"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
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?
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.
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.
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*:
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.
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."
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.
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.
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."