45 EMORY L J. NO. 3(1996) argument here is about how difficult fidelity in cyberspace is ng to be The point is this: We, as a legal culture, want the Constitution to resolve the questions of rights, we don't want them to be in the cen ter of our interpretive struggles. We therefore seek, through various forms of originalism, ways to link our constitutional practice today to the practice of the Framers. We seek the authority of originalism as a trump in present legal disputes, and the best way to locate that authority is Brandeis's-translation But even the best translations at some point give out. Even the most careful translators must at some stage concede there is not enough left from the framing regime to guide any more 16 Transla tion will have its limits, and these limits will be of great and I fear terrible significance for us today. For what these limits will yield is a relatively passive judiciary, and a relatively deferential attitude to- ward governmental intrusion. My sense is that, knowing nothing, or at least not very much, terrified by the threats of that which they dont know, these judges will defer to those with democratic authority; without clear rules to limit the democrats, the juricrats will step aside One can hardly blame them for this. Indeed in some cases this deference should be encouraged. 17 But i want to move that counsel of prudence along a bit--to place it in context and limit its reach. We should understand just why the judge's position will be so difficult and we should isolate the source of the difficulty. In some places this difficulty should counsel deference a certain hesitation before resolving the questions of the Constitution in cyberspace finally, or firmly, or with any pretense to permanence. But in others, I argue that judges-especially lower court judges-should be stronger. In cases of simple translation, judges should advance quite firmly ar guments that seek to preserve original values of liberty in a very d ferent context. In these places, there is a space for activism. But in cases where translation is not so simple, judges should kvetch. In these places, they should talk about the questions these changes 16 Felix Cohen, Field Theory and Judicial Logic, 59 YALE LJ.239,272 ( 1950)("Only in mathematics do we find perfect translations--the sort of thing chat enables us to translate any proposition about a straight line in Euclidean geometry into an equivalent proposition about a curve in riemannian geometry But outside mathematics, though we live in a world of imperfections, some im perfections are worse than others. 17 One could well have argued that during the crisis of the Depression, defer ence by the Court to the Congress was well advised. See, e.g., CASS R SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 39(1993)
45 EMORY L. J. NO. 3 (1996) — 6 — my argument here is about how difficult fidelity in cyberspace is going to be. The point is this: We, as a legal culture, want the Constitution to resolve the questions of rights; we don’t want them to be in the center of our interpretive struggles. We therefore seek, through various forms of originalism, ways to link our constitutional practice today to the practice of the Framers. We seek the authority of originalism, as a trump in present legal disputes, and the best way to locate that authority is Brandeis’s—translation. But even the best translations at some point give out. Even the most careful translators must at some stage concede there is not enough left from the framing regime to guide any more.16 Translation will have its limits, and these limits will be of great and, I fear, terrible significance for us today. For what these limits will yield is a relatively passive judiciary, and a relatively deferential attitude toward governmental intrusion. My sense is that, knowing nothing, or at least not very much, terrified by the threats of that which they don’t know, these judges will defer to those with democratic authority; without clear rules to limit the democrats, the juricrats will step aside. One can hardly blame them for this. Indeed, in some cases this deference should be encouraged.17 But I want to move that counsel of prudence along a bit—to place it in context and limit its reach. We should understand just why the judge’s position will be so difficult and we should isolate the source of the difficulty. In some places, this difficulty should counsel deference, a certain hesitation before resolving the questions of the Constitution in cyberspace finally, or firmly, or with any pretense to permanence. But in others, I argue that judges—especially lower court judges—should be stronger. In cases of simple translation, judges should advance quite firmly arguments that seek to preserve original values of liberty in a very different context. In these places, there is a space for activism. But in cases where translation is not so simple, judges should kvetch. In these places, they should talk about the questions these changes 16 Felix Cohen, Field Theory and Judicial Logic, 59 YALE L.J. 239, 272 (1950) (“Only in mathematics do we find perfect translations—the sort of thing that enables us to translate any proposition about a straight line in Euclidean geometry into an equivalent proposition about a curve in Riemannian geometry. But outside mathematics, though we live in a world of imperfections, some imperfections are worse than others.”). 17 One could well have argued that during the crisis of the Depression, deference by the Court to the Congress was well advised. See, e.g., CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 39 (1993)
