Книга: Code 2.0

Chapter 9. Translation

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.

The weak link in this system was the judge. If judges were too lax, then warrants would be too easy to get[8], and weak judges were a concern for the framers. Under British rule judges had been appointed by the Crown, and by the time of the Revolution, the Crown was the enemy. Having seen much abuse of the power to issue warrants, the framers were not keen to give judges control in determining whether the government’s searches were reasonable.

In particular (as I described in Chapter 2), the framers had in mind some famous cases in which judges and the executive had issued “general warrants” giving government officers the power to search generally for objects of contraband[9]. In modern terms, these were “fishing expeditions.” Because the officers had warrants, they could not be sued; because the judges were largely immune from suit, they could not be sued. Because no one could be sued, there was a temptation for abuse. The framers wanted to avoid just such judge-made abuse. If there was to be immunity, it would come from a jury, or from a successful search.

This is the origin of clause (b) of the Fourth Amendment. The framers required that judges, when issuing warrants, name particularly “the place to be searched, and the persons or things to be seized”, so that judges would not be able to issue warrants of general power. The immunity of the warrant would be limited to particular people and places, and only when probable cause existed to issue the warrant.

This constitutional regime was designed to balance the people’s interests in privacy against the legitimate need for the government to search. The officer had an incentive to get a warrant (to avoid the risk of personal liability); the judge had a rule that restricted the conditions under which he could issue a warrant; and together these structures limited official invasions of privacy to cases that presented a strong reason to invade.

That much is background. But notice what follows.

The original regime presupposed a great deal. Most obviously, it presupposed a common-law system of trespass law — it was the threat of legal liability from trespass law that created the incentives for officers to seek warrants in the first place. This presupposition placed property at the core of the Constitution’s original protections.

Equally important, the regime presupposed much about the technology of the time. The Fourth Amendment focuses on trespass because that was the primary mode of searching at the time. If it had been possible simply to view the contents of a house without going inside, the restrictions of the Fourth Amendment would have made little sense. But the protections of the amendment did make sense as a way to draw the balance between government’s power to search and the people’s right to privacy given the regime of trespass law and privacy-invading technologies that prevailed at the end of the eighteenth century.

Presuppositions — what is taken for granted or considered undebatable — change[10]. How do we respond when such presuppositions change? How do we read a text written against a background of certain presuppositions when those presuppositions no longer apply?

For Americans, or for any nation with a constitution some two hundred years old, this is the central problem for constitutional interpretation. What if state governments, for example, were simply to abolish rights against trespass? Would the amendment be read any differently[11]? What if technologies for searching were to change so dramatically that no one would ever need to enter another’s property to know what is kept there? Should the amendment then be read differently?

The history of the Supreme Court’s treatment of such questions lacks a perfectly clear pattern, but we can identify two distinct strategies competing for the Court’s attention. One strategy is focused on what the framers or founders would have done — the strategy of one-step originalism. The second strategy aims at finding a current reading of the original Constitution that preserves its original meaning in the present context — a strategy that I call translation.

Both strategies are present in the Olmstead wiretapping case. When the government tapped the phones of the defendants without any warrant, the Court had to decide whether the use of this kind of evidence was permissible or consistent with the principles of the Fourth Amendment. The defendants said: The government must get a warrant to tap phones. The government said: The Fourth Amendment simply does not apply.

The government’s argument was quite simple. The amendment presupposed that the government would be trespassing to search, and it was regulating the conditions under which officers could trespass. But because wiretapping is an invasion of privacy without a trespass, the government is able to tap the defendants’ phones without ever entering their property; the amendment therefore does not apply. It simply does not reach to protect invasions that are invasions without trespass.

The Supreme Court agreed. In an opinion written by Chief Justice (and former President) William Howard Taft, the Court followed the government.

The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured only by the use of the sense of hearing and that only. The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office[12].

This conclusion was received with surprise and shock. Already much of life had moved to the wires. People were beginning to understand what it meant to have intimate contact “online”; they counted on the telephone system to protect their intimate secrets. Indeed, telephone companies, having strongly fought the authority that the government claimed, pledged not to assist the government except as required by law[13]. This resistance notwithstanding, the Court concluded that the Constitution did not interfere with invasions of this sort. It would not have done so when the Constitution was written; it did not do so at the time when the case was decided.

But the dissent written by Justice Brandeis (there was also a dissent by Justices Holmes, Stone, and Butler) had a different view. As with Taft’s opinion, the focus was fidelity. But his fidelity was quite differently conceived.

