Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University. Email: sblichtman [at] Ship.edu.
The core figures in the development of privacy in American law are well-known: Louis Brandeis, highlighting “the right to be let alone” in the Harvard Law Review and later as a Supreme Court Justice; Estelle Griswold, defying a Connecticut ban on contraception and prompting the case in which the Supreme Court held personal privacy to be a component of the 14th Amendment’s Due Process Clause; Norma McCorvey, as an anonymous Jane Roe, filing the lawsuit that led to the constitutional and political debates on abortion that continue to this day.
The common thread in these and other examples is the expansion of privacy as an actionable legal concept. But where the notion of privacy expanded in the 20th century, here in the second decade of the 21st century the notion of privacy is under siege. Today’s dynamic is, if you will, an A-to-Z affair: from WikiLeaks’ Julian Assange to Facebook’s Mark Zuckerberg, the core figures in contemporary privacy question its basic utility. They see transparency as preferable to secrecy, and argue that much of our life experiences should be a highly accessible open book. Crucially, advocates of the new transparency are not beyond-the-fringe actors expressing radical ideals. Instead, they are both leaders of a paradigm shift and reflections of a growing (and often generational) reassessment of privacy’s very desirability.
The various contributors to Constitution 3.0, a collection of essays by scholars and practitioners from across the political spectrum, each draw out the consequences of these newly-shifting expectations of privacy. Taken together, the essays are more than merely an accounting of how legal rules and practices are being altered by technological innovation. The volume is a cautionary meditation on the relationship between technological change and constitutional principle. To characterize the book’s overall vision as dystopian might be an overstatement, but there is no question that the issues raised by these essays – and by the ways in which those issues are being addressed by governmental and private sector actors – are more than mildly disturbing.
After a brief introductory piece by co-editor Jeffrey Rosen, the book is divided into four main parts, each of which stresses the ways in which traditional notions of privacy and personal autonomy are being challenged and even upended by technological change. Part One analyzes the impact of new technology on the Fourth Amendment, with emphasis on surveillance in both the criminal justice and international terrorism contexts. Christopher Slobogin wonders if technology has obsolesced the Fourth Amendment; Orin Kerr discusses restrictions on the use of data that can be mined by government and by corporations; Jack Goldsmith focuses on [*276] the steps government should take to combat cyberthreats and how to make those steps consistent with constitutional imperatives.
Part Two of Constitution 3.0 is devoted to the impact of new technologies on freedom of speech. Co-editor Rosen returns with a piece on how internet titans such as Google and Facebook are changing rules for and attitudes about free expression; Tim Wu analyzes the evolution of how information is filtered through intermediaries; Jonathan Zittrain worries about the risks of concentrating so much information on the servers of a handful of providers.
In Part Three, the topic shifts to new technology and neurolaw. Stephen Morse describes the impact new technology is having on neuroscientific analysis of how people are perceived as being responsible for their actions; O. Carter Snead contemplates the impact technology and neuroscience have on general ideas about punishment.
Part Four deals with how new technology affects genetic engineering and notions of personhood. John Robertson’s piece centers on the future of reproductive rights; the essay co-written by Eric Cohen and Robert George offers social, ethical, and political analysis of modern genetics and the issues raised by human cloning; James Boyle ruminates on the ways in which new technologies alter understandings of constitutional personhood; co-editor Benjamin Wittes speculates on future changes in biosecurity.
The book ends with an epilogue in which Lawrence Lessig synthesizes the foregoing work in the context of how a future Supreme Court might apply the Constitution to these issues. Although Lessig’s closing essay is brief, the concerns he raises (and describes as “depressing”) are broad and significant.
Constitution 3.0 is especially disquieting in light of the following dual certainties: emerging technologies raise knotty constitutional problems; and the Supreme Court’s history with these problems is at best spotty. The Court’s free speech jurisprudence, for example, is marked by a series of colossal miscomprehensions about communications technologies, such as their assumption in Olmstead v. United States that a person making a telephone call has no expectation of privacy because they are projecting their voice outside of their house, or their blithe assertion in Reno v. American Civil Liberties Union that internet users “seldom encounter content ‘by accident.’” The overall pattern is a Supreme Court trying to adapt what it knows about free speech to what it thinks it knows (but often doesn’t really know) about a given new communications medium. The common result is a clumsy attempt to graft one set of interpretive rubrics onto constitutional questions that might well demand different techniques, almost as if the Court were trying to light a cigarette with a flashlight.
As Lessig points out, the consequences of imprecise interpretive gambits are particularly dire when they are constitutionally forward-looking, and this is a specific problem when the Court analyzes technology in its opinions. Every time the Court tries to assess how new technology fits into constitutional analysis, they engage in worrisome guesswork that affects how the Constitution is interpreted later on, and does so whether they have guessed right or not about the technology they are [*277] grappling with. Perhaps the most bracing question raised by the book – and it is raised in several spots – is whether American legal actors and institutions are truly capable of formulating coherent and useful responses to the changes that new technologies usher in.
