Part One

Presenting the Future

Introduction

In Part One, Professor Rosen describes Constitution 3.0 and explains his contribution to it, including a discussion of “Open Planet”—24/7, world-wide video surveillance that may come to a computer near you sooner than you think.

Professor Jeffrey Rosen (JR)—We asked, in the book, a group of thought-leaders to imagine what the world would look like in the year 2035 and how it might be changed by technology and how law might evolve to preserve the same values that the Framers of the Constitution took for granted.

So, we have a range of fascinating essays trying to imagine the future of free speech; of privacy; of genetic engineering; designer babies; patenting human life; issues involving Internet governance and neuro-law. And, in each of these areas, people cast their minds forward a few decades, tried to imagine a concrete scenario in which current Constitutional values might be challenged and then proposed a range of solutions for dealing with that.

How did you decide what issues to include in Constitution 3.0?

To some degree, the subjects were determined by the interests of the participants. But, we had a broad sense, as we invited people, about what some of the areas we wanted to explore were.

Neuro-law was another. The ability to look inside people’s brains and ask them questions that lie detector tests in the past couldn’t begin to fathom and perhaps hold them accountable for their thoughts rather than their actions.

Questions involving free speech. In an age where Google now has more power over who can speak and who can be heard than any King or President or Supreme Court Justice.

Questions involving the future of criminal responsibility and so forth.

So, essentially, [co-editor Benjamin] Wittes and I just sat down and tried to imagine, between the two of us, what some of the interesting challenges might be and then choose people and invited them to let their imaginations run free.

Who writes in Constitution 3.0?

We choose a great group of people. It includes, writing about privacy, Christopher Slobogin who teaches at Vanderbilt [Law School]; Orin Kerr, my colleague here at [George Washington Law School]; and it also includes, for free speech, Tim Wu, from Columbia [Law School]. For neuro-law, [O.] Carter Snead, who’s at [University of Notre Dame Law School], and Stephen Morse at the University of Pennsylvania. We have Jamie Boyle [Duke University School of Law] imagining the future of copyright and efforts to patent human life. In terms of designer babies and genetic selection, we have John Robertson from the University of Texas [at Austin School of Law] and Robert George and Eric Cohen from Princeton. And our final essay comes from Lawrence Lessig [Harvard Law School], who is an Internet guru and tries to cast the whole book in a broader perspective and extract common themes among it.

What did you ask the authors to do?

We asked them to begin with a concrete scenario that the country might plausibly confront in the year 2035 and talk about how that scenario challenged current Constitutional values or doctrine and then try to imagine a solution to the challenge. And what was so striking is that the range of solutions people proposed. Some preferred judicial solutions and thought the Supreme Court should step in to protect Constitutional values. Others preferred legislative or administrative solutions. Still others emphasized the importance of political activism and the need for citizens to defend their own rights.

So, it was an ideologically diverse group. There was no consensus about the right way to go. And it was just striking how complex the solutions were and how many moving parts, how much interaction among various policymakers were often required to produce a good result.

Are the issues of the future already here?

It was striking how many of the respondents imagined a future that might plausibly take place not in the year 2025 but five years from now or even at the moment.

So, my scenario is an illustration of this.

I imagine that, in the year 2025, Facebook might be asked to put online all the public and private surveillance cameras that are now distributed throughout the world. And this is indeed is already happening. Facebook has an “app” where you can watch live beach cameras from Mexico, which are popular with teenage boys, for reasons you can imagine.

So, imagine that the beach cameras from Mexico are linked with the subway cameras from New York with the hospital cameras in London. These images are archived and stored. You can sign on to Facebook. Click on a picture of me, for example. Back-click on me to see where I coming from. Forward click on [me] to see where I’m going. And, basically have 24/7, ubiquitous surveillance of anyone in the system at any time.

The reason this isn’t Science Fiction is because I was at a conference at Google in 2007 and the public...the head of Public Policy at Google, who was then Andrew McLaughlin, said he imagined that within five years Google would be asked to do precisely this. So, that brings us to 2012. Presumably, there are already requests from the private and public sector to link and store cameras on-line. And, it really is just a matter of time before this scenario, which I called “Open Planet,” will actually confront us.

What are the legal issues with “Open Planet”?

That is the question. What is the problem? And is there a problem?

Remarkably, this is the very problem or question that the Supreme Court confronted recently in the Jones case—[United States v. Antoine Jones, 564 U.S. __ (2011)]—involving GPS [Global Positioning System] tracking. And that was a case involving a police officer who put a Global Positioning System device on the bottom of a suspect’s car without a valid Warrant and tracked his movements 24/7 for a month. And, he then sued and said, because there hadn’t been a valid Warrant, the search was unconstitutional and the evidence should be excluded.

Several lower courts and the Obama Administration took the position that we have no “expectation of privacy” in public and because it is theoretically possible for our neighbors to track us down the street or the cops to follow us for a hundred miles, therefore the police should be able to use technologies, like GPS devices, to achieve the same surveillance virtually rather than actually.

But, in a visionary decision, a remarkable decision, the Supreme Court unanimously disagreed. It repudiated the position that we have no expectation of privacy in public, although the Justices disagreed in important ways on the relevant reasoning. A majority of the Court joined Justice [Antonin] Scalia’s opinion essentially saying there was a physical trespass involved when the GPS device was placed on the bottom of the car that interfered with the suspects possessory interests and therefore a search did take place, although the Court didn’t say whether a Warrant was required in all cases.

