The Constitution in Cyberspace, Komputer, More Hacking
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Laurence H. Tribe, "The Constitution in Cyberspace"PREPARED REMARKSKEYNOTE ADDRESS AT THEFIRST CONFERENCE ON COMPUTERS, FREEDOM & PRIVACYCopyright, 1991, Jim Warren & Computer Professionals for Social ResponsibilityAll rights to copy the materials contained herein are reserved, except ashereafter explicitly licensed and permitted for anyone:Anyone may receive, store and distribute copies of this ASCII-formatcomputer textfile in purely magnetic or electronic form, including oncomputer networks, computer bulletin board systems, computer conferencingsystems, free computer diskettes, and host and personal computers, providedand only provided that:(1) this file, including this notice, is not altered in any manner, and(2) no profit or payment of any kind is charged for its distribution, otherthan normal online connect-time fees or the cost of the magnetic media, and(3) it is not reproduced nor distributed in printed or paper form, nor onCD ROM, nor in any form other than the electronic forms described abovewithout prior written permission from the copyright holder.Arrangements to publish printed Proceedings of the First Conference onComputers, Freedom & Privacy are near completion. Audiotape and videotapeversions are also being arranged.A later version of this file on the WELL (Sausalito, California) willinclude ordering details. Or, for details, or to propose other distributionalternatives, contact Jim Warren, CFP Chair,345 Swett Rd., Woodside CA 94062;voice:(415)851-7075; fax:(415)851-2814; e-mail:jwarren@well.sf.ca.us.[4/19/91][ These were the author's *prepared* remarks.A transcript of Professor Tribe's March 26th comments at the Conference(which expanded slightly on several points herein) will be uploaded onto theWELL as soon as it is transcribed from the audio tapes and proofed againstthe audio and/or videotapes.]"The Constitution in Cyberspace:Law and Liberty Beyond the Electronic Frontier"by Laurence H. TribeCopyright 1991 Laurence H. Tribe,Tyler Professor of Constitutional Law,Harvard Law School.Professor Tribe is the author, most recently, of"On Reading the Constitution" (Harvard University Press,Cambridge, MA, 1991).IntroductionMy topic is how to "map" the text and structure of ourConstitution onto the texture and topology of "cyberspace". That'sthe term coined by cyberpunk novelist William Gibson, which manynow use to describe the "place" -- a place without physical wallsor even physical dimensions -- where ordinary telephoneconversations "happen," where voice-mail and e-mail messages arestored and sent back and forth, and where computer-generatedgraphics are transmitted and transformed, all in the form ofinteractions, some real-time and some delayed, among countlessusers, and between users and the computer itselfSome use the "cyberspace" concept to designate fantasy worldsor "virtual realities" of the sort Gibson described in his novel*Neuromancer*, in which people can essentially turn their minds intocomputer peripherals capable of perceiving and exploring the datamatrix. The whole idea of "virtual reality," of course, strikes aslightly odd note. As one of Lily Tomlin's most memorablecharacters once asked, "What's reality, anyway, but a collectivehunch?" Work in this field tends to be done largely by people whoshare the famous observation that reality is overrated!However that may be, "cyberspace" connotes to some users thesorts of technologies that people in Silicon Valley (like JaronLanier at VPL Research, for instance) work on when they try todevelop "virtual racquetball" for the disabled, computer-aideddesign systems that allow architects to walk through "virtualbuildings" and remodel them *before* they are built, "virtualconferencing" for business meetings, or maybe someday even "virtualday care centers" for latchkey children. The user snaps on a pairof goggles hooked up to a high-powered computer terminal, puts ona special set of gloves (and perhaps other gear) wired into thesame computer system, and, looking a little bit like Darth Vader,pretty much steps into a computer-driven, drug-free, 3-dimensional,interactive, infinitely expandable hallucination complete withsight, sound and touch -- allowing the user literally to movethrough, and experience, information.I'm using the term "cyberspace" much more broadly, as manyhave lately. I'm using it to encompass the full array ofcomputer-mediated audio and/or video interactions that are alreadywidely dispersed in modern societies -- from things as ubiquitousas the ordinary telephone, to things that are still coming on-linelike computer bulletin boards and networks like Prodigy, or likethe WELL ("Whole Earth 'Lectronic Link"), based here in SanFrancisco. My topic, broadly put, is the implications of thatrapidly expanding array for our constitutional order. It is acyberspace, either