READING THE CONSTITUTION IN CYBERSPACE raise. And if the result is deferential or passive, it should be so in protest. Here there may well be a place for prudence in deed, but to earn this right to be passive, to compensate for allowing rights claims to fail, judges should not be deferential in word. They should raise before the legal culture the conflict that these new cases pres- ent. Hard cases need not make bad law, but neither should they be treated as if they were easy This Article moves in two stages. I begin with some examples of the changes that cyberspace will present, and some of the questions of constitutionalism that these changes will invite. Following bran- deis. in each case i hazard a translation that reflects what i believe is the best guess at the most we could expect a court in such a case to do. That is Section I In Section Il, I will isolate what about these changes makes them so significant, and what about them makes the change of cyberspace itself so significant, at least to the practice of constitutional fidelity In a line that will no doubt seem far too abstract, we might describe the problem of cyberspace for constitutional law like this: That it leaves us without constraint enough; that we are vis-a-vis the laws of nature in this new space, gods; and that the problem with bein gods is that we must choose. These choices will be choices of great moment; they will raise contested values; they will be of great con titutional significance but they will be made by an institution that is, as it were, allergic to such choice. They will be made, by a Court, pretending that in making its decisions, it is following the choice of others-of the people, of"we the people, "who in truth have not yet confronted the constitutional choices that must be made L THREE PROBLEMS FROM CYBERSPACE I begin with three puzzles presented by cyberspace, and some- thing of the constitutional issues that they raise. I then attempt to solve these puzzles using the technique of translation. My treatment of each, of course, will be far less extensive than a complete account would have to be. But my point in presenting the three is not finally to answer them, but rather to draw out from the collection something important and general about cyberspace Anonymity
READING THE CONSTITUTION IN CYBERSPACE — 7 — raise. And if the result is deferential or passive, it should be so in protest. Here there may well be a place for prudence in deed, but to earn this right to be passive, to compensate for allowing rights claims to fail, judges should not be deferential in word. They should raise before the legal culture the conflict that these new cases present. Hard cases need not make bad law; but neither should they be treated as if they were easy. This Article moves in two stages. I begin with some examples of the changes that cyberspace will present, and some of the questions of constitutionalism that these changes will invite. Following Brandeis, in each case I hazard a translation that reflects what I believe is the best guess at the most we could expect a court in such a case to do. That is Section I. In Section II, I will isolate what about these changes makes them so significant, and what about them makes the change of cyberspace itself so significant, at least to the practice of constitutional fidelity. In a line that will no doubt seem far too abstract, we might describe the problem of cyberspace for constitutional law like this: That it leaves us without constraint enough; that we are, vis-à-vis the laws of nature in this new space, gods; and that the problem with being gods is that we must choose. These choices will be choices of great moment; they will raise contested values; they will be of great constitutional significance; but they will be made by an institution that is, as it were, allergic to such choice. They will be made, by a Court, pretending that in making its decisions, it is following the choice of others—of the people, of “we the people,” who in truth have not yet confronted the constitutional choices that must be made. I. THREE PROBLEMS FROM CYBERSPACE I begin with three puzzles presented by cyberspace, and something of the constitutional issues that they raise. I then attempt to solve these puzzles using the technique of translation. My treatment of each, of course, will be far less extensive than a complete account would have to be. But my point in presenting the three is not finally to answer them, but rather to draw out from the collection something important and general about cyberspace. Anonymity
45 EMORY L J. NO. 3(1996) The architecture of cyberspace--as it is just now--is open 18 One enters cyberspace as one wants. One can enter identifying who one is, or one can hide who one is One can enter speaking a lan guage that anyone can understand, or one can encrypt the language one speaks, so only the intended listeners can understand what one says. 19 What others see of you is within your control; whether oth ers understand of you is within your control as well We can call this general power of control a power of privacy 20 It is the power to determine what others will know about you; the power to determine whether they will kn now your name or who you are, the power to determine whether they will know what you say, or even what language you speak. Anonymity refers to the power to control whether people know who you are; it is a tool of privacy Encryption is the power to control whether people know what lan guage you speak; it too is a tool of privacy real life. If one wants to hide who one is, one can don a mask To some degree, technologies of privacy exist everywhere use a fake name. One can speak in code, or in a language that very few understand. Not many people do, of course. The streets are not filled with masked men, and it is actually quite difficult to use a fake name. But nonetheless, since espionage began, there have been techniques for appearing as other than who one is, and people have used these techniques to construct a certain personal anonymity But anonymity in cyberspace is not just different in degree from anonymity in real space. As cyberspace presently is, it gives an in dividual a kind of power that doesn't exist in real space. This is not just the ability to put on a mask; it is the ability to hide absolutely 18 I am following Monroe Price in this distinction. See Monroe Price,Free Expression and Digital Dreams, 22 CRITICAL INQ. 64, 67(1995). It is this ar hitecture of openness that makes possible the world Tim May describes as crypto-anarchy See Timothy C May, Crypto-Anarchy and Virtual Communi ties, Posted to Cypherpunks List, December 1994 19 On the technologies of encryption, see A. Michael Froomkin, The Meta phor Is the Key: Cryptograph, the Clipper Chip, and the Constitution, 143 U PA L REv. 709(1995); U.S. Cong Off. Techn. Assessment, Information Se- curity and Privacy in Network Environments, 111-32(1994). On the constitu- tionality of government control of encryption, see Froomkin, supra 20 See ANNE WELLS BRANSCOMB, WHO OWNS INFORMATION? 44-45(1994) OSCAR GANDY, THE PANOPTIC SORT 190(1993); M. ETHAN KATSH, LAW IN A DIGITAL WORLD 228(1995); M. ETHAN KATSH, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW 189-97(1989). See also JEFFREY ROTHFEDER, PRIVACY FOR SALE(1992): ALAN WESTIN, PRIVACY AND FREEDOM(1967)