But, four Justices were willing to go further. They said, repudiating the idea we have no expectation of privacy in public, they said there’s a huge difference between surveillance for a day and a month. And, although it’s theoretically possible for the cops to hire one thousand officers who could tail you from door to door, in practice that doesn’t happen because of limited resources and citizens don’t actually expect that they are going to be tailed door-to-door for a month because it doesn’t happen. And therefore, said Justice [Samuel A.] Alito, joined by three other Justices, a Warrant should be presumptively required for long-term surveillance—perhaps not for short-term surveillance, although the Justices refused to specify the precise point at which a Warrant might be required. They said, if you’re not sure, you should get a Warrant.

So, this obviously has direct and huge implications for Open Planet.

We now have four members of the Court—and really probably five because Justice Sonia Sotomayor wrote a Concurrence where she signaled a willingness to go further in some respects—have suggested that for long-term, ubiquitous surveillance of people, even in public places, a Warrant is presumptively required. And therefore, according to this reasoning, if Google and Facebook did link up the cameras and create an Open Planet system, the police could not track a particular individual over an extended period of time without a Warrant.

That appears to be the holding of Jones. And that seems to me a sensible result.

It’s intuitively clear that there’s a huge difference between what the police can learn about you when they follow you for a few minutes and what they can learn about you over the course of a month. The month-long surveillance reveals the newspapers we read, the people we associate with, the bars we visit, the private associations and feelings we have and to refuse to require a Warrant for that intrusive a search would give citizens less privacy in the Twenty-first century than they took for granted in the Eighteenth.

And that’s really the challenge I tried to confront in the chapter: How can we avoid allowing technology to erode privacy. And that’s why I’m so encouraged that the Supreme Court accepted this invitation.

—End of Part One—

Part Two

Public Private Law

Introduction

In Part Two, Professor Rosen discusses Constitutional law, the growing role private corporations play in affecting speech and privacy and how we might best protect our rights in a changing world.

With government surveillance, the Fourth Amendment governs. What Constitutional provision or other law affects private surveillance like “Open Planet”?

It is a crucial question: Is there a difference between surveillance by the police using government cameras and surveillance by fellow citizens on Google using the Google and Facebook platforms?

After all, the Fourth Amendment to the Constitution binds the government; it doesn’t bind Google. And if Mark Zuckerberg or the good people at Google decided to use their own servers to link up surveillance cameras, it might be argued that that’s not a Constitutional issue at all. Citizens are free to spy on each other using private technology without implicating the Constitution.

Now, it becomes more complicated when the government tries to use the system to conduct its own searches. And more complicated still when there’s a mix of public and private cameras. And, the Court would have to decide whether or not there is “state action” and so forth.

But, the difficulty of answering the question points to a theme that united many of the chapters of the book, which is the difficulty of thinking through Constitutional rights and liberties in an age when the great Internet Service Providers have more power over speech and privacy than the government does and yet they are not formally restricted by the U.S. Constitution.

Because they are.

No one can deny the fact that if you want to who determines who can speak and who can be heard today, it’s not the U.S. Supreme Court—Justice Scalia or Justice Alito. It’s the lawyers at Google. In particular, Google for a long time has had a particular lawyer—until not too long ago her name was Nicole Wong—and her colleagues actually called her “The Decider” because she was the one who was empowered to decide what stays up and what comes down, not only on Google.com but on each of the more than 140 search engines that Google does business with around the world—Google France and Google Germany—and also on YouTube, which Google owns.

So, Nicole Wong is the person who is woken up in the middle of the night when the Turkish government is complaining because Greek football fans are posting YouTube videos accusing Kemal Ataturk, the founder of modern Turkey, of being gay, which Greek football fans love to do to get a rise out of their opponents.

It’s illegal in Turkey to insult Ataturk. And, Nicole Wong, who has pledged to take down material that is clearly illegal under local laws, has to make a spot judgment at four in the morning: Is the material clearly illegal? It is protected political speech? Is it on the edge, in which case maybe she’ll leave it up? She doesn’t speak Turkish. This is only one of one hundred controversies bubbling up around the world.

The sheer scope of the responsibility helps to dramatize just how much power the Internet Service Providers have.

Has technology enhanced the role of private corporations in Free Speech and Privacy?

There is no question that corporations have had an important role in who can speak and who can be heard throughout American history. And, in fact, Tim Wu begins his chapter by imagining a situation in which Google decides to favor one Presidential candidate over another in a close race and uses its power over the Internet to insure his victory. And then, Tim Wu notes, this isn’t just a fantasy. In fact, in the Nineteenth Century, in the contested election of 1876, the Hayes-Tilden election, AT&T did allegedly use its power over the telegraphs to favor one candidate over another. So, no question that the risk that corporations can pose to Speech and Liberty, so memorably recognized by my hero, Justice Louis Brandeis, in his denunciation of the risks that bankers take with other people’s money and the “curse of bigness” that allowed concentrated corporate power to suppress liberty, this has existed throughout American history.

