the constitution in cyberspace.txt

1000 HOWTOs for various needs [WINDOWS]

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.