Constitution 3.0 – Maintaining Privacy in the Digital World

A little known fact about me is that before I entered the technology world, I studied constitutional law in graduate school. I was and am especially interested in privacy issues, so I’m quite excited to read Constitution 3.0, on how we’ll preserve our freedoms in the digital age.

One of the editors, Jeffrey Rosen, was recently interviewed on Fresh Air:

“Will the justices be willing to look beyond the existing Fourth Amendment categories, which have been inadequate to confront these new virtual technologies, and take a leap of imagination?” he asks. “Really, the leap they’re being asked to take is the one that Justice Brandeis took in the 1920s when the court decided for the first time the constitutionality of wiretapping.”

 

In that instance, Brandeis wrote the dissenting opinion in Olmstead v. United States, a landmark case in which the court ruled that neither the Fourth Amendment nor the Fifth Amendment protects a defendant against having personal conversations wiretapped by federal agents.

 

“Brandeis noted that at the time of the framing of the Constitution, a far less intrusive search — namely breaking into someone’s home and riffling through their desk drawers to identify a critic of King George III — was the quintessential example of an unreasonable search,” Rosen says. “[Brandeis added] that it was now possible to invade the privacy of people of both ends of a telephone wire. And then … Brandeis looked forward to the age of cyberspace. He said, ‘Ways may someday be developed — without breaking into desk drawers — to extract papers from home and introduce them in court before a jury. … The court should translate the Constitution and recognize that you don’t need a physical trespass to create an unreasonable search.'”

I’m also fascinated by the idea of a “right to oblivion,” which is being championed by privacy advocates in Europe. The public nature of my life means I’d probably never take advantage of it, but it’s an interesting extension of privacy rights nonetheless.

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