However, it’s also the case that today, now that so much more of our public life takes place on-line—obviously than it did before but now with most, much of our public life takes place on-line—we’re in a different situation than we were during World War One, when the quintessential example of speech suppression was the street corner speaker standing up in Hyde Park or on the Boston Common and denouncing World War One and then the government, under the Espionage Act, threatening the speaker, as it did Eugene V. Debs, the Socialist candidate for Vice President, who was imprisoned for his speech in a public meeting. Now, the Eugene V. Debs who’s making anti-war criticism is going to do it on-line, in blogs or on Facebook and that means...or on Twitter, certainly. And therefore, the question whether or not to let him speak in the first place or to try to censor him after he’s spoken will be made in the first instance by the Internet Service Providers not by the government and that technological shift has vastly increased their power over Speech and Privacy.

What is the difference between your appeal to the courts and Tim Wu’s appeal to government regulation to address private corporations affecting a Constitutional value?

I don’t think that Tim Wu and I disagree fundamentally that in some situations judicial resolution is appropriate and in some cases regulation is appropriate and in still others political activism is necessary. We just focused on different challenges.

So, I think that the courts are important as a back-stop. And, had they not stepped in in the Jones case to say that there’s some expectation of privacy against ubiquitous, long-term surveillance, then we would have had far less privacy today than the Framers took for granted. But, I don’t at all believe the Supreme Court is going to have the last word in these great Privacy debates, precisely because Google and Facebook have more power than the government about who can speak.

I agree with Tim Wu, that administrative regulations are going to be just as important as Constitutional doctrine, in particular anti-trust law. Are Google and Facebook having uncompetitive advantages by the scope of their control over Speech?

Or, to take a European example from just this week, should there be a legislative ‘Right to Be Forgotten’ on the Internet? That’s what the European data privacy commissioner, Viviane Reding, proposed just this week.

It’s extremely unclear what the scope of this right is. In it’s narrowest form, it seems to allow citizens to require people who hold data about them to delete that data when its no longer necessary. But, it becomes more controversial when it appears to give people the right to request the removal of pictures and items about themselves that have been widely shared. At that point, there’s an obvious clash with Free Speech.

So, to take one example, there was an Argentinian Pop star, Virginia da Cunha, who’d posed for racy pictures of herself. And then she grew up and she thought the better of it. And she asked Google and Yahoo to take the pictures down, even though they had been widely distributed.

They refused. They said they’re not, they don’t make content-based decisions and the pictures were out there too widely.

She persisted. She sued. An Argentinian court ruled with her, holding that her Dignitary Rights, embodied in a kind of Right to Be Forgotten, had been violated, ordered Google and Yahoo to take down the pictures. And, after being fined a lot of money, Yahoo said, ‘It’s too hard for us just to remove the dirty pictures, the racy pictures; we’re going to remove all references to this woman from the Yahoo search engine.’

So, this just shows how dramatically this Right to Be Forgotten allows you to delete your past selectively on the Internet.

American law would not strike that balance between Privacy and Free Speech. We generally hold that people cannot be restricted from sharing or publicizing truthful but embarrassing information about people. That’s what the Court has held repeatedly. So, I think we’re about to have a dramatic clash between Europe and America when it comes to the appropriate scope of regulation.

But that just shows that this is not a debate that comes from the Supreme Court or the European Constitutional courts. It comes from the European Union. Congress may reach a different balance. It is a legislative debate.

And then, finally, there’s a question of whether political activism is more important than legislation or judicial decisions in some areas. And here, I like very much the example of the triumph over the body scanners. It’s such an optimistic, happy story for Privacy advocates.

But this is the story of the Naked Machine versus the Blob Machine. Originally—2004—the Bush Administration was offered a choice between two designs of body scanners. One design revealed contraband and plastics under clothing but also showed graphic images of the naked body; another also revealed the place the contraband was located but scrambled the naked body into a modest and non-descript blob and basically just told the screeners where to look under clothing in secondary screening.

From a security point of view, this is a ‘no-brainer,’ as they say. The same amount of security: One grossly invades privacy; the other protects it.

However, the Bush Administration, the Homeland Security Department chose the Naked Machine over the Blob Machine. Their privacy officers didn’t require the less intrusive technology; they ignored evidence that neither machine was all that effective in detecting low-density chemical ETN powder, such as used by the Christmas Trouser Bomber. But, they reached a different conclusion than European airport authorities, most of whom rejected both machines but the handful of whom, the handful of European airports that chose these technologies insisted on the Blob over the Naked Machine.

So, why is this a happy story?

Because there was a political protest. It began with the clarion cry of the hero of naked body scanner movement, the guy who memorably exclaimed, “Don’t touch my junk!” That led other citizens to refuse to go through the machines, or to be patted down. And finally embarrassed by this citizen uprising, the Obama Administration instructed the Homeland Security Department to go back to the drawing board. And they were ‘Shocked. Shocked!’ to discover that in fact they could choose the very Blob Machine technology that they had refused to choose years earlier.

So, that reminds me—or, that illustrates for me the idea that we can’t rely on courts alone to protect Privacy nor on legislators. In the end, especially in some circumstances, citizens have to rise up and demand their own Privacy. And it is only by galvanized political activism can a good balance can be struck.

Might private corporations be more interested than government to protect our Privacy?