Granted, many of the topics that are raised in the book have been explored recently by other scholars. Cass Sunstein has written about how the Holmesian “marketplace of ideas,” which depends on often-unplanned exposure to alternative points of view, is threatened by a customizable internet experience. The tension, of course, is between the informational imperatives of free speech and our desire for personal autonomy over what we say and think.
What distinguishes the essays in Constitution 3.0 is how they confront the possibility that the salience of personal autonomy as a defense against invasions of our privacy is fading even as the ways in which we can limit invasions of our conscience are multiplying. In short, while we embracing the self-direction and individualistic tailoring functions of “the Daily Me,” we are rapidly losing our ability to control how much data about us is available in cyberspace (and we have almost no control over how governments and marketers plan to use that data). Worse still is the possibility that we are being induced to surrender this autonomy in an incremental fashion without any concomitant awareness that we are doing so.
Constitution 3.0 is thus also a fine companion to other excellent current scholarship in this area. Dawn Nunziato recently published a study of how large corporations such as AT&T and Google are exerting suffocating control over internet speech, and doing so with judicial and regulatory blessings. Her book finds a thoughtful complement in Jeffrey Rosen’s discussion of the supervisory nature of search engines, and how decisions made by functionaries at Facebook and Google affect both the substance of information presented to us as well as the quantum of information about us online.
Similarly, the themes Jon Mills covered in his 2008 monograph on privacy and the insufficiency of legal tools to protect it are further amplified by a number of pieces here. Most on point is Christopher Slobogin’s foreboding that a Fourth Amendment jurisprudence which is often baselined in the invasiveness of a search may offer slim protection in an age when technology enables “virtual” searches as a replacement for physical searches. Whether it is via the web, a thermal imager, or a clandestinely-installed GPS device, the government now has the capacity to nose around in our persons, houses, papers, or effects without us ever even knowing it has gone there. If constitutional privacy is going to remain a vibrant doctrine, especially in its specifically-enumerated criminal law context, philosophical adjustments are going to have to keep pace with technological advances.
Other essays in the book command attention beyond academic and theoretical contexts. Jack Goldsmith’s essay on combating cyberthreats is notable because of his previous service as head of the Office of Legal Counsel during the administration of President George W. Bush. Taking over at OLC after the departure of John Yoo, Goldsmith was one of a number of executive branch officials who raised internal questions about the legality of [*278] the National Security Agency’s program of warrantless domestic wiretaps. Those questions provoked a dramatic behind-the-scenes collision within the Bush White House, with several Administration figures (such as Vice President Dick Cheney and his top aides) ferociously resisting any alterations to the program. Ultimately, adjustments along the lines urged by Goldsmith and Attorney General John Ashcroft were made; the adjusted program continued to operate until it was exposed by the New York Times in December of 2005. With this history as the backdrop, it is markedly fascinating to read Goldsmith’s descriptions of how government monitors cyberthreats and how future cybersecurity measures can be designed to withstand even rigorous Fourth Amendment scrutiny.
Although many of the essays construct hypothetical scenarios as a means of illustrating the dangerous legal directions in which emerging technologies can lead, the book is satisfyingly studded with real-life examples and careful research. The overall tone and language of the book will appeal to advanced scholars, yet at the same time the book is certainly accessible to upper-level undergraduates. Given that younger generations have grown up with these technologies seamlessly interwoven into their lives, it is likely that they have not carefully pondered the larger legal and constitutional ramifications of their use. Having never known a world without the internet, cell phones, and pervasive surveillance cameras, they probably have an incomplete picture of the irrevocable alternations these devices have produced. For these readers especially, then, Constitution 3.0 is an important assignment.
It is a well-cited irony that Norma McCorvey, the “Jane Roe” of Roe v. Wade, has become a prominent anti-abortion activist urging for the abandonment of the precedent that her case established. It is equally ironic that a crucial feature of her case – the protective virtues of anonymity – is today being similarly discredited and threatened. Constitution 3.0 explains how we have arrived at that destination, and why we may not want to stay there.
Mills, Jon L. 2008. Privacy: The Lost Right. Oxford: Oxford University Press
Nunziato, Dawn C. 2009. Virtual Freedom: Net Neutrality and Free Speech in the Internet Age. Stanford: Stanford University Press.
Sunstein, Cass. 2007. Republic.Com 2.0. Princeton: Princeton University Press.
Warren, Samuel, and Louis Brandeis. 1890. “The Right to Privacy,” Harvard Law Review 4:193.CASES CITED
Olmstead v. United States, 277 U.S. 438 (1928).
Reno v. American Civil Liberties Union, 510 U.S. 844 (1997).
Roe v. Wade, 410 U.S. 113 (1973).
Copyright by the Author, Steven B. Lichtman.