October 9, 2011 The Constitution and Technology

In (belated) honor of Constitution Day I would like to examine how advances in Technology have affected the interpretation of the Constitution in terms of the court cases that have made it to the Supreme Court. I will be using two examples cited by  Laurence Tribe, Tyler Professor of Constitutional Law, Harvard Law School in his 1991 paper: 

"The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier" (http://epic.org/free_speech/tribe.html) Although the paper is 20 years old and some of his examples of technology will seem dated, his reasoning and insights are not. 

Tribe uses two Supreme Court cases which center on the Fourth and Sixth Amendments to make the case that we are inconsistent in our consideration of technological effects on our values(freedom, truth, justice etc). 

The Fourth Amendment states: “'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.”

The Sixth Amendment contains the  “Confrontation Clause” which states:  “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him”.

 Tribe discusses “Maryland V. Craig” where the Supreme Court upheld the power of the state to try an alleged child abuser with the accuser not in the courtroom but by means of a one-way closed-circuit TV  to spare the child trauma. The decision to allow a new technology that was unknown to the framers of the Constitution was based on a cost-benefit analysis taking into account the three stakeholders: the accuser, the defendant and society at large. But what is the intent of the Confrontation clause? Is it to make the accuser more likely to tell the truth when confronted face-to-face with the accused? Or is it for identification purposes only? Tribe agrees with dissenting Justices that the accused rights were abused and that the introduction of  new information technology had the effect of withholding the protections of the Bill of Rights .

The Fourth amendment case Tribe presents is “Olmstead V. US” . Without a warrant, federal agents wiretapped Roy Olmstead’s phone to gather evidence against him for bootlegging during Prohibition. Although wiretapping was illegal under state law (Washington), the evidence was allowed and Olmstead convicted. The Supreme Court ruled that no “search and seizure” occurred because the Fourth Amendment “itself shows that search is to be of material things – the person, the house, his papers or his effects” and thus “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.”  Judge Brandeis, in a dissenting opinion, argued that the Fourth Amendment should extend to electronic communications in it protection. He pointed out that when a phone is tapped, the control of personal information at both ends of the connection are compromised --- not just the suspect’s privacy. In this fashion, “the tapping of one man’s telephone  line involves the tapping of the telephone of every other person whom he may call, or who may call him.”

In this case, Tribe once again agrees with the dissenters; however, Olmstead was overturned in 1967 (Katz V. US)  and it was Tribe who, as a law clerk to Justice  Potter Stewart helped to write the majority opinion which included the famous phrase, “The Fourth Amendment protects people, not places.”). But this privacy issue continues to bubble and befuddle: in this session, the Supreme Court will review whether the government, without a court warrant, may track suspects’ movements by hiding a GPS device on their vehicle.

Tribe sums up, “… “Olmstead” mindlessly read a new technology out of the Constitution, while “Craig” absent-mindedly read a new technology into the Constitution. But both decisions had the structural effect of withholding the protections of the Bill of Rights from threats made possible by new information technologies.”

In other words, Technology is a double-edged sword and we must be mindful of its use.

Can’t argue with that.