I am reluctant to generalize too much about the virtues of corporations versus the government. Each has its own interests that threaten and can protect Liberty in different ways.

So, there are certainly some areas where some corporations have an incentive to support transparency and open network rules. Network Neutrality is a good example of that. It’s certainly in the interests of Google and Facebook and the great ISPs to insure that particular applications can’t discriminate against their competitors and degrade or block any item or data. So, that’s why Google supported Net Neutrality.

But, it’s not—Net Neutrality is not in everyone’s interest. Comcast, the phone company, wanted to be able to block BitTorrent, which had a potential to compete with its own file-sharing service, and also to charge more money to particular applications that consume more bandwidth.

So, similarly in the debate over Internet piracy. I was struck by some of the techno-meliorism, the kind of powerful-versus-the-people rhetoric that seemed to pit the greedy old media companies in Hollywood who were trying to argue for enhanced copyright protection against the tribunes of the people at Google and Facebook who felt that information should be free.

It’s not that simple a story. In fact, although SOPA [Stop Online Piracy Act] itself was a very bad idea, and the structure of the Internet should not be changed in order to go after what’s ultimately a handful of really serious copyright-violating sites located abroad, who are better dealt with through a law enforcement approach such as we used against child pornography, nevertheless that’s not to say that Google wins and journalism and perhaps independent artists and filmmakers and musicians may lose when the business model that allow media companies to fund and to promote quality work evaporates.

So, yet again, you’ll find that some companies have more of an incentive for transparency and free information but that may not serve the public interest in all circumstances. Certainly, companies don’t have the same incentives that government does to keep information secret in the interests of National Security. Their interests are financial and proprietary. They want to protect their trade secrets.

But, we should never forget for a moment that Google and Facebook, as wonderful as they are and as much as we depend on them, are in the advertising business. Their business is to learn as much about us as possible so that they can sell, bombard us with ads that will track and follow us as precisely as possible across the entire range of platforms in which we interact. And the values of an advertising company are not the values of James Madison. They have different financial incentives. They need to be constrained in different ways. So, I’m not someone who believes that Liberty will flourish and secrecy will wither on the vine now that we have to be more concerned about the power of Google than the power of government.

—End of Part Two—

Part Three

Reasonable Tech-spectations

In Part Three, Professor Rosen discusses the effect technology is having on established legal understanding of the Fourth Amendment to the Constitution’s prohibition of “unreasonable searches and seizures,” crime and punishment and whether established Constitutional assumptions may not be in the Constitution after all.

Is technology upsetting a legal standard—'reasonable expectation of privacy'—we rely on to define a Constitutional protection—the Fourth Amendment’s prohibition of unreasonable search?

People have long criticized the ‘expectation of privacy’ doctrine for being circular. But, technology is making it even less satisfying.

So, the circularity is obvious in the fact that our expectations of privacy depend on the amount of surveillance and incursion that we actually experience. And, as technology makes those incursions more ubiquitous, our expectations diminish and there’s a corresponding diminution in Constitutional protections.

But, so that’s just to say that, in an age when, if the government were to set flying miniature robots in the air and take out ads on the Internet telling people that they might be spied on at all times by Open Planet, our expectations would diminish. And then the question is, should we have any residual protections?

That was a question that the Court in [U.S. v.] Jones [565 U.S. __ (2012)] didn’t answer clearly. Justice [Samuel A.] Alito did seem to say that the relevant test was what citizens actually and realistically expected. But, that seemed to set the stage for something like Open Planet to proliferate as long as it was done quickly and there were lots of warnings taken out about it.

Technology’s also changed our expectations because, unlike in real space, although we may know in a theoretical sense that we might be viewed out of context, it’s not our actual experience.

So, on Facebook, people expose stuff, imagining that it’s going to be basically viewed by their friends. And, although they may be warned and told that the friends might share, or Facebook may have boilerplate disclosures warning that Facebook has access to the data, we don’t actually imagine that it’s happening. And, we’re shocked and surprised and discomfited when Facebook ends up tracking us on the basis of conduct we didn’t imagine was going to be used for selling us ads as opposed to sharing with our friends.

I think these are all additional reasons why we need to re-think the ‘expectation of privacy’ doctrine. At some point, Congress or the courts or the mobilized citizens of the world are going to have to say, ‘regardless of how much Mark Zuckerberg warns us that he is collecting and tracking our data, there is a point beyond which that becomes unreasonable and an indignity. And, defining that point is tough, which is why the Supreme Court was understandably reluctant [in Jones] to specify the difference between surveillance 24/7 for a month and surveillance for a day. But, unless that line is defined, judicially or legislatively, then we’re at the mercy of the technology.

Would you discuss how Constitution 3.0’s exploration of the emerging power of neuroscience fit into this discussion of technology and law?

Yes.

There are two really rich and provocative contributions about the future of neuro-law. And both of them begin with the idea that neuroscience is changing our traditional conceptions of criminal responsibility.

So, traditionally in Anglo-American law, you’re held responsible for your freely chosen actions. Unless you literally act under duress—someone points a gun to your head, you know, ‘steal or else’—or a defect in understanding that meets the legal definitions of insanity, you’re held responsible for your actions.