Brandeis acknowledged that the Fourth Amendment, as originally written, applied only to trespass[14]. But it did so, he argued, because when it was written trespass was the technology for invading privacy. That was the framers’ presupposition, but that presupposition had now changed. Given this change, Brandeis argued, it was the Court’s responsibility to read the amendment in a way that preserved its meaning, changed circumstances notwithstanding. The aim must be to translate the original protections into a context in which the technology for invading privacy had changed[15]. This would be done, Brandeis argued, by applying the Fourth Amendment’s protection to invasions that were not themselves trespasses.

These two opinions mark two different modes of constitutional interpretation. Taft finds fidelity by simply repeating what the framers did; Brandeis finds fidelity by finding the current equivalent to what the framers did. If we followed Taft, Brandeis argued, we would defeat the protections for privacy that the framers originally set; if we followed Brandeis, Taft implied, we would be adding something to the Constitution that the framers had not written.

Partisans on both sides claimed that the opinion of the other would have “changed” the meaning of the Constitution. But whose opinion, the Court’s or Justice Brandeis’s, would really “change” the meaning of the Fourth Amendment?

To answer this question, we must first ask: Change relative to what? What is the baseline against which this change is a change? Certainly Brandeis would have agreed that in 1791 any finding by the Court that the amendment reached beyond trespass would have been improper. But when something presupposed by the original amendment has changed, is it clear that the Court’s proper response is to act as if nothing has changed at all?

Brandeis’s method accounted for the changed presupposition. He offered a reading that changed the scope of the amendment in order to maintain the amendment’s protection of privacy. Taft, on the other hand, offered a reading that maintained the scope of the amendment but changed its protection of privacy. Each reading kept something constant; each also changed something. The question is: Which reading preserved what fidelity demands should be preserved?

We might better see the point through a somewhat stylized re-creation. Imagine that we could quantify privacy; we could thus describe the change in the quantity of privacy that any change in technology might bring. (Robert Post has given an absolutely persuasive argument about why privacy is not quantifiable, but my purposes here are simply illustrative[16].) Imagine that in 1791 protecting against physical trespass protected 90 percent of personal privacy. The government could still stand on the street and listen through open windows, but the invasion presented by that threat was small, all things considered. For the most part, a regime that protected against trespass also protected privacy.

When telephones came along, however, this protection changed. A lot of private information was put out across the phone lines. Now, if tapping was not trespass, much less of private life was protected from government snooping. Rather than 90 percent being protected by the amendment, only 50 percent was protected.

Brandeis wanted to read the amendment so that it protected the 90 percent it originally protected — even though doing so required that it protect against more than simple trespass. He wanted to read it differently, we could say, so that it protected the same.

This form of argument is common in our constitutional history, and it is central to the best in our constitutional tradition[17]. It is an argument that responds to changed circumstances by proposing a reading that neutralizes those changes and preserves an original meaning. It is an argument invoked by justices on both the right and the left[18], and it is a way to keep life in a constitutional provision — to make certain that changes in the world do not change the meaning of the Constitution’s text. It is an argument, we can say, that aims at translating the protections that the Fourth Amendment gave in 1791 into the same set of protections at any time later in our history. It acknowledges that to do this the Court may have to read the amendment differently, but it is not reading the amendment differently to improve the amendment or to add to its protections. It is reading the amendment differently to accommodate the changes in protection that have resulted from changes in technology. It is translation to preserve meaning.

If there is a justice who deserves cyberspace’s praise, if there is a Supreme Court opinion that should be the model for cyber activists in the future, if there is a first chapter in the fight to protect cyberspace, it is this justice, this opinion, and this case. Brandeis gave us a model for reading the Constitution to preserve its meaning, and its values, across time and context. It is a method that recognizes what has changed and accommodates that change to preserve something of what the framers originally gave us. It is a method that translates the Constitution’s meaning across fundamentally different contexts — whether they are as temporally distant as we are from the framers or as distant as cyberspace is from real space.

But it was Taft’s opinion that became law and his narrow view of the Fourth Amendment that prevailed. It took forty years for the Supreme Court to embrace Brandeis’s picture of the Fourth Amendment — 40 years before Olmstead was overruled. The case overruling it was Katz v. United States[19].

Charles Katz was suspected of transmitting gambling information to clients in other states by telephone. Federal agents recorded his half of several of his telephone calls by attaching an eavesdropping device to the outside of a public phone booth where he made his calls. Katz was convicted on the basis of this evidence, and the court of appeals upheld the conviction on the basis of Olmstead.

