Топик: КОНСТИТУЦИЯ В КИБЕРПРОСТРАНСТВЕ: ЗАКОН И СВОБОДА ЗА ЭЛЕКТРОННОЙ ГРАНИЦЕЙ (english/russian)

руководитель Першин Ю.Ю.

Волгоград

1998

The Constitution in Cyberspace:

Law and Liberty Beyond the Electronic Frontier

Introduction

My topic is how to "map" the text and structure of our Constitution onto the texture and topology of "cyberspace". That's the term coined by cyberpunk novelist William Gibson, which many now use to describe the "place" — a place without physical walls or even physical dimensions — where ordinary telephone conversations "happen," where voice–mail and e-mail messages are stored and sent back and forth, and where computer-generated graphics are transmitted and transformed, all in the form of interactions, some real-time and some delayed, among countless users, and between users and the computer itself.

Some use the "cyberspace" concept to designate fantasy worlds or "virtual realities" of the sort Gibson described in his novel “Neuromancer”, in which people can essentially turn their minds into computer peripherals capable of perceiving and exploring the data matrix. The whole idea of "virtual reality," of course, strikes a slightly odd note. As one of Lily Tomlin's most memorable characters once asked, "What's reality, anyway, but a collective hunch?" Work in this field tends to be done largely by people who share the famous observation that reality is overrated!

However that may be, "cyberspace" connotes to some users the sorts of technologies that people in Silicon Valley (like Jaron Lanier at VPL Research, for instance) work on when they try to develop "virtual racquetball" for the disabled, computer-aided design systems that allow architects to walk through "virtual buildings" and remodel them before they are built, "virtual conferencing" for business meetings, or maybe someday even "virtual day care centers" for latchkey children. The user snaps on a pair of goggles hooked up to a high-powered computer terminal, puts on a special set of gloves (and perhaps other gear) wired into the same 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 with sight, sound and touch — allowing the user literally to move through, and experience, information.

I'm using the term "cyberspace" much more broadly, as many have lately. I'm using it to encompass the full array of computer-mediated audio and/or video interactions that are already widely dispersed in modern societies — from things as ubiquitous as the ordinary telephone, to things that are still coming on-line like computer bulletin boards and networks like Prodigy, or like the WELL ("Whole Earth 'Lectronic Link"), based here in San Francisco. My topic, broadly put, is the implications of that rapidly expanding array for our constitutional order. It is a constitutional order that tends to carve up the social, legal, and political universe along lines of "physical place" or "temporal proximity." The critical thing to note is that these very lines, in cyberspace, either get bent out of shape or fade out altogether. The question, then, becomes: when the lines along which our Constitution is drawn warp or vanish, what happens to the Constitution itself?

Setting the Stage

To set the stage with a perhaps unfamiliar example, consider a decision handed down nine months ago, “Maryland v. Craig”, where the U.S. Supreme Court upheld the power of a state to put an alleged child abuser on trial with the defendant's accuser testifying not in the defendant's presence but by one-way, closed-circuit television. The Sixth Amendment, which of course antedated television by a century and a half, says: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Justice O'Connor wrote for a bare majority of five Justices that the state's procedures nonetheless struck a fair balance between costs to the accused 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 that cost-benefit approach to interpreting the Sixth Amendment. He wrote:

The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually 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 even younger law clerks, might've had some bearing on Justice Scalia's sly invocation of "virtual" constitutional reality? Even if Justice Scalia wasn't making a pun on "virtual reality," and I suspect he wasn't, his dissenting opinion about the Confrontation Clause requires us to "confront" the recurring puzzle of how constitutional provisions written two centuries ago should be construed and applied in ever-changing circumstances.

Should contemporary society's technology-driven cost-benefit fixation be allowed to water down the old-fashioned value of direct confrontation that the Constitution seemingly enshrined as basic? I would hope not. In that respect, I find myself in complete agreement with Justice Scalia.

But new technological possibilities for seeing your accuser clearly without having your accuser see you at all — possibilities for sparing the accuser any discomfort in ways that the accuser couldn't be spared before one-way mirrors or closed-circuit Tvs were developed — should lead us at least to ask ourselves whether two-way confrontation, in which your accuser is supposed to be made uncomfortable, and thus less likely to lie, really is the core value of the Confrontation Clause. If so, "virtual" confrontation should be held constitutionally insufficient. If not — if the core value served by the Confrontation Clause is just the ability to watch your accuser say that you did it — then "virtual" confrontation should suffice. New technologies should lead us to look more closely at just what values the Constitution seeks to preserve. New technologies should not lead us to react reflexively either way — either by assuming that technologies the Framers didn't know about make their concerns and values obsolete, or by assuming that those new technologies couldn't possibly provide new ways out of old dilemmas and therefore should be ignored altogether.

The one-way mirror yields a fitting metaphor for the task we confront. As the Supreme Court said in a different context several years ago, "The mirror image presented [here] requires us to step through an analytical looking glass to resolve it." (“NCAA v. Tarkanian”, 109 S. Ct. at 462.) The world in which the Sixth Amendment's Confrontation Clause was written and ratified was a world in which "being confronted with" your accuser necessarily meant a simultaneous physical confrontation so that your accuser had to perceive you being accused by him. Closed-circuit television and one-way mirrors changed all that by decoupling those two dimensions of confrontation, marking a shift in the conditions of information-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. Taking this approach, once the technological change makes it possible to do "A" without "B" — to see your accuser without having him or her see you, or to read someone's mail without her knowing it, to switch examples — one concludes that the "old" Constitution's inclusion of "B" is irrelevant; one concludes that it is enough for the government to guarantee "A" alone. Sometimes that will be the case; but it's vital to understand that, sometimes, it won't be.

A characteristic feature of modernity is the subordination of purpose to accident — an acute appreciation of just how contingent and coincidental the connections we are taught to make often are. We understand, as moderns, that many of the ways we carve up and organize the world reflect what our social history and cultural heritage, and perhaps our neurological wiring, bring to the world, and not some irreducible "way things are." A wonderful example comes from a 1966 essay by Jorge Louis Borges, "Other Inquisitions." There, the essayist describes the following taxonomy of the animal kingdom, which he purports to trace to an ancient Chinese encyclopedia entitled “The Celestial Emporium of Benevolent Knowledge”:

On those remote pages it is written that animals are divided into:

1. those belonging to the Emperor

2. those that are embalmed

3. those that are trained

4. suckling pigs

5. mermaids

6. fabulous ones

7. stray dogs

8. those that are included in this classification

9. those that tremble as if they were mad

10. innumerable ones

11. those drawn with a very fine camel's hair brush