Constitution 3.0

Constitution 3.0: Freedom and Technological Change

Jeffrey Rosen
Benjamin Wittes
Copyright Date: 2011
Pages: 271
https://www.jstor.org/stable/10.7864/j.ctt6wpdhr
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  • Book Info
    Constitution 3.0
    Book Description:

    At the beginning of the twenty-first century, breathtaking changes in technology are posing stark challenges to our constitutional values. From free speech to privacy, from liberty and personal autonomy to the right against self-incrimination, basic constitutional principles are under stress from technological advances unimaginable even a few decades ago, let alone during the founding era. In this provocative collection, America's leading scholars of technology, law, and ethics imagine how to translate and preserve constitutional and legal values at a time of dizzying technological change.

    Constitution 3.0explores some of the most urgent constitutional questions of the near future. Will privacy become obsolete, for example, in a world where ubiquitous surveillance is becoming the norm? Imagine that Facebook and Google post live feeds from public and private surveillance cameras, allowing 24/7 tracking of any citizen in the world. How can we protect free speech now that Facebook and Google have more power than any king, president, or Supreme Court justice to decide who can speak and who can be heard? How will advanced brain-scan technology affect the constitutional right against self-incrimination? And on a more elemental level, should people have the right to manipulate their genes and design their own babies? Should we be allowed to patent new forms of life that seem virtually human? The constitutional challenges posed by technological progress are wide-ranging, with potential impacts on nearly every aspect of life in America and around the world.

    The authors include Jamie Boyle, Duke Law School; Eric Cohen and Robert George, Princeton University; Jack Goldsmith, Harvard Law School; Orin Kerr, George Washington University Law School; Lawrence Lessig, Harvard Law School; Stephen Morse, University of Pennsylvania Law School; John Robertson, University of Texas Law School; Christopher Slobogin, Vanderbilt Law School; O. Carter Snead, Notre Dame Law School; Jeffrey Rosen, George Washington University Law School; Benjamin Wittes, Brookings Institution; Tim Wu, Columbia Law School; and Jonathan Zittrain, Harvard Law School.

    eISBN: 978-0-8157-2213-7
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. 1 Introduction: Technological Change and the Constitutional Future
    (pp. 1-8)
    JEFFREY ROSEN

    At the beginning of the twenty-first century, changes in technology are posing stark challenges to our legal and constitutional values. From free speech to privacy, from liberty and personal autonomy to the privilege against self-incrimination, from the definition of personhood to the state’s authority to protect security, basic constitutional principles are under stress from technological advances unimaginable even a few decades ago, let alone in the founding era. Consider a few cases that might plausibly confront the Supreme Court in the year 2025:

    In response to popular demand, Facebook decides to post live feeds from public and private surveillance cameras...

  5. PART ONE THE FUTURE OF SURVEILLANCE
    • 2 Is the Fourth Amendment Relevant in a Technological Age?
      (pp. 11-36)
      CHRISTOPHER SLOBOGIN

      The year is 2015. Officer Jones, a New York City police officer, stops a car because it has a broken taillight. The driver of the car turns out to be a man named Ahmad Abdullah. Abdullah’s license and registration check out, but he seems nervous, at least to Jones. Jones goes back to his squad car and activates his Raytheon electromagnetic pulse scanner, which can scan the car for weapons and bombs. Nothing shows up on the screen. Nonetheless, he attaches a GPS (global positioning system) device known as a Q-ball underneath the rear bumper as he pretends to be...

    • 3 Use Restrictions and the Future of Surveillance Law
      (pp. 37-46)
      ORIN S. KERR

      The year 2030 was the year of the subway terror attack threat. As far back as the 2004 Madrid subway bombing, terrorists had seen how a single modest subway attack could wreak havoc on a busy city center. Sporadic attacks continued in the first three decades of the twenty-first century, including unsuccessful attacks on the New York subway in 2018 and the Washington, D.C., Metro system in 2023.

      But 2030 changed everything. On January 1, 2030, Abdullah Omar, the leader of the Brotherhood, the reincarnation of the earlier al Qaeda network, made an ominous announcement: The Brotherhood had a dozen...

    • 4 Cyberthreat, Government Network Operations, and the Fourth Amendment
      (pp. 47-66)
      JACK GOLDSMITH

      Many corporations have intrusion prevention systems on their computers’ connections to the Internet. These systems scan the contents and metadata of incoming communications for malicious code that might facilitate a cyber attack and take steps to thwart it. The U.S. government will have a similar system in place soon. But public and private intrusion prevention systems are uncoordinated, and most firms and individual users lack such systems. This is one reason why the national communications network is swarming with known malicious cyber agents, raising the likelihood of an attack on a critical infrastructure system that could cripple our economic or...

  6. PART TWO THE FUTURE OF FREE EXPRESSION AND PRIVACY
    • 5 The Deciders: Facebook, Google, and the Future of Privacy and Free Speech
      (pp. 69-82)
      JEFFREY ROSEN

      It was 2025 when Facebook decided to post live feeds from public and private surveillance cameras, so they could be searched online. The decision hardly came as a surprise. Ever since Facebook passed the 500 million–member mark in 2010, it found increasing consumer demand for applications that allowed users to access surveillance cameras with publicly accessible IP addresses. (Initially, live feeds to cameras on Mexican beaches were especially popular.) But in the mid-2020s, popular demand for live surveillance camera feeds was joined by arguments from the U.S. government that an open-circuit television network would be invaluable in tracking potential...