Neuroscience is now presuming to say that some people, because of their brain structure, are less able to control their impulses than others. If you have an overly-active Amygdala, which is the emotion control of the brain, and an under-active Pre-frontal Cortex, which is supposed to be the conscience which restrains the Amygdala, then, according to this defense, ‘my brain made me do it: I couldn’t conform my actions to law.’

And some criminals, convicted criminals in death penalty cases, are, as a matter of course, introducing this ‘brain-made-me-do-it’ defense in order to argue if not that their conduct should be excused at least their punishment should be mitigated. So far, these defenses have not been all that successful. It’s allowed in under the relaxed evidentiary rules that happen at sentencing. But, juries are not buying it much.

Nevertheless, according to some philosophers, this, the more we learn about the brain, the more we need to abandon our whole notion of retribution being an appropriate goal of criminal punishment. If it’s true that we’re really all slaves of our brain, and that my decision to have a salad rather than soup for lunch was predetermined by my brain structure as well as by my, you know, the way my Mommy and Daddy treated me, which was delightful, and, you know, other things that I can’t control, then punishing me for my criminal actions seems no more fair than punishing a robot for acting according to a program that it can’t control. Instead, it might be appropriate to emphasize deterrence, to lock me up forever because we’re afraid my brain is going to make me choose the bad action again. But, blameworthiness is no longer appropriate.

One of our contributors, [University of Notre Dame Law School Professor] [O.] Carter Snead, made the very interesting point that this may not be great for liberal values or even for accused criminals. After all, if it’s not appropriate to punish people based on their blameworthiness, it’s also not appropriate to mitigate their punishment based on their acceptance of responsibility. And, if you’re really only concerned about restraining or deterring automatons from bad actions, you might have more capital punishment not less. So, it is not at all clear that the side of liberalism will be served by these ‘brain-made-me-do-it’ defenses.

But, in addition to all that, brain science is calling into question not only our notions of responsibility but also ideas about lie detection and also deterring people for future bad acts.

So, for lie detection, already, apparently, there are some fMRI scans that purport, when you show someone a picture of a place they’ve been, like a training camp in Afghanistan, to detect the brain lighting up in a particular way and, if they haven’t been to the training camp, then it won’t light up. And, this is supposed to be more accurate than current lie detectors, although not accurate enough to be admitted into court under the Supreme Court’s evidentiary standards. Once this gets ready for Prime Time, which it will soon, then you could well imagine picking someone off the street; giving them a brain scan, if their brain lights up to the training camp, off they go to indefinite detention.

Now all of a sudden, we’re getting some very troubling questions about holding people accountable not for the acts that they’ve committed in the past but for the bad acts they might commit in the future. And as the brain scans become more sophisticated and purport to show pictures of broken brains, people with more grey matter in their Pre-frontal Cortex who are supposed to be more predisposed to violence, might it not be possible to actually emphasize who is most likely to commit a bad act in the future; scan their brains; create a profile of the potential terrorist; and indefinitely detain people based on their future bad actions. This would gravely challenge the idea in Anglo-American jurisprudence that you should be held responsible for what you do not for what you think—for your actions rather than your predispositions. But, our two interlocutors, Snead and Morse, struggled very interestingly with the degree to which this technology will challenge those traditional liberal values.

What is it about technology in general—neuroscience in particular—that worries legal scholars that we might start punishing thoughts not deeds? Doesn't the Constitution forbid this?

It’s so striking, isn’t it, that although the idea that we should punish people for their actions rather than their predispositions seems to be a Constitutional value, it’s hard to point to a particular provision of the Constitution that guarantees it.

The Court has said that sex offenders, for example, may be indefinitely detained in the future based on their future dangerousness because the connection between the past impulses and the future bad action are supposed to be so direct. This isn’t viewed as a punishment but a civil confinement necessary to protect society.

Now, it’s true that sex offenders have to be duly convicted of an offense before they can be indefinitely detained. But I think all of us can imagine that, if the technology got good enough at predicting accurately whether people who hadn’t yet committed bad acts in the future might, because of their brain structure, we could well imagine efforts to detain them as well.

Of course, the justification would be: ‘This is for their own good; this is civil detention; it’s for the protection of society; we’re not punishing them, we’re just preventing them from acting according to the irresistible impulses of their brains.’

So, if that were the case, what Constitutional provision would forbid this sort of detention?

The nearest analogy almost seems to be the Bill of Attainder clause, the Constitutional provision that prohibits Congress from passing bills of Attainder, which, of course, were the efforts to criminalize people based on their status not their conduct. So, if say I, Jeff, committed treason against the King in the old days, not only would I be a taint and my, and I would be grotesquely disemboweled in a very ceremonial way, but, and executed, but not only I but my children would be strangers to the law and they would have no ability to have offices of honor or profit and they would be banished and they wouldn’t have the protection of the laws. And essentially they would be people without legal status. That would be visiting the sins of the father on the children. And the Bill of Attainder clause is designed to prohibit that.

And, you know, we could certainly construct Constitutional arguments about, that would call into question indefinite detention based on predispositions. You could say that this was a form of deprivation of liberty without due process of law, that Due Process requires that you’re duly tried and convicted by a court before you’re detained. But, of course, the Supreme Court has signaled that when it comes to terrorism and the category of enemy combatants, a trial might not be necessary, if you’re found on the battlefield. So, maybe the analogy here would be it’s, the violent brain is like being found on the battlefield.

