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Конституция в киберпространстве: закон и свобода за электронной границей (english/russian)

Конституция в киберпространстве: закон и свобода за электронной границей (english/russian)

Волгоградская академия государственной службы

Кафедра иностранных языков








Конституция в киберпространстве:

закон и свобода за
электронной границей






подготовила                                          студентка гр.ЮВ-303

                                                               Пенкина Н.В.

руководитель                                        Першин Ю.Ю.









The Constitution in Cyberspace:

Law and Liberty Beyond the Electronic Frontier


My topic is how to "map" the text and structure of our Constitution onto the texture and topology of "cyberspace". That's the term coined by cyberpunk novelist William Gibson, which many now use to describe the "place" — a place without physical walls or even physical dimensions — where ordinary telephone conversations "happen," where voice–mail and e-mail messages are stored and sent back and forth, and where computer-generated graphics are transmitted and transformed, all in the form of interactions, some real-time and some delayed, among countless users, and between users and the computer itself.

Some use the "cyberspace" concept to designate fantasy worlds or "virtual realities" of the sort Gibson described in his novel “Neuromancer”, in which people can essentially turn their minds into computer peripherals capable of perceiving and exploring the data matrix. The whole idea of "virtual reality," of course, strikes a slightly odd note. As one of Lily Tomlin's most memorable characters once asked, "What's reality, anyway, but a collective hunch?" Work in this field tends to be done largely by people who share the famous observation that reality is overrated!

However that may be, "cyberspace" connotes to some users the sorts of technologies that people in Silicon Valley (like Jaron Lanier at VPL Research, for instance) work on when they try to develop "virtual racquetball" for the disabled, computer-aided design systems that allow architects to walk through "virtual buildings" and remodel them before they are built, "virtual conferencing" for business meetings, or maybe someday even "virtual day care centers" for latchkey children. The user snaps on a pair of goggles hooked up to a high-powered computer terminal, puts on a special set of gloves (and perhaps other gear) wired into the same computer system, and, looking a little bit like Darth Vader, pretty much steps into a computer-driven, drug-free, 3-dimensional, interactive, infinitely expandable hallucination complete with sight, sound and touch — allowing the user literally to move through, and experience, information.

I'm using the term "cyberspace" much more broadly, as many have lately. I'm using it to encompass the full array of computer-mediated audio and/or video interactions that are already widely dispersed in modern societies — from things as ubiquitous as the ordinary telephone, to things that are still coming on-line like computer bulletin boards and networks like Prodigy, or like the WELL ("Whole Earth 'Lectronic Link"), based here in San Francisco. My topic, broadly put, is the implications of that rapidly expanding array for our constitutional order. It is a constitutional order that tends to carve up the social, legal, and political universe along lines of "physical place" or "temporal proximity." The critical thing to note is that these very lines, in cyberspace, either get bent out of shape or fade out altogether. The question, then, becomes: when the lines along which our Constitution is drawn warp or vanish, what happens to the Constitution itself?

Setting the Stage

To set the stage with a perhaps unfamiliar example, consider a decision handed down nine months ago, “Maryland v. Craig”, where the U.S. Supreme Court upheld the power of a state to put an alleged child abuser on trial with the defendant's accuser testifying not in the defendant's presence but by one-way, closed-circuit television. The Sixth Amendment, which of course antedated television by a century and a half, says: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Justice O'Connor wrote for a bare majority of five Justices that the state's procedures nonetheless struck a fair balance between costs to the accused and benefits to the victim and to society as a whole. Justice Scalia, joined by the three "liberals" then on the Court (Justices Brennan, Marshall and Stevens), dissented from that cost-benefit approach to interpreting the Sixth Amendment. He wrote:

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].

Could it be that the high-tech, closed-circuit TV context, almost as familiar to the Court's youngest Justice as to his even younger law clerks, might've had some bearing on Justice Scalia's sly invocation of "virtual" constitutional reality? Even if Justice Scalia wasn't making a pun on "virtual reality," and I suspect he wasn't, his dissenting opinion about the Confrontation Clause requires us to "confront" the recurring puzzle of how constitutional provisions written two centuries ago should be construed and applied in ever-changing circumstances.

Should contemporary society's technology-driven cost-benefit fixation be allowed to water down the old-fashioned value of direct confrontation that the Constitution seemingly enshrined as basic? I would hope not. In that respect, I find myself in complete agreement with Justice Scalia.

But new technological possibilities for seeing your accuser clearly without having your accuser see you at all — possibilities for sparing the accuser any discomfort in ways that the accuser couldn't be spared before one-way mirrors or closed-circuit Tvs were developed — should lead us at least to ask ourselves whether two-way confrontation, in which your accuser is supposed to be made uncomfortable, and thus less likely to lie, really is the core value of the Confrontation Clause. If so, "virtual" confrontation should be held constitutionally insufficient. If not — if the core value served by the Confrontation Clause is just the ability to watch your accuser say that you did it — then "virtual" confrontation should suffice. New technologies should lead us to look more closely at just what values the Constitution seeks to preserve. New technologies should not lead us to react reflexively either way — either by assuming that technologies the Framers didn't know about make their concerns and values obsolete, or by assuming that those new technologies couldn't possibly provide new ways out of old dilemmas and therefore should be ignored altogether.

The one-way mirror yields a fitting metaphor for the task we confront. As the Supreme Court said in a different context several years ago, "The mirror image presented [here] requires us to step through an analytical looking glass to resolve it." (“NCAA v. Tarkanian”, 109 S. Ct. at 462.) The world in which the Sixth Amendment's Confrontation Clause was written and ratified was a world in which "being confronted with" your accuser necessarily meant a simultaneous physical confrontation so that your accuser had to perceive you being accused by him. Closed-circuit television and one-way mirrors changed all that by decoupling those two dimensions of confrontation, marking a shift in the conditions of information-transfer that is in many ways typical of cyberspace.

What does that sort of shift mean for constitutional analysis? A common way to react is to treat the pattern as it existed prior to the new technology (the pattern in which doing "A" necessarily included doing "B") as essentially arbitrary or accidental. Taking this approach, once the technological change makes it possible to do "A" without "B" — to see your accuser without having him or her see you, or to read someone's mail without her knowing it, to switch examples — one concludes that the "old" Constitution's inclusion of "B" is irrelevant; one concludes that it is enough for the government to guarantee "A" alone. Sometimes that will be the case; but it's vital to understand that, sometimes, it won't be.

A characteristic feature of modernity is the subordination of purpose to accident — an acute appreciation of just how contingent and coincidental the connections we are taught to make often are. We understand, as moderns, that many of the ways we carve up and organize the world reflect what our social history and cultural heritage, and perhaps our neurological wiring, bring to the world, and not some irreducible "way things are." A wonderful example comes from a 1966 essay by Jorge Louis Borges, "Other Inquisitions." There, the essayist describes the following taxonomy of the animal kingdom, which he purports to trace to an ancient Chinese encyclopedia entitled “The Celestial Emporium of Benevolent Knowledge”:

On those remote pages it is written that animals are divided into:

a)      those belonging to the Emperor

b)      those that are embalmed

c)      those that are trained

d)      suckling pigs

e)      mermaids

f)        fabulous ones

g)      stray dogs

h)      those that are included in this classification

i)        those that tremble as if they were mad

j)        innumerable ones

k)      those drawn with a very fine camel's hair brush

l)        others

m)    those that have just broken a water pitcher

n)      those that, from a great distance, resemble flies

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, 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 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.

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