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

those that, from a great distance, resemble flies

Contemporary writers from Michel Foucault, in “The Archaeology of Knowledge”, through George Lakoff, in “Women, Fire, and Dangerous Things”, use Borges' Chinese encyclopedia to illustrate a range of different propositions, but the core proposition is the supposed arbitrariness — the political character, in a sense — of all culturally imposed categories.

At one level, that proposition expresses a profound truth and may encourage humility by combating cultural imperialism. At another level, though, the proposition tells a dangerous lie: it suggests that we have descended into the nihilism that so obsessed Nietzsche and other thinkers — a world where everything is relative, all lines are up for grabs, all principles and connections are just matters of purely subjective preference or, worse still, arbitrary convention. Whether we believe that killing animals for food is wrong, for example, becomes a question indistinguishable from whether we happen to enjoy eating beans, rice and tofu.

This is a particularly pernicious notion in a era when we pass more and more of our lives in cyberspace, a place where, almost by definition, our most familiar landmarks are rearranged or disappear altogether — because there is a pervasive tendency, even (and perhaps especially) among the most enlightened, to forget that the human values and ideals to which we commit ourselves may indeed be universal and need not depend on how our particular cultures, or our latest technologies, carve up the universe we inhabit. It was my very wise colleague from Yale, the late Art Leff, who once observed that, even in a world without an agreed-upon God, we can still agree — even if we can't "prove" mathematically — that "napalming babies is wrong."

The Constitution's core values, I'm convinced, need not be transmogrified, or metamorphosed into oblivion, in the dim recesses of cyberspace. But to say that they need not be lost there is hardly to predict that they will not be. On the contrary, without further thought and awareness, the danger is clear and present that they will be.

The "event horizon" against which this transformation might occur is already plainly visible:

Electronic trespassers like Kevin Mitnik don't stop with cracking pay phones, but break into NORAD — the North American Defense Command computer in Colorado Springs — not in a “WarGames” movie, but in real life.

Less challenging to national security but more ubiquitously threatening, computer crackers download everyman's credit history from institutions like TRW; start charging phone calls (and more) to everyman's number; set loose "worm" programs that shut down thousands of linked computers; and spread "computer viruses" through everyman's work or home PC.

It is not only the government that feels threatened by "computer crime"; both the owners and the users of private information services, computer bulletin boards, gateways, and networks feel equally vulnerable to this new breed of invisible trespasser. The response from the many who sense danger has been swift, and often brutal, as a few examples illustrate.

Last March, U.S. Secret Service agents staged a surprise raid on Steve Jackson Games, a small games manufacturer in Austin, Texas, and seized all paper and electronic drafts of its newest fantasy role-playing game, “GURPS[reg.t.m.] Cyberpunk”, calling the game a "handbook for computer crime."

By last Spring, up to one quarter of the U.S. Treasury Department's investigators had become involved in a project of eavesdropping on computer bulletin boards, apparently tracking notorious hackers like "Acid Phreak" and "Phiber Optik" through what one journalist dubbed "the dark canyons of cyberspace."

Last May, in the now famous (or infamous) "Operation Sun Devil," more than 150 secret service agents teamed up with state and local law enforcement agencies, and with security personnel from AT&T, American Express, U.S. Sprint, and a number of the regional Bell telephone companies, armed themselves with over two dozen search warrants and more than a few guns, and seized 42 computers and 23,000 floppy discs in 14 cities from New York to Texas. Their target: a loose-knit group of people in their teens and twenties, dubbed the "Legion of Doom."

I am not describing an Indiana Jones movie. I'm talking about America in the 1990s.

The Problem

The Constitution's architecture can too easily come to seem quaintly irrelevant, or at least impossible to take very seriously, in the world as reconstituted by the microchip. I propose today to canvass five axioms of our constitutional law — five basic assumptions that I believe shape the way American constitutional scholars and judges view legal issues — and to examine how they can adapt to the cyberspace age. My conclusion (and I will try not to give away too much of the punch line here) is that the Framers of our Constitution were very wise indeed. They bequeathed us a framework for all seasons, a truly astonishing document whose principles are suitable for all times and all technological landscapes.

