++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 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 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Downloaded From P-80 International Information Systems 304-744-2253