Harvard Law School Professor Laurence Tribe was involved in the case at the beginning of his legal career:

As a law clerk to Supreme Court Justice Potter Stewart, I found myself working on a case involving the government’s electronic surveillance of a suspected criminal in the form of a tiny device attached to the outside of a public telephone booth. Because the invasion of the suspect’s privacy was accomplished without physical trespass into a “constitutionally protected area”, the Federal Government argued, relying upon Olmstead, that there had been no “search” or “seizure” and therefore the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ” simply did not apply.

At first, there were only four votes to overrule Olmstead and to hold the Fourth Amendment applicable to wiretapping and electronic eavesdropping. I’m proud to say that, as a 26-year-old kid, I had at least a little bit to do with changing that number from four to seven — and with the argument, formally adopted by a seven-Justice majority in December 1967, that the Fourth Amendment “protects people, not places” 389 US at 351. In that decision, Katz v. United States, the Supreme Court finally repudiated Olmstead and the many decisions that had relied upon it, reasoning that, given the role of electronic telecommunications in modern life, the First Amendment purposes of protecting free speech as well as the Fourth Amendment purposes of protecting privacy require treating as a “search” any invasion of a person’s confidential telephone communications, with or without physical trespass[20].

The Court in Katz followed Brandeis rather than Taft. It sought a reading of the Fourth Amendment that made sense of the amendment in a changed context. In the framers’ context of 1791, protecting against trespass to property was an effective way to protect against trespass to privacy, but in the Katz context of the 1960s it was not. In the 1960s much of intimate life was conducted in places where property rules did not reach (in the “ether”, for example, of the AT&T telephone network). And so a regime that made privacy hang on property did not protect privacy to the same degree that the framers had intended. Justice Stewart in Katz sought to remedy that by linking the Fourth Amendment to a more direct protection of privacy.

The link was the idea of “a reasonable expectation of privacy.” The core value, Stewart wrote, was the protection of “people, not places.[21]” Hence, the core technique should be to protect people where they have a reasonable expectation of privacy. Where this is the case, the government cannot invade that space without satisfying the requirements of the Fourth Amendment.

There is much to admire in Stewart’s opinion, at least to the extent that he is willing to fashion tools for preserving the Constitution’s meaning in changed circumstances — or again, to the extent that he attempts to translate the protections of the Fourth Amendment into a modern context. There is also much to question[22]. But we can put those questions aside for the moment and focus on one feature of the problem that is fairly uncontentious.

While lines will be hard to draw, it is at least fairly clear that the framers made a conscious choice to protect privacy. This was not an issue off the table of their original debate or a question they did not notice. And this is not the “right to privacy” that conservatives complain about in the context of the right to abortion. This is the right to be free from state intrusion into the “sanctity” of a private home. State-enforced threats to individual privacy were at the center of the movement that led to the republic. Brandeis and Stewart simply aimed to effect that choice in contexts where the earlier structure had grown ineffectual.

Translations like these are fairly straightforward. The original values chosen are fairly clear; the way in which contexts undermine the original application is easily grasped; and the readings that would restore the original values are fairly obvious. Of course, such cases often require a certain interpretive courage — a willingness to preserve interpretive fidelity by changing an interpretive practice. But at least the direction is clear, even if the means are a bit unseemly[23].

These are the easy cases. They are even easier when we are not trying to carry values from some distant past into the future but instead are simply carrying values from one context into another. When we know what values we want to preserve, we need only be creative about how to preserve them.

Cyberspace will present many such easy cases. When courts confront them, they should follow the example of Brandeis: They should translate, and they should push the Supreme Court to do likewise. Where circumstances have changed to nullify the protections of some original right, the Court should adopt a reading of the Constitution that restores that right.

But some cases will not be so easy. Sometimes translation will not be an option, and sometimes the values that translation would track are values we no longer want to preserve. Sometimes we cannot tell which values translation would select. This was the problem in Chapter 2 with the worm, which made the point about latent ambiguities. Changing contexts sometimes reveals an ambiguity latent in the original context. We must then choose between two different values, either of which could be said to be consistent with the original value. Since either way could be said to be right, we cannot say that the original context (whether now or two hundred years ago) decided the case.

Professor Tribe describes an example in a founding article in the law of cyberspace, “The Constitution in Cyberspace.[24]” Tribe sketches a method of reading the Constitution in cyberspace that aims to make the Constitution “technologically neutral.” The objective is to adopt readings (or perhaps even an amendment) that make it plain that changes in technology are not to change the Constitution’s meaning. We must always adopt readings of the Constitution that preserve its original values. When dealing with cyberspace, judges are to be translators: Different technologies are the different languages, and the aim is to find a reading of the Constitution that preserves its meaning from one world’s technology to another[25].

