Online privacy in the Constitution in the United States

Does it limit what technology judges and lawyers can use in a courtroom, when they’d otherwise use lots more technology that might not have the accused and testimony in the same room anymore?

Physicality and Jurisdiction

Europeans are very comfortable with trying in absentia- presence is a matter of fairness. In the English tradition, presence is a matter of jurisdiction, and so a prerequisite. (This is not a constitutional question.) Historically in English law failure to consent to jurisdiction (to plea) makes you an outlaw. You can also force pleading (once you’ve got the person) through peine forte et dur. Question eventually arises- what can you do to create jurisdiction in the modern US? Kidnapping across borders used to create a due process problem, but once you’re in US borders you can do some kidnapping (more or less) and probably even reach across borders now.

Confrontation
Note that until relatively recently (1700s) the English system /prohibited/ counsel in criminal trial- confrontation was assumed to be the sole test of truth. This changes gradually (starting with treason statute in 1697), and is partially a result of importation into Britain from the Colonies. Goal of right to counsel in PartSix is to limit/constrain the federal government from regressing to the British norm of less than 100 years ago; the confrontation clause has older roots, historically speaking. Even in brutal contempt cases we still bring you in, see, e.g., though now we use closed circuit TVs- filling only the right to see. Kentucky v. Buchanan suggests that seeing, plus the ability to confer with the lawyer about cross-examination, is sufficient, though probably only for child molestation or other cases where there are particularly strong malevolent relationships present.
Given that you can now broadcast a trial so trivially, does physicality during testimony still have a place?

Seems like the key question is whether or not one thinks that physicality has a relationship to truth; our system is certainly invested in the idea that tone of voice/view of face is very important, and that transcripts are insufficient- hence (in part) deference of appellate courts to juries.

so what does it mean now?

What about video (particularly HD?) The technical shortcomings of ‘I saw it on TV’ may in the near future be less than the shortcomings of the physical courtroom- distraction, distance from jury box to parties, etc. Open question, of course, as to the psychological questions- do they become an actor, someone abstract, and hence not trusted (or less valued, if they are the defendant?)

If the goal of the criminal trial judge is to streamline proceses, they can use technology to do that- judge can watch testimony whenever is convenient; rewind, rewatch, etc. but does confrontation clause cause a problem for that?

Could there be benefits from the technological system—to expand procedure in courts in light of technology so as to derive more technological benefit? Is this a problem for the long haul?

The Sixth Amendment poses certain barriers and what will we do? The Ninth Amendment: cases on constitutional privacy invoked the 9th Amendment. The Goldberg opinion is an example of a form of thinking that makes some sense. See amicus brief by Professor Moglen for Planned Parenthood v. Casey. What might happen if the 4th Amendment is swallowed? If that has happened, is there something reserved to the people? See Professor Black’s “On reading and using the 9th Amendment.”

Do certain amendments become obsolete over time? It no longer makes sense to quarter militia in private homes. Has the Third Amendment ceased to have meaning? If you have no theory of obsolescence, then you need theory of non-deprecation of rights. Of course, we could codify the constitution on a European model. Or, we could have a revolution every twenty-five years. But we have a need for social stability.

One problem is the myth that the founders were forward-looking. The federalists imagined the past and remember the future. The past they think they know is a narrative, and the future is a story written by other people. In truth, they are worried about the late-eighteenth century geo-political issues of their precise time. They have just seen the French and Indian war the War of Independence. Two world wars. They are concerned with the trade routes from the Caribbean, Africa, to India. They want to be able to control this vast continent.

We, however, in the clutches of Narcissism believe that the framers were thinking about the future. Also, what does Hamilton have to tell use about Total Information Awareness? He was a thug, a believer in the use of power directed toward the individual. He would permit the tapping of every telephone and the reading every email. In fact, he did something like it in the summer of 1786 to convince George Washington to come to Philadelphia. He scared a man into accepting the presidency.

In response to his vision of a monarchical presidency, the Pennsylvania convention tabled his idea and adopted a provision requiring president to be a natural born citizen. They did this in order to make sure Hamilton never became president. They weren’t worried about the Terminator or McCain? .

The reason we think they were so prescient is due to their use of language in the Federalist papers. At the time, pamphleteers had a tendency to dress up their language in high Roman phraseology. It makes them sound like a sight-sighted group, despite their localist interests. They are thinking about a continental empire: an “extensive republic,” or how have a political republic over thousands of miles. They look at Rome and come to the conclusion that the Mediterranean so large that the empire rises out of necessity. They face question: how to deal with a republic with a space as large as North America? Their solution is the creation of co-equal republics within the republic. But, what really held together the republic was technology. In fact, the founders believed there would be a slow-growing republic. In fact, the railroad and the telegraph enabled the country to grow at great speeds and also enabled it to function as a single economic unit.

Dred Scott was reversed in 2 ways: all persons are citizens but also, congress’s plenary powers are not sufficient to exclude slavery. If you want to learn more about the 14th Amendment read (1) Bill Nelson’s The 14th Amendment, or (2) Eric Foner’s Reconstruction. We should think of constitutional powers, not limitations. We lost our rights when we began focusing only on state action, prohibitions of government: rights as limitations. Professor Black hoped the 9th Amendment would create a theory of private rights that would get rid of state action requirement.

What we should do is make privacy a major issue in America. We should generate a national conversation about privacy. A model might be the conservation movement and a future statutory scheme might be something like the National Environmental Policy Act (NEPA). We need a national information privacy policy movement. What Silent Spring generate was a movement where people asked questions and began to think about their situation locally. Perhaps we should forget about adding a constitutional amendment for “cyberspace” as Professor Tribe has suggested. Perhaps the Ninth Amendment is not the answer. We must think about a way to generate a structured public dialogue about privacy rights in the 21st century.

In the Bill Clinton case,
lost ‘two most fundamental rights of man: to sleep with a woman other than his wife and the right to lie about it.’ Spitzer similarly- keeping it secret is, in and of itself, an offense, and here the original/primal offense. Note that most don’t even know it is monitored and illegal; Spitzer should have known otherwise and still screwed up. This is the result of the SAR. Prior to ’96, this was only ‘if you move more than $10K, we report’; now there is a whole layer of reporting on transfers other than that. Program was originally called ‘know your customer’. Knowledge does have some legitimate uses- can do simple fraud monitoring, for example. Needs very comprehensive data mining to get good data for this, though- e.g., you get less false positives if you combine plane ticket purchases with location of the credit card purchases. Used to be that the most extreme scrutiny only happened in the bank system if you were ‘politically exposed’- i.e., you were the governor. But now it is cheap so it happens all the time.
Effectively what has happened here (if the charge ends up being structuring) is that it is illegal to try to be anonymous.

“I feel like Spitzer has been mangled by broken machinery” (comparing privacy protection laws to early product safety laws)

Main source: http://emoglen.law.columbia.edu/twiki/bin/view/CompPrivConst/ClassNotes03Apr08