The point is not to resolve these issues but just to suggest how dramatically an issue you’d think would be clear under American law—namely, you can’t detain people for their predispositions—isn’t clear, how the existing Constitutional doctrine is challenged so dramatically by this technology.

—End of Part Three—

Part Four

Controlling Authority

In Part Four, Professor Rosen discusses news ways to think about the government’s ability to collect and use data and what the recent Jones case may tell us about Supreme Court thinking.

Would you discuss Professor Orin Kerr’s suggestion of “use restrictions”?

Yes.

[George Washington University Law School Professor] Orin Kerr has a very helpful and illuminating suggestion when he emphasizes use restrictions.

His basic point is that the collection of data is very hard to regulate. The cat is out of the bag. We’re leaving so much data trails everywhere already that an attempt to prohibit it from being collected and even integrated may be foolish. But, he emphasizes use restrictions could make a big difference.

There’s a model here. The Germans, who have an obvious and daunting history of totalitarianism, allow their intelligence services to have broad access to data without a Warrant. But, they can only pass that data on to law enforcement, if they find evidence of terrorism or other serious crimes. If the intelligence services were to find evidence of low-level wrong-doing, like adultery, for example, they would not be able to share that information with law enforcement.

That’s a quintessential example of a use restriction. You can share the information when it relates to a serious crime but not when it relates to a low-level crime.

And Professor Kerr argues, and I agree with him, that similar use restrictions in the US would go a long way toward alleviating a lot of the concerns about unlimited government access to data. We’d be less concerned about surveillance on an Open Planet-like system, if the police were only allowed to use the information they learned to prevent murder and terrorism and not to go after people for lying on their tax returns.

Unfortunately, and Professor Kerr doesn’t examine the practical likelihood of this, but I think he would argue, and I’d agree, that it’s not likely to pass in practice. It’s hard to stand up in Congress and say, ‘We have to allow the police to go after the murderers but not the adulterers.’ Imagine standing up and saying that.

Or, as I found when I interviewed Larry Ellison of Oracle years ago, who runs the largest database company in the world, and he had just proposed—it was right after 9/11—to offer the US government free software for databases. Coincidentally, they were going to be Oracle databases and also coincidentally the maintenance and upgrades weren’t going to be free. But, he wanted to centralize all the data the government holds in an Oracle database and check people before they go on airplanes to see if they had anything bad in their past.

And I objected. “But wouldn’t this mean that if you were late on your child support payments, then you could never get on a plane or get into a government building? It’s one thing to keep a terrorist off but another to keep off an adulterer.”

And he got very indignant and said, ‘Well, what’s so great about protecting people who are late on their child support payments? You know, if you do something wrong, you’ve got to take the consequences. Nothing to hide; nothing to fear.’

And, that’s a very popular position in the country as a whole. John Ashcroft, the Attorney General, said a similar thing when I suggested use restrictions in an interview with him.

So, in a democracy, it’s tough to argue for use restrictions. That’s why I think that the Europeans are more likely to impose these use restrictions through non-democratic, or rather non-plebiscitary bodies—not through their legislatures but administrative bodies. They put more faith in the power of experts to restrict information. They give their data privacy commissioners have more power. So, you almost need an administrative regulation to implement use restrictions. We can’t rely on politicians to do it.

Are administrative agencies a better way to regulate the use of information?

[Harvard Law School Professor] Jack Goldsmith does have a wonderful essay about how much more of this surveillance is already going on than we imagine. And he talks about the Einstein 3 program, which the government has acknowledged in the vaguest, most general terms. And under Einstein 3, in an effort to avert cyber-attacks, the government is asserting the power to scan all Internet traffic coming from abroad and when it detects any suspicious patterns to intervene in real time to destroy the information.

This is a version of the warrantless wiretapping that the Foreign Intelligence Surveillance Act (FISA) and other laws seem to forbid. But, says Goldsmith, could it be justified in the name of exigency?

He thinks that you’d need a legislative fix. Congress would had to explicitly pass a law authorizing Einstein 3 to put it on really solid legal footing. But, he also notes that in order to be consistent with Fourth Amendment values, although not necessarily with the Fourth Amendment itself, you would need a series of use restriction-like devices. He talks about minimization requirements that would require the data to be destroyed after a particular period of time, if it didn’t contain anything suspicious; independent oversight by judges; and sunset provisions that would insure that the authority would expire after a certain period of time unless Congress wanted to renew it.

So, for him, I think he imagines that these restrictions should be embraced by Congress, although he’s not all that optimistic that they will be. He notes that similar restrictions were recommended by things like the Berger decision [Berger v. New York, 388 US 41 (1967)], the Supreme Court’s decision regulating wiretapping. There, Congress did respond by passing the kind of restrictions that the Court recommended.

I think we’ll see whether the Congress responds to the Jones decision by accepting Justice Alito’s suggestion that we need a Global Positioning System legislation and that it’s not up to courts alone but that some sort of legislative regulation of access to geo-location data is necessary. But, this is such an important problem because it’s a solution without a natural constituency. And, it’s just not obvious, I think, to any of our authors exactly whether the good results that they suggest will in practice be adopted.

As the Supreme Court works these issues out in Jones, is it interesting to you which Justices write and what they say?