Axiom 1:
There is a Vital Difference
Between Government and Private Action

The first axiom I will discuss is the proposition that the Constitution, with the sole exception of the Thirteenth Amendment prohibiting slavery, regulates action by the government rather than the conduct of private individuals and groups. In an article I wrote in the Harvard Law Review in November 1989 on "The Curvature of Constitutional Space," I discussed the Constitution's metaphor-morphosis from a Newtonian to an Einsteinian and Heisenbergian paradigm. It was common, early in our history, to see the Constitution as "Newtonian in design with its carefully counterpoised forces and counterforces, its [geographical and institutional] checks and balances." (103 “Harv. L. Rev.” at 3.)

Indeed, in many ways contemporary constitutional law is still trapped within and stunted by that paradigm. But today at least some post-modern constitutionalists tend to think and talk in the language of relativity, quantum mechanics, and chaos theory. This may quite naturally suggest to some observers that the Constitution's basic strategy of decentralizing and diffusing power by constraining and fragmenting governmental authority in particular has been rendered obsolete.

The institutional separation of powers among the three federal branches of government, the geographical division of authority between the federal government and the fifty state governments, the recognition of national boundaries, and, above all, the sharp distinction between the public and private spheres, become easy to deride as relics of a simpler, pre-computer age. Thus Eli Noam, in the First Ithiel de Sola Pool Memorial Lecture, delivered last October at MIT, notes that computer networks and network associations acquire quasi-governmental powers as they necessarily take on such tasks as mediating their members' conflicting interests, establishing cost shares, creating their own rules of admission and access and expulsion, even establishing their own de facto taxing mechanisms. In Professor Noam's words, "networks become political entities," global nets that respect no state or local boundaries. Restrictions on the use of information in one country (to protect privacy, for example) tend to lead to export of that information to other countries, where it can be analyzed and then used on a selective basis in the country attempting to restrict it. "Data havens" reminiscent of the role played by the Swiss in banking may emerge, with few restrictions on the storage and manipulation of information.

A tempting conclusion is that, to protect the free speech and other rights of users in such private networks, judges must treat these networks not as associations that have rights of their own against the government but as virtual "governments" in themselves — as entities against which individual rights must be defended in the Constitution's name. Such a conclusion would be misleadingly simplistic. There are circumstances, of course, when non-governmental bodies like privately owned "company towns" or even huge shopping malls should be subjected to legislative and administrative controls by democratically accountable entities, or even to judicial controls as though they were arms of the state — but that may be as true (or as false) of multinational corporations or foundations, or transnational religious organizations, or even small-town communities, as it is of computer-mediated networks. It's a fallacy to suppose that, just because a computer bulletin board or network or gateway is something like a shopping mall, government has as much constitutional duty — or even authority — to guarantee open public access to such a network as it has to guarantee open public access to a privately owned shopping center like the one involved in the U.S. Supreme Court's famous “PruneYard Shopping Center” decision of 1980, arising from nearby San Jose.

The rules of law, both statutory and judge-made, through which each state allocates private powers and responsibilities themselves represent characteristic forms of government action. That's why a state's rules for imposing liability on private publishers, or for deciding which private contracts to enforce and which ones to invalidate, are all subject to scrutiny for their consistency with the federal Constitution. But as a general proposition it is only what governments do, either through such rules or through the actions of public officials, that the United States Constitution constrains. And nothing about any new technology suddenly erases the Constitution's enduring value of restraining government above all else, and of protecting all private groups, large and small, from government.

It's true that certain technologies may become socially indispensable — so that equal or at least minimal access to basic computer power, for example, might be as significant a constitutional goal as equal or at least minimal access to the franchise, or to dispute resolution through the judicial system, or to elementary and secondary education. But all this means (or should mean) is that the Constitution's constraints on government must at times take the form of imposing affirmative duties to assure access rather than merely enforcing negative prohibitions against designated sorts of invasion or intrusion.

Today, for example, the government is under an affirmative obligation to open up criminal trials to the press and the public, at least where there has not been a particularized finding that such openness would disrupt the proceedings. The government is also under an affirmative obligation to provide free legal assistance for indigent criminal defendants, to assure speedy trials, to underwrite the cost of counting ballots at election time, and to desegregate previously segregated school systems. But these occasional affirmative obligations don't, or shouldn't, mean that the Constitution's axiomatic division between the realm of public power and the realm of private life should be jettisoned.

