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

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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.]

"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

constitutional order that tends to carve up the social, legal, and

political universe along lines of "physical place" or "temporal

proximity." The critical thing to note is that these very lines, in

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."

[Note: The machine-readable original of this was provided by the

author on a PC diskette in WordPerfect. It was reformatted to

ASCII, appropriate for general network and computer access, by Jim Warren.

Text that was underlined or boldface in the original copy was delimited

by asterisks, and a registered trademark symbol was replaced by

"reg.t.m.". Other than that, the text was as provided by the author.]