get bent out of shape or fade out altogether.The question, then, becomes: when the lines along which ourConstitution is drawn warp or vanish, what happens to theConstitution itself?Setting the StageTo set the stage with a perhaps unfamiliar example, considera decision handed down nine months ago, *Maryland v. Craig*, wherethe U.S. Supreme Court upheld the power of a state to put analleged child abuser on trial with the defendant's accusertestifying not in the defendant's presence but by one-way,closed-circuit television. The Sixth Amendment, which of courseantedated television by a century and a half, says: "In allcriminal prosecutions, the accused shall enjoy the right . . . tobe confronted with the witnesses against him." Justice O'Connorwrote for a bare majority of five Justices that the state'sprocedures nonetheless struck a fair balance between costs to theaccused and benefits to the victim and to society as a whole.Justice Scalia, joined by the three "liberals" then on the Court(Justices Brennan, Marshall and Stevens), dissented from thatcost-benefit approach to interpreting the Sixth Amendment. Hewrote:The Court has convincingly proved that the Marylandprocedure serves a valid interest, and gives thedefendant virtually everything the Confrontation Clauseguarantees (everything, that is, except confrontation).I am persuaded, therefore, that the Maryland procedure isvirtually constitutional. Since it is not, however,actually constitutional I [dissent].Could it be that the high-tech, closed-circuit TV context,almost as familiar to the Court's youngest Justice as to his evenyounger law clerks, might've had some bearing on Justice Scalia'ssly invocation of "virtual" constitutional reality? Even ifJustice Scalia wasn't making a pun on "virtual reality," and Isuspect he wasn't, his dissenting opinion about the ConfrontationClause requires *us* to "confront" the recurring puzzle of howconstitutional provisions written two centuries ago should beconstrued and applied in ever-changing circumstances.Should contemporary society's technology-driven cost-benefitfixation be allowed to water down the old-fashioned value of directconfrontation that the Constitution seemingly enshrined as basic?I would hope not. In that respect, I find myself in completeagreement with Justice Scalia.But new technological possibilities for seeing your accuserclearly without having your accuser see you at all -- possibilitiesfor sparing the accuser any discomfort in ways that the accusercouldn't be spared before one-way mirrors or closed-circuit TVswere developed -- *should* lead us at least to ask ourselves whether*two*-way confrontation, in which your accuser is supposed to be madeuncomfortable, and thus less likely to lie, really *is* the corevalue of the Confrontation Clause. If so, "virtual" confrontationshould be held constitutionally insufficient. If not -- if thecore value served by the Confrontation Clause is just the abilityto *watch* your accuser say that you did it -- then "virtual"confrontation should suffice. New technologies should lead us tolook more closely at just *what values* the Constitution seeks topreserve. New technologies should *not* lead us to react reflexively*either way* -- either by assuming that technologies the Framersdidn't know about make their concerns and values obsolete, or byassuming that those new technologies couldn't possibly provide newways out of old dilemmas and therefore should be ignoredaltogether.The one-way mirror yields a fitting metaphor for the task weconfront. As the Supreme Court said in a different context severalyears ago, "The mirror image presented [here] requires us to stepthrough an analytical looking glass to resolve it." (*NCAA v.Tarkanian*, 109 S. Ct. at 462.) The world in which the SixthAmendment's Confrontation Clause was written and ratified was aworld in which "being confronted with" your accuser *necessarily*meant a simultaneous physical confrontation so that your accuserhad to *perceive* you being accused by him. Closed-circuittelevision and one-way mirrors changed all that by *decoupling* thosetwo dimensions of confrontation, marking a shift in the conditions ofinformation-transfer that is in many ways typical of cyberspace.What does that sort of shift mean for constitutional analysis?A common way to react is to treat the pattern as it existed *prior*to the new technology (the pattern in which doing "A" necessarily*included* doing "B") as essentially arbitrary or accidental. Takingthis approach, once the technological change makes it possible todo "A" *without* "B" -- to see your accuser without having him or hersee you, or to read someone's mail without her knowing it, toswitch examples -- one concludes that the "old" Constitution'sinclusion of "B" is irrelevant; one concludes that it is enough forthe government to guarantee "A" alone....
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