birth control case of 1965, *Griswold v.
- Connecticut*. The Ninth Amendment's simple message is: The *text*
- used by the Constitution's authors and ratifiers does not exhaust
- the values our Constitution recognizes. Perhaps a Twenty-seventh
- Amendment could convey a parallel and equally simple message: The
- *technologies* familiar to the Constitution's authors and ratifiers
- similarly do not exhaust the *threats* against which the
- Constitution's core values must be protected.
- The most recent amendment, the twenty-sixth, adopted in 1971,
- extended the vote to 18-year-olds. It would be fitting, in a world
- where youth has been enfranchised, for a twenty-seventh amendment
- to spell a kind of "childhood's end" for constitutional law. The
- Twenty-seventh Amendment, to be proposed for at least serious
- debate in 1991, would read simply:
- "This Constitution's protections for the freedoms of
- speech, press, petition, and assembly, and its
- protections against unreasonable searches and seizures
- and the deprivation of life, liberty, or property without
- due process of law, shall be construed as fully
- applicable without regard to the technological method or
- medium through which information content is generated,
- stored, altered, transmitted, or controlled."
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