Laurence H. Tribe, "The Constitution in Cyberspace" PREPARED REMARKS KEYNOTE ADDRESS AT THE FIRST CONFERENCE ON COMPUTERS, FREEDOM & PRIVACY Copyright, 1991, Jim Warren & Computer Professionals for Social Responsibility All rights to copy the materials contained herein are reserved, except as hereafter explicitly licensed and permitted for anyone: Anyone may receive, store and distribute copies of this ASCII-format computer textfile in purely magnetic or electronic form, including on computer networks, computer bulletin board systems, computer conferencing systems, free computer diskettes, and host and personal computers, provided and only provided that: (1) this file, including this notice, is not altered in any manner, and (2) no profit or payment of any kind is charged for its distribution, other than normal online connect-time fees or the cost of the magnetic media, and (3) it is not reproduced nor distributed in printed or paper form, nor on CD ROM, nor in any form other than the electronic forms described above without prior written permission from the copyright holder. Arrangements to publish printed Proceedings of the First Conference on Computers, Freedom & Privacy are near completion. Audiotape and videotape versions are also being arranged. A later version of this file on the WELL (Sausalito, California) will include ordering details. Or, for details, or to propose other distribution alternatives, contact Jim Warren, CFP Chair,345 Swett Rd., Woodside CA 94062; voice:(415)851-7075; fax:(415)851-2814; e-mail:jwarren@well.sf.ca.us.[4/19/91] [ These were the author's *prepared* remarks. A transcript of Professor Tribe's March 26th comments at the Conference (which expanded slightly on several points herein) will be uploaded onto the WELL as soon as it is transcribed from the audio tapes and proofed against the audio and/or videotapes.] "The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier" by Laurence H. Tribe Copyright 1991 Laurence H. Tribe, Tyler Professor of Constitutional Law, Harvard Law School. Professor Tribe is the author, most recently, of "On Reading the Constitution" (Harvard University Press, Cambridge, MA, 1991). 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 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....
ms_lo