The Constitution and Technology: How Far is Too Far?

Although we are early in 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 Constitution 3.0, we asked a group of provocative thinkers to imagine the ways in which technological change will challenge our constitutional and legal values in the year 2030.

Will privacy become obsolete, for example, in a world where ubiquitous surveillance is becoming the norm? Imagine that Facebook and Google post live feeds to public and private surveillance cameras, allowing 24/7 tracking of any citizen in the world. How can we protect free speech now that Facebook, Google, and other private intermediaries 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? And we then asked our contributors to propose ways of translating and preserving constitutional values in the year 2030, in the face of dizzying technological change.

The launch event for the book, held on December 13 at Brookings, provoked a vigorous conversation that mirrored the debates in the book itself. My co-editor Ben Wittes and I invited Tim Wu and Carter Snead to discuss their contributions to Constitution 3.0 and to debate a question the U.S. Supreme Court is now considering: should the police be allowed, without a valid warrant, to secretly put a Global Positioning System device on the bottom of a car of a suspected drug dealer in order to track his movements, 24/7, for a month? The panelists disagreed about the proper outcome: Tim Wu argued that Google and Facebook now have more power over our private data than any police agent or Supreme Court justice, and yet the Constitution, as currently interpreted, restricts private corporations far less rigorously than it constrains the police. Carter Snead insisted that it’s not enough for judges to predict how much privacy people actually expect in the face of new technologies; instead, they need to identify how much privacy we should demand in order to live in a free society rather than a police state. Benjamin Wittes dissented, arguing that Congress, rather than the Courts, should protect the privacy of our geo-locational information, whether collected by GPS devices or stored on cell phones. And I channeled the spirit of the patron saint of Constitution 3.0, Justice Louis Brandeis. Brandeis would have been impatient, I think, with the government’s statements that we have no expectations of privacy in public; instead, Brandeis would have insisted on translating the constitutional Framers’ prohibition on unreasonable searches and seizures into the 21st century. Now that GPS devices and cell phones can reveal far more about our movements, thoughts, and activities outside of the home than old style home break-ins could have revealed in the 18th century, Brandeis might have insisted that long term surveillance is unreasonable without a warrant.

If you watch the webcast, you’ll get a sense of debate among the panelists about who is best equipped to protect constitutional values in the face of new technologies: the Supreme Court, Congress, administrative agencies, private companies like Google and Facebook, political activism groups, or some combination of all of the above. Regardless of where you come out on these issues, I hope you’ll find the project of trying to imagine the constitutional challenges of the next few decades as challenging and rewarding as we did in writing the book.