the constitution in cyberspace.txt

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   It would be illuminating at this point to compare the Supreme
Court's initial reaction to new technology in *Olmstead* with its
initial reaction to new technology in *Maryland v. Craig*, the 1990
closed-circuit television case with which we began this discussion.
In *Craig*, a majority of the Justices assumed that, when the 18th-
century Framers of the Confrontation Clause included a guarantee of
two-way *physical* confrontation, they did so solely because it had
not yet become technologically feasible for the accused to look his
accuser in the eye without having the accuser simultaneously watch
the accused.  Given that this technological obstacle has been
removed, the majority assumed, one-way confrontation is now
sufficient.  It is enough that the accused not be subject to
criminal conviction on the basis of statements made outside his
presence.

   In *Olmstead*, a majority of the Justices assumed that, when the
18th-century authors of the Fourth Amendment used language that
sounded "physical" in guaranteeing against invasions of a person's
dwelling or possessions, they did so not solely because *physical*
invasions were at that time the only serious threats to personal
privacy, but for the separate and distinct reason that *intangible*
invasions simply would not threaten any relevant dimension of
Fourth Amendment privacy.

   In a sense, *Olmstead* mindlessly read a new technology *out* of
the Constitution, while *Craig* absent-mindedly read a new technology
*into* the Constitution.  But both decisions -- *Olmstead* and *Craig* --
had the structural effect of withholding the protections of the
Bill of Rights from threats made possible by new information
technologies.  *Olmstead* did so by implausibly reading the
Constitution's text as though it represented a deliberate decision
not to extend protection to threats that 18th-century thinkers
simply had not foreseen.  *Craig* did so by somewhat more plausibly
-- but still unthinkingly -- treating the Constitution's seemingly
explicit coupling of two analytically distinct protections as
reflecting a failure of technological foresight and imagination,
rather than a deliberate value choice.

   The *Craig* majority's approach appears to have been driven in
part by an understandable sense of how a new information technology
could directly protect a particularly sympathetic group, abused
children, from a traumatic trial experience.  The *Olmstead*
majority's approach probably reflected both an exaggerated estimate
of how difficult it would be to obtain wiretapping warrants even
where fully justified, and an insufficient sense of how a new
information technology could directly threaten all of us.  Although
both *Craig* and *Olmstead* reveal an inadequate consciousness about
how new technologies interact with old values, *Craig* at least seems
defensible even if misguided, while *Olmstead* seems just plain
wrong.

   Around 23 years ago, as a then-recent law school graduate
serving as law clerk to Supreme Court Justice Potter Stewart, I
found myself working on a case involving the government's
electronic surveillance of a suspected criminal -- in the form of
a tiny device attached to the outside of a public telephone booth.
Because the invasion of the suspect's privacy was accomplished
without physical trespass into a "constitutionally protected area,"
the Federal Government argued, relying on *Olmstead*, that there had
been no "search" or "seizure," and therefore that the Fourth
Amendment "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures," simply did not apply.

   At first, there were only four votes to overrule *Olmstead* and
to hold the Fourth Amendment applicable to wiretapping and
electronic eavesdropping.  I'm proud to say that, as a 26-year-old
kid, I had at least a little bit to do with changing that number
>from four to seven -- and with the argument, formally adopted by a
seven-Justice majority in December 1967, that the Fourth Amendment
"protects people, not places."  (389 U.S. at 351.)  In that
decision, *Katz v. United States*, the Supreme Court finally
repudiated *Olmstead* and the many decisions that had relied upon it
and reasoned that, given the role of electronic telecommunications
in modern life, the First Amendment purposes of protecting *free
speech* as well as the Fourth Amendment purposes of protecting
*privacy* require treating as a "search" any invasion of a person's
confidential telephone communications, with or without physical
trespass.

   Sadly, nine years later, in *Smith v. Maryland*, the Supreme
Court retreated from the *Katz* principle by holding that no search
occurs and therefore no warrant is needed when police, with the
assistance of the telephone company, make  use of a "pen register",
a mechanical device placed on someone's phone line that records all
numbers dialed from the phone and the times of dialing.  The
Supreme Court, over the dissents of Justices Stewart, Brennan, and
Marshall, found no legitimate expectation of privacy in the numbers
dialed, reasoning that the digits one dials are routinely recorded
by the phone company for billing purposes.  As Justice Stewart, the
author of *Katz*, aptly pointed out, "that observation no more than
describes the basic nature of telephone calls . . . .  It is simply
not enough to say, after *Katz*, that there is no legitimate
expectation of privacy in the numbers dialed because the caller
assumes the risk that the telephone company will expose them to the
police."  (442 U.S. at 746-747.)  Today, the logic of *Smith* is
being used to say that people have no expectation of privacy when
they use their cordless telephones since they know or should know
that radio waves can be easily monitored!