This is fidelity as translation. This kind of translation speaks as if it is just carrying over something that has already been said. It hides the creativity in its act; it feigns a certain polite or respectful deference. This way of reading the Constitution insists that the important political decisions have already been made and all that is required is a kind of technical adjustment. It aims to keep the piano in tune as it is moved from one concert hall to another.

But Tribe then offers an example that may make this method seem empty. The question is about the meaning of the confrontation clause of the Sixth Amendment — the defendant’s right in a criminal trial “to be confronted with the witnesses against him.” How, Tribe asks, should we read this clause today?

At the time of the founding, he argues, the technology of confrontation was simple — confrontation was two-way. If a witness confronted the accused, the accused, of necessity, confronted the witness. This was a necessity given to us by the technology of the time. But today it is possible for confrontation to be one-way — the witness confronts the accused, but the accused need not confront the witness. The question then is whether the confrontation clause requires one-way or two-way confrontation[26].

Let us grant that Tribe’s descriptions of the available technologies are correct and that the framers embraced the only confrontation clause that their technology permitted. The real question comes in step two. Now that technology allows two possibilities — one-way or two-way confrontation — which does the Constitution require?

The Court’s answer in its 1990 decision in Maryland v. Craig was clear: The Constitution requires only one-way confrontation. A confrontation clause regime that permits only one-way confrontation, at least when there are strong interests in not requiring two, is a fair translation of the original clause[27].

As a matter of political choice, I certainly like this answer. But I do not see its source. It seems to me that this is a question the framers did not decide, and a question that if presented to them might well have divided them. Given the technology of 1791, they did not have to decide between one-way and two-way confrontation; given the conflict of values at stake, it is not obvious how they would have decided it. Thus, to speak as if there were an answer here that the framers gave us is a bit misleading. The framers gave no answer here, and, in my view, no answer can be drawn from what they said.

Like the worm in Chapter 2, the confrontation clause presents a latent ambiguity[28]. Constitutional law in cyberspace will reveal many more such latent ambiguities. And these ambiguities offer us a choice: How will we go on?

Choices are not terrible. It is not a disaster if we must make a decision — as long as we are capable of it. But here is the nub of the problem as I see it. As I argue in more detail in Part IV, given the current attitudes of our courts, and our legal culture generally, constitutional choices are costly. We are bad at making them; we are not likely to get better at it soon.

When there is no answer about how to proceed — when the translation leaves open a question — we have two sorts of responses in constitutional practice. One response is passive: The court simply lets the legislature decide. This is the response that Justice Scalia presses in the context of the Fourteenth Amendment. On matters that, to the framers, were “undebatable”, the Constitution does not speak[29]. In this case, only the legislature can engage and press questions of constitutional value and thus say what the Constitution will continue to mean.

The second response is more active: The court finds a way to articulate constitutional values that were not present at the founding. The courts help spur a conversation about these fundamental values — or at least add their voice to this conversation — to focus a debate that may ultimately be resolved elsewhere. The first response is a way of doing nothing; the second is a way of exciting a dialogue about constitutional values as a means to confronting and resolving new questions[30].

My fear about cyberspace is that we will respond in the first way — that the courts, the institutions most responsible for articulating constitutional values, will stand back while issues of constitutional import are legislatively determined. My sense is that they will step back because they feel (as the balance of this book argues) that these are new questions that cyberspace has raised. Their newness will make them feel political, and when a question feels political, courts step away from resolving it.

I fear this not because I fear legislatures, but because in our day constitutional discourse at the level of the legislature is a very thin sort of discourse. The philosopher Bernard Williams has argued that because the Supreme Court has taken so central a role in the articulation of constitutional values, legislatures no longer do[31]. Whether Williams is correct or not, this much is clear: The constitutional discourse of our present Congress is far below the level at which it must be to address the questions about constitutional values that will be raised by cyberspace.

How we could reach beyond this thinness of discourse is unclear. Constitutional thought has been the domain of lawyers and judges for too long. We have been trapped by a mode of reasoning that pretends that all the important questions have already been answered, that our job now is simply to translate them for modern times. As a result, we do not quite know how to proceed when we think the answers are not already there. As nations across the world struggle to express and embrace constitutional values, we, with the oldest written constitutional tradition, have lost the practice of embracing, articulating, and deciding on constitutional values.

I return to this problem in Chapter 15. For now, my point is simply descriptive. Translation is one way to deal with the choices that cyberspace presents. It is one way of finding equivalence across contexts. But in the four applications that follow, I press the question: Is the past enough? Are there choices the framers did not address? Are they choices that we must make[32]?