Part Three - Latent Ambiguities
The story so far has focused on regulation — both the changing regulability of behavior in cyberspace (it is increasing) and the distinctive way in which behavior in cyberspace will be regulated (through code).
In this Part, I apply the analysis drawn so far to three areas of social and political life that will be affected by these changes — intellectual property, privacy, and free speech.
In each of these areas, I will identify values that are relevant. I will then ask how those values translate to life online. In some cases, the values carry over quite directly, but, in others, they produce what I called in Chapter 2 a “latent ambiguity.” That ambiguity forces us to choose between two very different conceptions of the value at stake. My aim is not to make that choice, but instead simply to throw at least two options into relief.
I have another objective in each chapter as well. In my view, the most important lesson about law in cyberspace is the need for law to account for the regulatory effect of code. Just as the wise regulator accounts for the way the market interacts with legal regulation, so too the wise regulator must account for the ways in which technology interacts with legal regulation. That interaction is often counterintuitive. But unless a regulator takes this interactive effect into account, the regulation — whether to control behavior or to protect certain liberties — will fail.
To know what values are relevant, however, we need a method for carrying values into a new context. I begin this part with an account of that method. The values I will describe are part of our tradition, and they need to be interpreted and made real in this context. Thus, I begin this part with one approach that the law has developed for recognizing and respecting these values. This is the interpretive practice I call “translation.” A translator practices a fidelity to earlier commitments to value. Latent ambiguities are those instances where fidelity runs out. We have nothing to be faithful to, because the choices we now face are choices that our forbears did not.[1]
Chapter 9. Translation
At the height of a previous war on drugs — Prohibition, in the late 1920s — the federal government began using a technique of police work that startled many but proved quite effective: wiretapping.[1] Life had just begun to move onto the wires, and, in an effort to take advantage of the evidence that this new medium might yield, the government began to tap phones without warrants.
Because law enforcement officials themselves were conflicted about the ethics of wiretapping, taps were used sparingly. Nonetheless, for threats perceived to be extremely grave, the technique was deployed. Illegal alcohol, the obsession of the age, was just such a threat.
The most famous of these taps led to the 1928 Supreme Court case Olmstead v. United States. The government was investigating one of the largest illegal liquor import, distribution, and sales organizations in the nation. As part of the investigation, the government began to tap the telephones used by dealers and their agents. These were private phones, but the taps were always secured without trespassing on the property of the targets[2]. Instead, the taps were placed on the wires in places where the government had rightful access to the phone lines.
Using these taps, the government recorded many hours of conversations (775 typewritten pages, according to Justice Louis Brandeis)[3], and it used these recordings to convict the defendants in the case. The defendants challenged the use of these recordings, claiming that the government had violated the Constitution in securing them. The Fourth Amendment protects “persons, houses, papers, and effects, against unreasonable searches and seizures, ” and this wiretapping, the defendants argued, was a violation of their right to be protected from unreasonable searches.
Under then-existing law, it was plain that to enter the apartments of alleged bootlegger Roy Olmstead and his associates and search them (at least while they were gone), the government investigators would have needed a warrant, that is, they would have needed the approval of a judge or magistrate before invading the defendants’ privacy. This is what the Fourth Amendment had come to mean — that certain places (persons, houses, papers, and effects) were protected by presumptively requiring a warrant before they could be invaded[4]. Here there had been no warrant, and hence, as the defendants argued, the search had been illegal. The evidence had to be excluded.
We might pause to ask why. If we read the text of the Fourth Amendment carefully, it is hard to see just where a warrant is required:
(a) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and (b) no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment is really two commands. (I’ve added “a” and “b” to help make the point.) The first says that a certain right (“the right of the People to be secure”) shall not be violated; the second limits the conditions under which a warrant shall be issued. But the text of the amendment does not state a relationship between the first part and the second part. And it certainly does not say that a search is unreasonable if it is not supported by a warrant. So why the “warrant requirement”[5]?
To make sense of the amendment, we must go back to its framing. At that time, the legal protection against the invasion of privacy was trespass law. If someone entered your property and rifled through your stuff, that person violated your common law rights against trespass. You could sue that person for trespass, whether he was a police officer or private citizen. The threat of such suits gave the police an incentive not to invade your privacy[6].
Even without a warrant, however, a trespassing police officer might have a number of defenses. These boil down to whether the search was “reasonable.” But there were two important facts about this reasonableness. First, the determination of reasonableness was made by a jury. Neighbors and peers of the officer judged whether his behavior had been proper. Second, in some cases reasonableness was found as a matter of law — that is, the judge would instruct the jury to find that the search had been reasonable. (For example, when the officer found contraband on the property of the defendant, whether there was sufficient suspicion before the search or not, the search was reasonable.)[7]
This regime created obvious risks for an officer before he searched someone’s property. If he searched and found nothing, or if a jury thought later that his search had not been reasonable, then he paid for his illegal behavior by being held personally liable for the rights he had violated.
But the regime also offered insurance against this liability — the warrant. If the officer secured a warrant from a judge before he made his search, the warrant immunized him against trespass liability. If he then found no contraband or his search turned out to be unreasonable, he still had a defense to a suit.
Creating incentives was one aim of the original system. The law gave an officer an incentive to obtain a warrant before he searched; if he was uncertain, or wanted to avoid all risk of liability, he could first check his judgment by asking a judge. But if the officer was sure, or wanted to hazard the gamble, then not getting a warrant did not make the search automatically unreasonable. He was at risk of increased liability, but his liability was all that was at stake.
1.
For a related practice that focuses upon principles in context rather than application, see Andrew L. Shapiro, "The `Principles in Context' Approach to Internet Policymaking,"
1.
Justice Holmes himself called the wiretapping a "dirty business";
2.
Ibid., 457 (Chief Justice William H. Taft: the obtaining of evidence by wiretaps inserted along telephone wires was done without trespass and thus did not violate the Fourth Amendment).
3.
Ibid., 471 (Justice Louis D. Brandeis dissenting; Justices Holmes, Stone, and Butler also filed dissents).
4.
There is an extensive debate about the original meaning of the Fourth Amendment and how it should be applied today. For the two camps, see Akhil Reed Amar, "Fourth Amendment First Principles,"
5.
See
6.
See Bradford P. Wilson, "The Fourth Amendment as More Than a Form of Words: The View from the Founding," in
7.
See Amar, "Fourth Amendment First Principles," 767; Stuntz, "The Substantive Origins of Criminal Procedure," 400.