Yes. The Jones case is interesting and encouraging on a lot of levels.

It is interesting and encouraging that all the Justices, liberal and conservative, rejected the position that there’s no privacy in public.

It’s encouraging that each of them contributed something promising for the future. So, it’s a good thing that Justice [Antonin] Scalia and his colleagues said that trespass law may not be the ceiling for Fourth Amendment protections but it’s at least a floor. It’s a good thing that [Justice Samuel A.] Alito was so willing, in a very creative way, to entertain and recognize the difference between short and long-term surveillance. And, it’s great that Justice [Sonia] Sotomayor called for re-examining the Third-party Doctrine, which says that data I share with a third part like Google is data in which I abandon expectation of privacy and which Google can then share without limitations with the government.

It’s also encouraging that the Justices seem to be as tech-savvy as any normal citizen in this world. You know, there was a lot of ridiculing of them on the blogs for their supposed tech-ludditism. In the oral argument about the privacy of a beeper, the Quon case [City of Ontario, California v. Quon, 560 US __ (2009)], [Chief] Justice [John G.] Roberts[, Jr.] was criticized for asking a question that seemed not to understand what a, what text messaging technology was. And others noted that Justice [Elena] Kagan, the youngest Justice, grew up with video technology that went no further than Pong. And then, of course, in the Communications Decency Act case back in the 90s [Reno v. ACLU, 521 US 844 (1997), there were apparently, according to press reports, porn tutorials in the Supreme Court library where [Harvard Law School Professor] Larry Lessig, who was then a Clerk for Justice Scalia and is also an Internet guru, had to set up computers and show the Justices how to sign on and access Internet pornography, no doubt sternly cautioning them not to engage in this hideous vice in their spare time.

But, in this [the Jones] case, we learn that the Justices are citizens of the new digital highway along with the rest of us. They get EZ Pass. They use Kindles...they use e-mail. They have smart phones. And therefore, they are not going to allow the fact that they are old and, in that sense, less tech-savvy than younger people, they won’t allow that to prevent them from engaging in this crucial question of how to translate the Constitution in light of new technologies.

Is present concern for technology's effect on Constitutional values a generational issue?

Yes. The Jones case is interesting and encouraging on a lot of levels.

It is interesting and encouraging that all the Justices, liberal and conservative, rejected the position that there’s no privacy in public.

—End of Part Four—

Part Five

Conclusions

“What’s so inspiring about our beautiful Constitution is that it provides a framework for discussion that challenges us to preserve values in the face of change as they always have changed. Technology has always challenged our Constitutional values. We’ve responded in more and less effective ways. But at least there’s a framework for the conversation that we can root in the text and history of this wonderful document.”

Part Five (b, Professor Rosen discusses whether younger generations of technology users will answer questions of Constitutional value differently and how these questions have been resolved over time.

Is present concern for technology’s effect on Constitutional values generational?

I am very skeptical of generational claims when it comes to the Privacy debate.

It’s true: Younger people have different norms of exposure than older people in some regards. They’re more willing to go through naked body scanners at airports—because they look much better than the rest of us. They are more willing to share details of their personal lives on Facebook.

But, these same young people are quite savvy about editing their Facebook profiles the moment they graduate from college or law school and are applying for jobs. And, are so savvy that they may remove a lot of the embarrassing drunken Facebook pictures but leave up one or two because they’ve learned that if their profiles look too clean employers will think that they’re trying to hide something.

So, as all of us grow up in this digital world, we all adjust to its exigencies. And it’s not the case, I think, that this great new ‘kumbaya’ universe, everything is going to be shared and we’ll just get over our hangups about seeing each other’s secrets and light and sweetness will prevail. It’s just not descriptively right and it’s also would be an undesirable world to live in.

Nevertheless. Will norms change in light of new patterns of behavior? Of course. Of course.

People are not going to draw the line in the same place. Certain forms of exposure that used to be frowned on will be embraced. Much of that is to the good. People have complained about the paternalistic aspects of privacy: efforts to keep women in their place by enforcing norms of modesty. There’s no point in being a Luddite or a moralist in acknowledging the degree to which technology is changing norms of privacy.

The one thing I want to resist is the claim that there will not always be some line that is important to draw and defend. And there will always be some invasions that will be unreasonable. If we’re to be ‘secure in our persons, papers, houses and effects,’ as the Framers insisted, then there are certain forms of observation and surveillance that will have to be considered unacceptable. And that’s why it’s so important that courts, legislatures and citizens negotiate those lines and insist on them and not lazily insist, ‘Oh! No one will care. You should just get over it.’ And so forth.

Reasonableness requires judgments and those are the kinds of lines we have to draw.

Is this to say that the Constitution establishes lasting values and means to resolve competing values but doesn't etch any answer in stone?

Yes. That’s a very good way of putting it.

The Constitution asks questions rather than providing answers. And, it identifies Constitutional values that change over time and may not always rise to the level of Constitutional rights. It was so striking throughout the book that in many cases there was some value that was being threatened even though there was no obvious right that was being threatened. The problem of forgetting on the Internet was one of them. It’s very difficult not to be able to escape your past, to lose a job because of the ill-advised, drunken Facebook picture that you posted. That doesn’t mean you have a right to have it removed and it doesn’t mean that if a right is created, as Europe is trying to do, that that won’t be bad consequences on other Constitutional values like Free Speech. So, that’s why it’s such a complex and fascinating area.

