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LEGAL OVERVIEW
THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS
Advances in computer technology have brought us to a new frontier in
communications, where the law is largely unsettled and woefully
inadequate to deal with the problems and challenges posed by electronic
technology. How the law develops in this area will have a direct impact
on the electronic communications experiments and innovations being
devised day in and day out by millions of citizens on both a large and
small scale from coast to coast. Reasonable balances have to be struck
among:
% traditional civil liberties
% protection of intellectual property
% freedom to experiment and innovate
% protection of the security and integrity of computer
systems from improper governmental and private
interference.
Striking these balances properly will not be easy, but if they are
struck too far in one direction or the other, important social and legal
values surely will be sacrificed.
Helping to see to it that this important and difficult task is done
properly is a major goal of the Electronic Frontier Foundation. It is
critical to assure that these lines are drawn in accordance with the
fundamental constitutional rights that have protected individuals from
government excesses since our nation was founded -- freedom of speech,
press, and association, the right to privacy and protection from
unwarranted governmental intrusion, as well as the right to procedural
fairness and due process of law.
The First Amendment
The First Amendment to the United States Constitution prohibits the
government from "abridging the freedom of speech, or of the press," and
guarantees freedom of association as well. It is widely considered to
be the single most important of the guarantees contained in the Bill of
Rights, since free speech and association are fundamental in securing
all other rights.
The First Amendment throughout history has been challenged by every
important technological development. It has enjoyed only a mixed record
of success. Traditional forms of speech -- the print media and public
speaking -- have enjoyed a long and rich history of freedom from
governmental interference. The United States Supreme Court has not
afforded the same degree of freedom to electronic broadcasting,
however.
Radio and television communications, for example, have been subjected to
regulation and censorship by the Federal Communications Commission
(FCC), and by the Congress. The Supreme Court initially justified
regulation of the broadcast media on technological grounds -- since
there were assumed to be a finite number of radio and television
frequencies, the Court believed that regulation was necessary to prevent
interference among frequencies and to make sure that scarce resources
were allocated fairly. The multiplicity of cable TV networks has
demonstrated the falsity of this "scarce resource" rationale, but the
Court has expressed a reluctance to abandon its outmoded approach
without some signal from Congress or the FCC.
Congress has not seemed overly eager to relinquish even
counterproductive control over the airwaves. Witness, for example,
legislation and rule-making in recent years that have kept even
important literature, such as the poetry of Allen Ginsberg, from being
broadcast on radio because of language deemed "offensive" to regulators.
Diversity and experimentation have been sorely hampered by these rules.
The development of computer technology provides the perfect opportunity
for lawmakers and courts to abandon much of the distinction between the
print and electronic media and to extend First Amendment protections to
all communications regardless of the medium. Just as the multiplicity
of cable lines has rendered obsolete the argument that television has to
be regulated because of a scarcity of airwave frequencies, so has the
ready availability of virtually unlimited computer communication
modalities made obsolete a similar argument for harsh controls in this
area. With the computer taking over the role previously played by the
typewriter and the printing press, it would be a constitutional disaster
of major proportions if the treatment of computers were to follow the
history of regulation of radio and television, rather than the history
of freedom of the press.
To the extent that regulation is seen as necessary and proper, it should
foster the goal of allowing maximum freedom, innovation and
experimentation in an atmosphere where no one's efforts are sabotaged by
either government or private parties. Regulation should be limited by
the adage that quite aptly describes the line that separates reasonable
from unreasonable regulation in the First Amendment area: "Your liberty
ends at the tip of my nose."
As usual, the law lags well behind the development of technology. It is
important to educate lawmakers and judges about new technologies, lest
fear and ignorance of the new and unfamiliar, create barriers to free
communication, expression, experimentation, innovation, and other such
values that help keep a nation both free and vigorous.
The Fourth Amendment
The Fourth Amendment guarantees that "the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
In short, the scope of the search has to be as narrow as
possible, and there has to be good reason to believe that the
search will turn up evidence of illegal activity.
The meaning of the Fourth Amendment's guarantee has evolved over time in
response to changing technologies. For example, while the Fourth
Amendment was first applied to prevent the government from trespassing
onto private property and seizing tangible objects, the physical
trespass rationale was made obsolete by the development of electronic
eavesdropping devices which permitted the government to "seize" an
individual's words without ever treading onto that person's private
property. To put the matter more concretely, while the drafters of the
First Amendment surely knew nothing about electronic databases, surely
they would have considered one's database to be as sacrosanct as, for
example, the contents of one's private desk or filing cabinet.
