Digital Communication Must Not Weaken Law Enforcement

Under current U.S. law, the government is authorized to intercept the wire, electronic, or oral communications of a criminal subject by obtaining a special court order which has been designed by Congress and approved by the Supreme Court … The ability of law enforcement to draw on this investigative tool is now at risk. Methods that have been used to intercept analogue voice communications carried over copper wires do not work with many of the new digital-based technologies and services such as ISDN (Integrated Services Digital Network), fiber optic transmissions, and the increasing number of mobile telecommunications networks and architectures.

Copyright Battles on the Web: From Elvis to Wittgenstein

“There is no piece of copyrighted work small enough that [publishers] are uninterested in charging for its use, and no use private enough that they aren’t willing to track it down and charge for it.” Publishers say these changes are needed because works in digital format are so easily copied that the potential for lost revenue is high. They also worry that it is difficult for users to judge the authenticity of material which, in digital form, can be easily reproduced and altered.

The Constitution in Cyberspace

We must embrace, as a rule of construction or interpretation, a principal one might call the “cyberspace corollary” … The 27th Amendment, to be proposed for at least serious debate in 1991 and beyond, 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 processes 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.”

The Constitution in Cyberspace

If we should ever abandon the Constitution’s protections 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 upon contemporary technology.

The Constitution in Cyberspace

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 any government censor or overseer. If we keep that in mind, and only if we keep that in mind, we will be able to see through the 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 zeroes and ones may become virtual life-forms … Speech is protected, but deliberately and fatally yelling ‘Boo!’ at a cardiac patient may still be prosecuted as murder … The lesson, in short, is that constitutional principles are subtle enough to bend to such concerns; they needn’t be broken or tossed out.

The Constitution in Cyberspace

I can “log on” to a computer library, copy a virtual book onto my computer disk, and send a copy to your computer without creating a gap in 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. 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 public domain are, first and foremost, political decisions.

The Constitution in Cyberspace

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 resolution of disputes 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 provide access rather than merely enforcing negative prohibitions against designated sorts of invasion or intrusion.

The Constitution in Cyberspace

Restrictions on the use of information in one country (to protect privacy, for example) tend to lead to the export of that information to other countries, where it can be analyzed and used on a selective basis in the country attempting to restrict it. “Data havens” may emerge reminiscent of the role played by the Swiss in banking, with few restrictions on the storage and manipulation of information.

The Constitution in Cyberspace

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, the danger is clear and present what they will be lost … It is not only the government that feels threatened by computer crime; both the owners and the users of private information services, 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.

The Constitution in Cyberspace

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 of the Constitution didn’t know about making 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.