Thursday, January 12, 2012

Constitution 3.0: Feedom and Technological Change / Jeffrey Rosen and Benjamin Wittes, eds. -- Washington D.C.: Brookings Institution Press, 2011

In 1928, the U.S. Supreme Court handed down a ruling in Olmstead v United States, a case arising out of the new wiretapping technology available to law enforcement. Attorneys for Olmstead argued that a government wiretap violated Olmstead's Fourth Amendment right to be secure against unreasonable searches and seizures, but 5-4 majority of the Court found that as conversations were not tangible effects that could be searched or seized and as the government had not trespassed on Olmstead's property in placing the wiretap, no violation of the Fourth Amendment had occurred.

In contrast, Justice Brandeis's dissent rested on the observation that phone conversations often contained more information than sealed letters and that as the Fourth Amendment's intent was to protect the privacy of citizens, the Court should find that phone conversations deserve the same protection as mailed correspondences. It is fair to say that Brandeis was reading beyond the simple words of the Fourth Amendment, but it is hard to argue that Court should not have done exactly this. Justice Butler explained why in his dissent, writing "this Court has always construed the Constitution in the light of the principles upon which it was founded. The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words."

The framers of the Constitution could not possibly have imagined the technological developments of the 20th century, and as these technologies directly bore on the values protected by the Fourth Amendment, the Supreme Court should have exercised its authority to interpret the Constitution and apply those values to present circumstances. The task of applying an 18th century document to unimaginable technologies has only become more problematic over the past fifteen years. Happily, Constitution 3.0 offers us a collection of essays exploring how emerging technologies might affect the core concepts in constitutional law, particularly how they might affect the interpretation of the First, Fourth, Fifth, and Fourteenth Amendments. The essays take up several rather narrow questions, but stand as a fine starting point for a longer discussion of the constitutional problems that 21st century technologies pose.

Constitution 3.0 is divided into four parts, covering surveillance and data mining, free expression and privacy, brain scan technologies, and genetic engineering. This review will only address parts one and two.

In Chapter Two, Christopher Slobogin observes that surveillance technology currently can track the public movements and record the on-going, daily activities of citizens. Such surveillance might not implicate the Fourth Amendment as it falls outside of the legal concept of a search. Slobogin argues that in response we must expand the concept of a search to reflect its ordinary language meaning and regulate government surveillance proportionate to its intrusiveness.

In Chapter Three, Orin S. Kerr responds to new surveillance technologies by noting that surveillance now involves a four stage process: evidence collection, data manipulation by a machine, disclosure to a person operating the surveillance program, and disclosure to the public. The "old law of surveillance" attempted to prevent the collection of evidence. Kerr argues that we should now be more concern about regulating each stage of the process as appropriate, particularly its dissemination, rather as the information collected by the I.R.S. is not available to the public.

In Chapter Four, Jack Goldsmith emphasizes the dangers to national security that new technologies pose and identifies numerous instances where unwarranted searches and invasive screening processes are permitted by the Court. While he recognizes that allowing unwarranted searches in a broader range of circumstance may seem unnecessary, he is concerned that "bits [of data] and strings [of code] can do, and are doing, enormous harm," thereby justifying "massive government snooping."

In Chapter Five, Jeffrey Rosen points out that more and more the questions of privacy and free speech are decided by private corporations, e.g., Facebook, Twitter, and Google. This poses a special problem for protecting Fourth Amendment values as the Amendment limits what governments actions and does not clearly reach private actors, particularly when the information gathered is voluntarily surrendered. Rosen suggests that technical solutions are available, but must be implemented by "regulators, legislators, technologists, and ultimately,...politically engaged citizens." We can not simply rely on the Court for relief.

In Chapter Six, Tim Wu describes two traditions of free speech. The first balances the value and significance of free expression against legitimate government interests. The second arose in the middle of the 20th century with the creation of an oligarchic national broadcasting system. The concern became finding ways in which more than a few voices could have a national audience. With the rise of the internet, it appears that this problem has been solved, but Wu points out that speakers are connected to their audiences by a small number of intermediaries, i.e., mainly, "Verizon, AT&T, the cable industry, and a handful of crucial switches, Google most obviously." Like Rosen, Wu is concerned about that constitutional issues are increasing implicating private actors and he is particularly concerned about the concentration of power within the sphere of private communications.

In Chapter Seven, Jonathan Zittrain discusses two problems arising from the concentration of content; (1) the potential that a private actor or government agency will effectively destroy unique content and denial-of-service attacks launched against particular content providers. He recommends in response a "mutual aid treaty for the internet," meaning that site operators would agree to download and store any page to which they link. If any of these sites suffer a denial-of-service attack, a version of the content that was most previously accessed could be displayed. While the downloaded pages might not be absolutely current, they would provide internet browsers with a reasonably up-to-date version of the content.

What is most interesting about these essays is that they grapple with values that often come into conflict: privacy and national security versus freedom of information and freedom of expression. These values have been in conflict since long before digital technology began changing our information environment, but the problems these conflicts pose have become far more profound. In the final essay, Lawrence Lessig points out that how future Courts will solve these problems will depend on a cultural climate that establishes unquestioned norms. Hence, the spread of private video recording devices and the willingness to participate in social media that record and disseminate personal information may make our concerns about privacy virtually vanish. It is through these changes in culture that the changes in technology will transform our Constitutional liberties.

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