the constitution in cyberspace.txt

1000 HOWTOs for various needs [WINDOWS]

   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