The Supreme Court responded decades ago to these types of technological
challenges by interpreting the Fourth Amendment more broadly to prevent
governmental violation of an individual's reasonable expectation of
privacy, a concept that transcended the narrow definition of one's
private physical space. It is now well established that an individual
has a reasonable expectation of privacy, not only in his or her home
and business, but also in private communications. Thus, for example:
% Government wiretapping and electronic eavesdropping are now limited
by state and federal statutes enacted to effectuate and even to expand
upon Fourth Amendment protections.
% More recently, the Fourth Amendment has been used, albeit with
limited success, to protect individuals from undergoing certain random
mandatory drug testing imposed by governmental authorities.
Advancements in technology have also worked in the opposite direction,
to diminish expectations of privacy that society once considered
reasonable, and thus have helped limit the scope of Fourth Amendment
protections. Thus, while one might once have reasonably expected
privacy in a fenced-in field, the Supreme Court has recently told us
that such an expectation is not reasonable in an age of surveillance
facilitated by airplanes and zoom lenses.
Applicability of Fourth Amendment to computer media
Just as the Fourth Amendment has evolved in response to changing
technologies, so it must now be interpreted to protect the reasonable
expectation of privacy of computer users in, for example, their
electronic mail or electronically stored secrets. The extent to which
government intrusion into these private areas should be allowed, ought
to be debated openly, fully, and intelligently, as the Congress seeks to
legislate in the area, as courts decide cases, and as administrative,
regulatory, and prosecutorial agencies seek to establish their turf.
One point that must be made, but which is commonly misunderstood, is
that the Bill of Rights seeks to protect citizens from privacy invasions
committed by the government, but, with very few narrow exceptions, these
protections do not serve to deter private citizens from doing what the
government is prohibited from doing. In short, while the Fourth
Amendment limits the government's ability to invade and spy upon private
databanks, it does not protect against similar invasions by private
parties. Protection of citizens from the depredations of other citizens
requires the passage of privacy legislation.
The Fifth Amendment
The Fifth Amendment assures citizens that they will not "be deprived of
life, liberty, or property, without due process of law" and that private
property shall not "be taken for public use without just compensation."
This Amendment thus protects both the sanctity of private property and
the right of citizens to be proceeded against by fair means before they
may be punished for alleged infractions of the law.
One aspect of due process of law is that citizens not be prosecuted for
alleged violations of laws that are so vague that persons of reasonable
intelligence cannot be expected to assume that some prosecutor will
charge that his or her conduct is criminal. A hypothetical law, for
example, that makes it a crime to do "that which should not be done",
would obviously not pass constitutional muster under the Fifth
Amendment. Yet the application of some existing laws to new situations
that arise in the electronic age is only slightly less problematic than
the hypothetical, and the Electronic Frontier Foundation plans to
monitor the process by which old laws are modified, and new laws are
crafted, to meet modern situations.
One area in which old laws and new technologies have already clashed and
are bound to continue to clash, is the application of federal criminal
laws against the interstate transportation of stolen property. The
placement on an electronic bulletin board of arguably propriety computer
files, and the "re-publication" of such material by those with access to
the bulletin board, might well expose the sponsor of the bulletin board
as well as all participants to federal felony charges, if the U.S.
Department of Justice can convince the courts to give these federal laws
a broad enough reading. Similarly, federal laws protecting against
wiretapping and electronic eavesdropping clearly have to be updated to
take into account electronic bulletin board technology, lest those who
utilize such means of communication should be assured of reasonable
privacy from unwanted government surveillance.
Summary
The problem of melding old but still valid concepts of constitutional
rights, with new and rapidly evolving technologies, is perhaps best
summed up by the following observation. Twenty-five years ago there was
not much question but that the First Amendment prohibited the government
from seizing a newspaper's printing press, or a writer's typewriter, in
order to prevent the publication of protected speech. Similarly, the
government would not have been allowed to search through, and seize,
one's private papers stored in a filing cabinet, without first
convincing a judge that probable cause existed to believe that evidence
of crime would be found.
Today, a single computer is in reality a printing press, typewriter, and
filing cabinet (and more) all wrapped up in one. How the use and output
of this device is treated in a nation governed by a Constitution that
protects liberty as well as private property, is a major challenge we
face. How well we allow this marvelous invention to continue to be
developed by creative minds, while we seek to prohibit or discourage
truly abusive practices, will depend upon the degree of wisdom that
guides our courts, our legislatures, and governmental agencies entrusted
with authority in this area of our national life.
For further information regarding The Bill of Rights please contact:
Harvey Silverglate
Silverglate & Good
89 Broad Street, 14th Floor
Boston, MA 02110
617/542-6663
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