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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.

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 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.

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