The last time I had seen Jim Warren looking so enthusiastic, he was on roller skates. That was in San Francisco years ago, during the heyday of the West Coast Computer Faire, when the Faire still had that proper mixture of swap meet, Renaissance pleasure faire, and revolution in the making. Jim also started InfoWorld and was the first editor of Dr. Dobb's, but for years he was most closely associated with the Faire, at which he was always the picture of the laid-back workaholic, zipping through the aisles on wheels.
This time we were a few miles to the south, in Burlingame, California, on March 26 of this year, at The First Conference on Computers, Freedom, and Privacy. The conference was sponsored by the Computer Professionals for Social Responsibility; cosponsored or supported by Apple Computer, Autodesk, Portal Communications, the IEEE, and the ACM and various special interest groups of each, the Electronic Networking Association, the Videotex Industry Association, the Cato Institute, the Electronic Frontiers Foundation, the ACLU, and the WELL; attended by hackers, crackers, spooks, and citizens, as well as members of the press from The Wall Street Journal to Dr. Dobb's Journal; and chaired by Jim Warren.
"I just found out he's going to say more than we expected," Jim whispered to me. "He's going to call for a Constitutional amendment."
The "he" was Laurence H. Tribe, Professor of Constitutional Law, Harvard Law School, widely regarded as the leading authority on Constitutional law, a man who has been described as having had more influence on the Supreme Court than any other living person not actually on the Court. A few minutes before delivering his keynote speech this morning, Tribe had told Jim that the speech will propose a Constitutional amendment for the information age.
Tribe's appearance alone was enough to bring out the East Coast and national press; this news would send them to the phones after the keynote. For Jim Warren it was something like the early Faire days, when you had the sense that you were in on the reshaping of society. For me, too, I guess. This column is about computers, freedom, privacy, and Tribe's proposed amendment to the Constitution. I should disclose my bias: I'm on Tribe's side.
I wasn't the only listener Tribe got on his side that morning. He made points with the technically savvy audience immediately by defining, and setting his goal in terms of, cyberspace. He knows that the word "cyberspace" is sometimes used in just the sense in which William Gibson, cyberpunk author and coiner of the word, uses it: For fantasy worlds in which one's mind becomes a device for exploring a global data web. But he also knows the other sense in which the word is more and more often being used: For the full range of computer-mediated human interactions, from the copper-path network of traditional telephony and the current one-way version of television, to highly tappable cellular phones and office LANs and electronic bulletin boards and networked police cruiser-based mobile terminals, to the ultimate in computer-mediated human interaction, Prodigy. (Sorry. My joke, not Tribe's.)
Tribe set as his topic "how to map the text and structure of our Constitution onto the texture and topology of cyberspace," asking, "when the lines along which our Constitution is drawn warp or vanish, what happens to the Constitution itself?"
Although convinced that "[t]he Constitution's core values ... need not be transmogrified ... in the dim recesses of cyberspace," Tribe cited evidence of a clear and present danger that that is exactly what will happen.
First, there is the threat of computer crime, and the threat from those who overreact to that threat. Computer crime is real: Electronic trespass has grown in menace to the point of cracking NORAD; crackers download and publish people's credit histories from TRW; pranksters set loose worm programs that shut down thousands of linked computers.
In response to these and other threats, real or imagined, the Secret Service raided Steve Jackson Games, seizing all drafts of its fantasy role-playing game, calling it a "handbook for computer crime;" the Treasury Department tied up a fourth of its investigators eaves-dropping on electronic bulletin boards; and last May, the government's Operation Sun Devil took on the teenagers' Legion of Doom, seizing 42 computers and 23,000 disks in 14 cities. This cracker war is weird enough. But there are many other, more subtle issues involving the effect of technological developments on freedom, privacy, and other Constitutional issues. The conference addressed many of them.
The Lotus Marketplace snafu was on everybody's mind. Lotus had only recently pulled the product off the market in reaction to public concern over invasions of privacy. But was the data involved actually private?
Then there was the phone number thing. The phone company has a service to sell you: It shows you the telephone number of a caller before you answer the phone. The more I heard about this (and between the newspaper articles, panel discussions, and televised debates, there were plenty of opportunities to hear about it), the less I understood why this particular technology had been chosen to sell to the consumer. Whom does it really benefit? And does it constitute an invasion of privacy?
And let us not forget the Rodney King case: It involved not one, but two new technologies. While covering the video-taped beating of a motorist by members of the Los Angeles Police Department, television stations across the country quoted from a discussion among officers about the beating. The discussion took place on a network of police cruiser-based mobile terminals. Was this an invasion of privacy?
We can't assume that the courts and legislatures will deal wisely with such questions. Tribe cited several cases of what he sees as errors of Congress and the federal courts in dealing with technology, including the regulation of radio and television broadcasting without adequate sensitivity to First Amendment values, and a general treatment of electronically processed information as though it were less entitled to Constitutional protection because of that processing.
In short, the technologies that put food on our tables raise problems for the Constitutional guarantees of freedom of speech, freedom of the press, freedom of assembly, the right of privacy, the protection against unreasonable search and seizure, and the security in one's property.