But, what’s so inspiring about our beautiful Constitution is that it provides a framework for discussion that challenges us to preserve values in the face of change as they always have changed. Technology has always challenged our Constitutional values. We’ve responded in more and less effective ways. But at least there’s a framework for the conversation that we can root in the text and history of this wonderful document.

Is technology posing categorically new questions? Or do these questions fit in an existing Constitutional framework?

It’s a hard and important question: Is technology transforming our Constitutional debates in degree or in kind? Are these entirely new challenges? Or are they just different versions of the old questions?

You can argue it either way. I remember once making the argument that the challenges were new and Kathleen Sullivan, then the Dean of Stanford Law School, said, ‘No. This is just the ‘Winnebago Problem.’’

And what she meant by that is that everyone who takes Criminal Procedure in Law School knows all of those line-drawing cases trying to figure out when a passenger compartment becomes a trunk. And the challenge is the Winnebago, which looks like a combination of a trunk and a passenger compartment. And for Kathleen Sullivan, there were always technological challenges to privacy; Brandeis worried about the Kodak Camera and the tabloid press. And now we have Facebook so many more people are affected than the aristocrats in Brandeis’s day who worried about their social privacy being invaded. Now it’s 800 Million Facebook users rather than three Boston aristocrats. But, it’s just a difference in degree rather than kind.

I respect that position. But my instinct is something has changed in kind and that is the fact that the private corporations have so much more power over these values like Privacy and Free Speech than they did 100 years ago. It’s true that there was the Kodak Company. But it had so much less ability to affect our entire national debate than Facebook did that it strikes me that the challenge of translating Constitutional values into a world where they may not even apply to private actors is a distinctly new problem that has become more acute.

But, there’s no point in fussing too much about this. I’m perfectly willing to acknowledge that maybe it is a difference in degree. But, if that’s the case, it’s a really, really big difference in degree.

You often cite Justice Louis Brandeis as a visionary & influential thinker about the relation of law & technology.

How do large questions of Constitutional value & understanding get resolved?

I’m so glad you asked about my hero, Justice Brandeis. And, I can’t resist this opportunity to plug him by—here, I’ve got him sitting right here on my window sill, so I’m going to bring him over and have him gaze soulfully into the camera. You see his Lincoln-like profile, which was so admired. And, I’m going to have him looking soulfully out the window. Because he was so—Mr Justice, I’m being very respectful in holding you near me here.

But, I believe that Brandeis’s example showed that we cannot rely on judges alone.

Why was it, that in 1890, there was no national constituency for trust busting but, by 1913, the election in which Brandeis was advising Woodrow Wilson, two of the major Presidential candidates—Wilson and [Theodore] Roosevelt—were both declared in opposition to ‘The Money Trust,’ to the ‘Curse of Bigness,’ and determined to pass anti-trust legislation to reign in the banks? It was because of political activism. It was because the Progressives started as an elite movement and insisted on the importance of expert opinions but also mobilized citizens to  lobby state legislatures who passed laws like the minimum wage laws and prototypes of anti-trust laws and created a bi-partisan national constituency around trust-busting.

I look at the political debate today and I am encouraged, frankly, by the similarities, the—not the dissonance but the consonance between the Tea Party and the Occupy movements, not in all respects, obviously, but in their opposition to the banks and their fear of concentrated corporate power, they suggest that there might be a mobilized constituency for curbing unlimited corporate power. Whether they will end up convincing the major political parties to pass regulations that rival that of Roosevelt and Wilson, or whether they fade away, as so many other fringe movements have, depends on whether they can persuade the mainstream Presidential candidates—[Mitt] Romney and [Barack] Obama—that they really have the numbers to make a difference. But I think, using them as a model, that Brandeis would have insisted that these issues involving technology and the Constitution are not ones that should be limited to judges or administrators or experts or certainly not, God help us, law professors. They’re issues that all citizens have a stake in and a duty to engage. The ability to defend Constitutional values is our most precious heritage as Americans and we have to seize it. And that’s why I always love inspiring myself with Brandeis’s wonderful words. He said, “If we would guide by the light of reason, we must let our minds be bold.”

—End of GWorks Interviews: Jeffrey Rosen—

to Part One: Presenting the Future

EDITOR’S NOTES

GWorks Interviews: Jeffrey Rosen was filmed Wednesday 2 February 2012 in Professor Rosen’s office at George Washington University Law School, Disctict of Columbia. GWorks would like to thank Professor Rosen for his generous participation and support of GOVERNINGWorks; and The Brookings Institution, in particular Natalie Fullenkamp

Book Cover: Constitution 3.0: Freedom & Technological Change. Courtesy The Brookings Institution.

Photo: Jeffrey Rosen. Courtesy Jeffrey Rosen.

Photo: Louis D. Brandeis (1856–1941), nominated by President Woodrow Wilson, was an Associate Justice of the United States Supreme Court from 1916 to 1939. Photo ca. 1916 Source: Library of Congress.

Please note: The Brookings Institution, publisher of Constitution 3.0, provided GOVERNINGWorks with a Reviewer Copy of Constitution 3.0.