    • 6 Is Filtering Censorship? The Second Free Speech Tradition
      (pp. 83-99)
      TIM WU

      Mention “speech” in America, and most people with legal training or an interest in the Constitution think immediately of the First Amendment and its champion, the U.S. Supreme Court. The great story of free speech in America is the pamphleteer peddling an unpopular cause, defended by courts against arrest and the burning of his materials. That is the central narrative taught in law schools, based loosely on Justice Holmes’s dissenting opinions¹ and Harvard law professor Zechariah Chafee’s 1919 seminal paper, “Freedom of Speech in Wartime.” Chafee wrote:

      The true meaning of freedom of speech seems to be this. One of...

    • 7 A Mutual Aid Treaty for the Internet
      (pp. 100-110)
      JONATHAN ZITTRAIN

      By 2030 all of humanity’s books will be online. Google’s ambitious book scanning project—or something like it—will by then have generated high-quality, searchable scans of nearly every book available in the world. These scans will be available online to library partners and individual users with certain constraints—what those will be, we do not know yet. It will be a library in the cloud, far larger than any real-world library could hope to be. It will make no sense for a library to store thousands of physical books in its basement. Rather, under a Google Books plan, there...

  7. PART THREE THE FUTURE OF NEUROLAW
    • 8 Neuroscience and the Future of Personhood and Responsibility
      (pp. 113-129)
      STEPHEN J. MORSE

      Collera, a twenty-eight-year-old man with a life-long history of aggressive behavior, including assault and verbal abuse, is driving his large SUV behind a slow-moving vehicle on a narrow road, with no room to pass. He honks and honks, but the driver in front neither speeds up nor pulls off the road to let Collera pass. Collera starts to curse vehemently and pulls dangerously close to the slower vehicle. Collera’s passenger warns that he is taking a very serious risk. Collera finally announces in a fury that he is going to kill the [expletive deleted] in front of him. He allows...

    • 9 Cognitive Neuroscience and the Future of Punishment
      (pp. 130-152)
      O. CARTER SNEAD

      The jurors filed into the courtroom and took their seats in the jury box. It had been a long and emotionally draining couple of weeks. The guilt phase of the trial was relatively short—there was no real question of fact as to whether the defendant had murdered the two victims. The main contested questions—the defendant’s legal competence, sanity, and capacity to formulate the requisite mens rea for first-degree murder—were also not terribly difficult to decide. Though clearly emotionally troubled and probably even mentally ill, the defendant easily met the (surprisingly low) cognitive and volitional standards for guilt....

  8. PART FOUR GENETIC ENGINEERING AND THE FUTURE OF CONSTITUTIONAL PERSONHOOD
    • 10 Reproductive Rights and Reproductive Technology in 2030
      (pp. 155-176)
      JOHN A. ROBERTSON

      Larry, a pediatrician, and David, a wills lawyer, meet in their late twenties, fall in love, and marry on June 15, 2025, in Indianapolis. Three years later they take in a foster child for eight months and find the experience rewarding. By 2030 they are well-enough established in their careers to think about having their own child. Larry’s twenty-four-year-old sister, Marge, has agreed to donate her eggs, and David will provide the sperm, so that each partner will have a genetic connection with the child. They work with an agency that matches couples with gestational surrogates and settle on Janice,...

    • 11 The Problems and Possibilities of Modern Genetics: A Paradigm for Social, Ethical, and Political Analysis
      (pp. 177-193)
      ERIC COHEN and ROBERT P. GEORGE

      Imagine a future in which any person, man or woman, could engineer a child as a genetic replica of himself or herself. Or in which a child could be the biological fusion of the genes of two men or two women. Or in which all individuals could know, with reasonable certainty, which diseases they would suffer in the months, years, or even decades ahead. Would this new genetic age constitute a better world, or a deformed one? The triumph of modern civilization, or the realization of modernity’s dark side?

      With a subject as large and as profound as modern genetics,...

    • 12 Endowed by Their Creator? The Future of Constitutional Personhood
      (pp. 194-213)
      JAMES BOYLE

      Imagine two entities. Hal is a computer-based artificial intelligence, the result of years of development of self-evolving neural networks. While his programmers provided the hardware, the structure of Hal’s processing networks is ever changing, evolving according to basic rules laid down by his creators. Success according to various criteria—speed of operation, ability to solve difficult tasks such as facial recognition and the identification of emotional states in humans—means that the networks are given more computer resources and allowed to “replicate.” A certain percentage of randomized variation is deliberately allowed in each new generation of networks. Most fail, but...

    • 13 Innovation’s Darker Future: Biosecurity, Technologies of Mass Empowerment, and the Constitution
      (pp. 214-242)
      BENJAMIN WITTES

      Using gene-splicing equipment available online and other common laboratory equipment and materials, a molecular biology graduate student undertakes a secret project to recreate the smallpox virus. Not content merely to bring back an extinct virus of which the general population is now largely naïve, he uses public source material to enhance the virus’s lethality, enabling it to infect even those whom the government rushes to immunize. His activities raise no eyebrows at his university lab, where synthesizing and modifying complex genomes is even more commonplace and mundane in 2025 than it was in 2011. While time consuming, the task is...

    • 14 Epilogue: Translating and Transforming the Future
      (pp. 243-254)
      LAWRENCE LESSIG

      There is a way we academics talk about constitutional interpretation that suggests it to be more than it turns out to be. We speak of it as if the Court decides cases through elaborate (sometimes more, sometimes less) chains of reasoning. As if it were a Socratic dialogue, with the author inviting the reader to the seven steps necessary to see why the conclusion follows.

      But constitutional interpretation is much more pedestrian and much more contingent. Whether or not the justices are reaching for particular results, opinions rarely move far beyond what the context of the decision offers up. There...

  9. Contributors
    (pp. 255-260)
  10. Index
    (pp. 261-271)
  11. Back Matter
    (pp. 272-274)