Computers, Privacy & the Constitution
In 1991, Harvard Law Professor Laurence Tribe proposed a new constitutional amendment for the emerging digital era. “Tribe’s Amendment,” as I will refer to it from here on out, promised to resolve the Supreme Court’s previous scattershot approach to new technology by purporting to make the Constitution – and the rights guaranteed therein – explicitly agnostic on the question by removing the specific instances of technology from consideration. In this way, we might call Tribe’s Amendment consequentialist – it cares not for formalisms about where and by whom a person’s data is stored; it asks only what the effect collection of that data will have on a person’s rights.

Adoption of Tribe’s Amendment would undoubtedly have large positive effects for the protection of citizen’s rights against government overreach. Many of the most vexing Constitutional problems of the digital age would be solved: for instance, the peculiar situation by which government can surveil a person’s emails without warrant without running afoul of the Fourth Amendment because those emails are held on a third-party server would be immediately resolved: regardless that the emails are held by Google, it is an unreasonable search to read someone’s mail without a warrant. However, the applicability of Tribe’s Amendment gets trickier when we consider questions that, though weighty, are novel to the digital age. In this paper, I consider the fate of one such question: the right to anonymous reading.

As a preliminary matter, let us grab the exact text of Tribe’s Amendment:

"This Constitution's protections for the freedoms of speech, press, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivation of life, liberty, or property without due process of law, shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled."

And so we see the structure of Tribe’s Amendment: it makes reference to certain provisions of the First, Fourth, and Fourteenth Amendments and declares that the rights declared therein will be “fully applicable” regardless of “technological method or medium.” Therefore, in order for Tribe’s Amendment to be implicated by an issue, that issue must involve one of the First, Fourth, or Fourteeenth Amendment rights so named.

Violations of the right to anonymous reading certainly cross this initial threshold. A basic case might be police seeking to subpoena Amazon’s records relating to all of a person’s reading on their Kindle apps and devices; such an inquest would clearly be a search inviting some level of Fourth Amendment analysis. This case also passes a second threshold for Tribe’s Amendment analysis: because the Tribe Amendment instructs courts to disregard the “technological method or medium through which information content is generated, stored, altered, transmitted or controlled,” the fact that the data the police seek is generated by Amazon and held on Amazon’s servers will not interfere with a finding that the search is unreasonable, as it would on simple Fourth Amendment analysis.

This is where clarity stops, however. Because Tribe’s Amendment does not purport to expand any of the rights or protections discusses – instead only ensuring their applicability – the next question in considering anonymity of reading must be the familiar Fourth Amendment question: do people have a “reasonable expectation of privacy” in their reading material? This question is significantly tougher.

On the first hand, there is a straightforward, compelling case to be made that there is a reasonable expectation of privacy: no one expects that the full content of their reading is public information to the people around them. By way of demonstration, how many people would be mortified if their friends and acquaintances discovered that they had never read the weighty works of philosophy or literature they proudly displayed on prominent bookshelves? On the other side of the coin, how many people keep secrets about their reading: trashy genre fiction they read as a guilty pleasure or the books of disfavored political views they picked up out of curiosity? Indeed, it has been argued that part of the reason for Fifty Shades of Grey’s success is the discretion offered by ebooks: for the first time, you can read erotica on the subway without the book’s cover broadcasting the fact to everyone around you. Therefore, privacy in reading is just like any other sort of intimate privacy: people ought to have the right to share or not share as they see fit.

The problem, of course, is that while we do expect privacy in reading vis--vis other people in our lives, privacy relative to Amazon is a different matter entirely. The intellectual who would not want her friends to know that she enjoys reading pulpy zombie novels may be most enthusiastic in wanting Amazon to know she enjoys them; she will eventually need recommendations for new ones, after all. Even for the reader less excited to give up their privacy to Amazon, the fact that they are giving it up by using a Kindle must be readily apparent. How can there be a reasonable expectation of privacy in data shared with Amazon when the user knows the data will be attributed to her, stored, and analyzed? The obscurity of our reading with respect to our friends is only a function of their politeness in not grabbing the data we send to Amazon. Tribe’s Amendment may instruct the courts not to credit the technological medium of information content, but how can they not notice when the medium used is fundamentally at odds with the privacy claim made?

Given this difficulty, Tribe’s Amendment – for all its usefulness – seems incomplete as a political solution to the overly intrusive surveillance made possible by the digital age. Could we do better? Possibly we could by reimagining of privacy as a fundamental right with a heavy presumption in its favor that cannot be overturned by mere facts of how technology works. But ultimately, political solutions are unlikely to be enough in the context of a decidedly anti-privacy commercial web; only changing the technology we use will do.

-- TomLawrence - 27 Apr 2015



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r2 - 29 Jun 2015 - 15:34:26 - MarkDrake
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