   It is easy to be pessimistic about the way in which the
Supreme Court has reacted to technological change.  In many
respects, *Smith* is unfortunately more typical than *Katz* of the way
the Court has behaved.  For example, when movies were invented, and
for several decades thereafter, the Court held that movie
exhibitions were not entitled to First Amendment protection. When
community access cable TV was born, the Court hindered municipal
attempts to provide it at low cost by holding that rules requiring
landlords to install small cable boxes on their apartment buildings
amounted to a compensable taking of property.  And in *Red Lion v.
FCC*, decided twenty-two years ago but still not repudiated today,
the Court ratified government control of TV and radio broadcast
content with the dubious logic that the scarcity of the
electromagnetic spectrum justified not merely government policies
to auction off, randomly allocate, or otherwise ration the spectrum
according to neutral rules, but also much more intrusive and
content-based government regulation in the form of the so-called
"fairness doctrine."

   Although the Supreme Court and the lower federal courts have
taken a somewhat more enlightened approach in dealing with cable
television, these decisions for the most part reveal a curious
judicial blindness, as if the Constitution had to be reinvented
with the birth of each new technology.  Judges interpreting a late
18th century Bill of Rights tend to forget that, unless its *terms*
are read in an evolving and dynamic way, its *values* will lose even
the *static* protection they once enjoyed. Ironically, *fidelity* to
original values requires *flexibility* of textual interpretation.  It
was Judge Robert Bork, not famous for his flexibility, who once
urged this enlightened view upon then Judge (now Justice) Scalia,
when the two of them sat as colleagues on the U.S. Court of Appeals
for the D.C. Circuit.

   Judicial error in this field tends to take the form of saying
that, by using modern technology ranging from the telephone to the
television to computers, we "assume the risk."  But that typically
begs the question.  Justice Harlan, in a dissent penned two decades
ago, wrote: "Since it is the task of the law to form and project,
as well as mirror and reflect, we should not . . . merely recite .
. . risks without examining the *desirability* of saddling them upon
society."  (*United States v. White*, 401 U.S. at 786).  And, I would
add, we should not merely recite risks without examining how
imposing those risks comports with the Constitution's fundamental
values of *freedom*, *privacy*, and *equality*.

   Failing to examine just that issue is the basic error I
believe federal courts and Congress have made:

   *  in regulating radio and TV broadcasting without
      adequate sensitivity to First Amendment values;

   *  in supposing that the selection and editing of
      video programs by cable operators might be less
      than a form of expression;

   *  in excluding telephone companies from cable and
      other information markets;

   *  in assuming that the processing of "O"s and "1"s
      by computers as they exchange data with one
      another is something less than "speech"; and

   *  in generally treating information processed
      electronically as though it were somehow less
      entitled to protection for that reason.

   The lesson to be learned is that these choices and these
mistakes are not dictated by the Constitution.  They are decisions
for us to make in interpreting that majestic charter, and in
implementing the principles that the Constitution establishes.


*Conclusion*

   If my own life as a lawyer and legal scholar could leave just
one legacy, I'd like it to be the recognition that the Constitution
*as a whole* "protects people, not places."  If that is to come
about, the Constitution as a whole must be read through a
technologically transparent lens.  That is, we must embrace, as a
rule of construction or interpretation, a principle one might call
the "cyberspace corollary."  It would make a suitable
Twenty-seventh Amendment to the Constitution, one befitting the
200th anniversary of the Bill of Rights.  Whether adopted all at
once as a constitutional amendment, or accepted gradually as a
principle of interpretation that I believe should obtain even
without any formal change in the Constitution's language, the
corollary I would propose would do for *technology* in 1991 what I
believe the Constitution's Ninth Amendment, adopted in 1791, was
meant to do for *text*.
   The Ninth Amendment says:  "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."  That amendment provides
added support for the long-debated, but now largely accepted,
"right of privacy" that the Supreme Court recognized in such
decisions as the famous birth control case of 1965, *Griswold v.
Connecticut*.  The Ninth  Amendment's simple message is:  The *text*
used by the Constitution's authors and ratifiers does not exhaust
the values our Constitution recognizes.  Perhaps a Twenty-seventh
Amendment could convey a parallel and equally simple message:  The
*technologies* familiar to the Constitution's authors and ratifiers
similarly do not exhaust the *threats* against which the
Constitution's core values must be protected.
   The most recent amendment, the twenty-sixth, adopted in 1971,
extended the vote to 18-year-olds.  It would be fitting, in a world
where youth has been enfranchised, for a twenty-seventh amendment
to spell a kind of "childhood's end" for constitutional law.  The
Twenty-seventh Amendment, to be proposed for at least serious
debate in 1991, would read simply:

"This Constitution's protections for the freedoms of
speech, press, petition, and assembly, and its
protections against unreasonable searches and seizures
and the deprivation of life, liberty, or property without
due process of law, shall be construed as fully
applicable without regard to the technological method or
medium through which information content is generated,
stored, altered, transmitted, or controlled."