Nor would the "indispensability" of information technologies provide a license for government to impose strict content, access, pricing, and other types of regulation. Books are indispensable to most of us, for example — but it doesn't follow that government should therefore be able to regulate the content of what goes onto the shelves of bookstores. The right of a private bookstore owner to decide which books to stock and which to discard, which books to display openly and which to store in limited access areas, should remain inviolate. And note, incidentally, that this needn't make the bookstore owner a "publisher" who is liable for the words printed in the books on her shelves. It's a common fallacy to imagine that the moment a computer gateway or bulletin board begins to exercise powers of selection to control who may be on line, it must automatically assume the responsibilities of a newscaster, a broadcaster, or an author. For computer gateways and bulletin boards are really the "bookstores" of cyberspace; most of them organize and present information in a computer format, rather than generating more information content of their own.

Axiom 2:
The Constitutional Boundaries of Private Property
and Personality Depend on Variables Deeper Than
Social Utility and Technological Feasibility

The second constitutional axiom, one closely related to the private-public distinction of the first axiom, is that a person's mind, body, and property belong to that person and not to the public as a whole. Some believe that cyberspace challenges that axiom because its entire premise lies in the existence of computers tied to electronic transmission networks that process digital information. Because such information can be easily replicated in series of "1"s and "0"s, anything that anyone has come up with in virtual reality can be infinitely reproduced. I can log on to a computer library, copy a "virtual book" to my computer disk, and send a copy to your computer without creating a gap on anyone's bookshelf. The same is true of valuable computer programs, costing hundreds of dollars, creating serious piracy problems. This feature leads some, like Richard Stallman of the Free Software Foundation, to argue that in cyberspace everything should be free — that information can't be owned. Others, of course, argue that copyright and patent protections of various kinds are needed in order for there to be incentives to create "cyberspace property" in the first place.

Needless to say, there are lively debates about what the optimal incentive package should be as a matter of legislative and social policy. But the only constitutional issue, at bottom, isn't the utilitarian or instrumental selection of an optimal policy. Social judgments about what ought to be subject to individual appropriation, in the sense used by John Locke and Robert Nozick, and what ought to remain in the open public domain, are first and foremost political decisions.

To be sure, there are some constitutional constraints on these political decisions. The Constitution does not permit anything and everything to be made into a private commodity. Votes, for example, theoretically cannot be bought and sold. Whether the Constitution itself should be read (or amended) so as to permit all basic medical care, shelter, nutrition, legal assistance and, indeed, computerized information services, to be treated as mere commodities, available only to the highest bidder, are all terribly hard questions — as the Eastern Europeans are now discovering as they attempt to draft their own constitutions. But these are not questions that should ever be confused with issues of what is technologically possible, about what is realistically enforceable, or about what is socially desirable.

Similarly, the Constitution does not permit anything and everything to be socialized and made into a public good available to whoever needs or "deserves" it most. I would hope, for example, that the government could not use its powers of eminent domain to "take" live body parts like eyes or kidneys or brain tissue for those who need transplants and would be expected to lead particularly productive lives. In any event, I feel certain that whatever constitutional right each of us has to inhabit his or her own body and to hold onto his or her own thoughts and creations should not depend solely on cost-benefit calculations, or on the availability of technological methods for painlessly effecting transfers or for creating good artificial substitutes.

Axiom 3:
Government May Not Control Information Content

A third constitutional axiom, like the first two, reflects a deep respect for the integrity of each individual and a healthy skepticism toward government. The axiom is that, although information and ideas have real effects in the social world, it's not up to government to pick and choose for us in terms of the content of that information or the value of those ideas.

This notion is sometimes mistakenly reduced to the naive child's ditty that "sticks and stones may break my bones, but words can never hurt me." Anybody who's ever been called something awful by children in a schoolyard knows better than to believe any such thing. The real basis for First Amendment values isn't the false premise that information and ideas have no real impact, but the belief that information and ideas are too important to entrust to any government censor or overseer.