That's what was on Tribe's mind as he spoke that morning.
In that keynote address, Tribe gave two Supreme Court cases, Maryland vs. Craig and Olmstead vs. United States, as examples of the ways in which the Court has dealt with new technologies. The way the Court dealt with new technologies in these cases, Tribe thinks, was in one case misguided and in the other case plain wrong, and he explained why he thinks so.
In the recent case Maryland vs. Craig, the Supreme Court considered the impact of one-way, closed-circuit television on the Sixth Amendment guarantee that "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The accused in this case was an alleged child abuser, and the witness an allegedly abused child. Balancing benefits to the accuser and to society against costs to the accused, the Court upheld, in a 5 to 4 decision, the power of a state to "confront" the accused with a one-way, closed-circuit television version of his accuser. Tribe quoted from Justice Scalia's dissent:
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].
Tribe professed himself in complete agreement with Scalia; he apparently believes that the Confrontation Clause is about more than just seeing what your accuser looks like.
Back in 1928, in Olmstead vs. United States, the Supreme Court first confronted a different new technology: the wiretap. The Court ruled that Federal agents did not violate the Fourth Amendment's "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" when they tapped a phone without actually entering the physical premises. The majority of the Court reasoned that the Amendment, by enumerating physical things (persons, houses, papers, and effects), demonstrated that it was only meant to apply to physical searches. Six years later, Congress put back some of the protection that this decision removed, when it passed the Federal Communications Act. But it wasn't until 1967 that Olmstead vs. United States was overruled, in Katz vs. United States. In that case, all participating justices except one agreed with the statement of Justice Potter Stewart that "the Fourth Amendment protects people, not places." That statement, which may have swayed the decisions of three justices, was apparently supplied by Stewart's law clerk, Laurence H. Tribe.
How did the Court respond to the challenge of new technologies in Maryland vs. Craig and Olmstead vs. United States? "Olmstead mindlessly read a new technology out of the Constitution," according to Tribe, "while Craig absent-mindedly read a new technology into the Constitution." Both decisions undermined the protections of the Bill of Rights; Olmstead by reading the Constitution as though the 18th-century authors had considered the question of nonphysical searches and consciously decided to permit them; Craig by guessing that when those authors guaranteed two-way physical confrontation, it was only because they did not foresee the possibility of one-way electronic confrontation.
"Although both Craig and Olmstead reveal an inadequate consciousness about how new technologies interact with old values," Tribe concluded, "Craig at least seems defensible even if misguided, while Olmstead seems just plain wrong."
In the press room after his talk, Tribe cited these same cases to explain why he is proposing a Constitutional amendment rather than arguing cases before the Court, something at which he has impressive experience.
The usual ways of bringing up these issues in trials have problems. Maryland vs. Craig involved arguing for a right of an accused child abuser while advocating putting a child through an arguably unnecessary ordeal. Olmstead vs. United States involved arguing for a right of an accused racketeer while suing the government over what could easily be seen as a technicality. In each case, defending the Constitutional principle came down to attempting to establish an abstract principle by using a case in which application of the principle would pretty obviously hurt the innocent and aid the guilty.
If the issue is one of broad principle, Tribe advised, it is better to argue it in a venue that is suited to arguing broad principles. He doesn't necessarily expect the amendment to pass; but he believes that arguing it in this way may bring the best possible thinking to bear on the issues.
What's the secret to avoiding the errors of the past in dealing with technology? Tribe argues that the goal must be to remain true to the values represented in the Constitution. Fidelity to the values requires flexibility in textual interpretation, he says. And this interpretation should not merely reflect the risks posed by technology, but should examine "how imposing those risks comports with the Constitution's fundamental values of freedom, privacy, and equality."
As to the argument itself, Tribe delivered it in classical form in the keynote, presenting axioms for the information age.
For example, axiom 1: There is a vital difference between government and private action.
As computer networks grow large, mediate their members' differences, create rules of behavior, and straddle national boundaries, do they become, as Professor Eli Noam argues, political entities? Since the Constitution regulates governmental actions rather than the behavior of individuals or groups, such an interpretation has been mooted as a justification for regulating electronic bulletin boards and networks as though they were government bodies. It's an approach that has been applied to such quasi-governmental entities as large shopping malls and company towns. Is it valid in the case of today's bulletin boards and networks?
No, says Tribe. A BBS is not a mall, but something more like a bookstore (and not a publisher, either). So the government has no more business regulating the content of a BBS than of a bookstore; but this doesn't make the BBS operator liable for the content of messages any more than a bookstore owner is liable for the the books on the shelves.
Another Tribe axiom argues that Constitutional principles should not vary with accidents of technology. This axiom most directly motivates the Tribe amendment. Tribe calls it the cyberspace corollary. Here it is, the proposed 27th amendment to the Constitution of the United States:
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 the information content is generated, stored, altered, transmitted, or controlled.
Copyright © 1991, Dr. Dobb's JournalThe Constitution In Cyberspace
Getting Down to Cases
Tribal Wisdom