45 EMORY L. J. NO. 3 (1996) — 8 — The architecture of cyberspace—as it is just now—is open.18 One enters cyberspace as one wants. One can enter identifying who one is, or one can hide who one is. One can enter speaking a language that anyone can understand, or one can encrypt the language one speaks, so only the intended listeners can understand what one says.19 What others see of you is within your control; whether others understand of you is within your control as well. We can call this general power of control a power of privacy.20 It is the power to determine what others will know about you; the power to determine whether they will know your name, or who you are; the power to determine whether they will know what you say, or even what language you speak. Anonymity refers to the power to control whether people know who you are; it is a tool of privacy. Encryption is the power to control whether people know what language you speak; it too is a tool of privacy. To some degree, technologies of privacy exist everywhere in real life. If one wants to hide who one is, one can don a mask, or use a fake name. One can speak in code, or in a language that very few understand. Not many people do, of course. The streets are not filled with masked men, and it is actually quite difficult to use a fake name. But nonetheless, since espionage began, there have been techniques for appearing as other than who one is, and people have used these techniques to construct a certain personal anonymity. But anonymity in cyberspace is not just different in degree from anonymity in real space. As cyberspace presently is, it gives an individual a kind of power that doesn’t exist in real space. This is not just the ability to put on a mask; it is the ability to hide absolutely 18 I am following Monroe Price in this distinction. See Monroe Price, Free Expression and Digital Dreams, 22 CRITICAL INQ. 64, 67 (1995). It is this architecture of openness that makes possible the world Tim May describes as crypto-anarchy. See Timothy C. May, Crypto-Anarchy and Virtual Communities, Posted to Cypherpunks List, December 1994. 19 On the technologies of encryption, see A. Michael Froomkin, The Metaphor Is the Key: Cryptograph, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709 (1995); U.S. Cong. Off. Techn. Assessment, Information Security and Privacy in Network Environments, 111-32 (1994). On the constitutionality of government control of encryption, see Froomkin, supra. 20 See ANNE WELLS BRANSCOMB, WHO OWNS INFORMATION? 44-45 (1994); OSCAR GANDY, THE PANOPTIC SORT 190 (1993); M. ETHAN KATSH, LAW IN A DIGITAL WORLD 228 (1995); M. ETHAN KATSH, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW 189-97 (1989). See also JEFFREY ROTHFEDER, PRIVACY FOR SALE (1992); ALAN WESTIN, PRIVACY AND FREEDOM (1967)
READING THE CONSTITUTION IN CYBERSPACE who one is. It is not just the ability to speak a different, or encoded, language; it is the ability to speak a language that is(practically)im- possible to crack. 21 Cyberspace is a place that maximizes both social and individual plasticity, which means it is a place that determines very little about what others must know about you This power of privacy is not inherently bad. 22 Indeed, one way to understand its salience is as a reaction to just the opposite trend he powers of surveillance have increased(through sophisticated transaction tracking devices that can collect profiles of individual behavior and predict future behavior on the basis of these profiles) one might well understand the anonymity as a effort at reclaiming private space lost. As the number of eyes that watch increase, ano- nymity becomes a more effective technology to block the vision of any one set. So understood, these tools of privacy are accommoda tions to the increased power of surveillance that the changing tech nologies of surveillance have created 23 The most important place for this technology will be com merce24 There was a time when we relied upon another tool of anonymity to a very large degree: cash. Cash is an al most perfect tool of anonym Nothing in its nature reveals anything ab person using it; it is self-authenticating, depending upon individual credentials not at all. One could use cash. and unless identification were independently given, the identity of the one who used the casl would be lost to the system. Cash flows without a trace 21 There is in fact an ongoing question about whether these algorithms can be cracked. See Froomkin, supra note 19, at 735-42. Levy describes an example where the Internet facilitated a conspiracy to crack a code, with great success. See Steven Levy, Wisecrackers, WIRED, Mar. 1996, at 128. Where this struggle end 3 See sTEvEN L NocK. THE COSTS OF PRIVACY and extremely helpful discussion of privacy in cyber see anne meredith Fulton, Cyberspace and the Internet: Who will Privacy Police? COMMLAW CONSPECTUS 63(1995) with Anonymity, Digital Cash, and Distributed databases, 15 J. L& COM. 39
READING THE CONSTITUTION IN CYBERSPACE — 9 — who one is. It is not just the ability to speak a different, or encoded, language; it is the ability to speak a language that is (practically) impossible to crack.21 Cyberspace is a place that maximizes both social and individual plasticity, which means it is a place that determines very little about what others must know about you. This power of privacy is not inherently bad.22 Indeed, one way to understand its salience is as a reaction to just the opposite trend. As the powers of surveillance have increased (through sophisticated transaction tracking devices that can collect profiles of individual behavior and predict future behavior on the basis of these profiles), one might well understand the anonymity as a effort at reclaiming private space lost. As the number of eyes that watch increase, anonymity becomes a more effective technology to block the vision of any one set. So understood, these tools of privacy are accommodations to the increased power of surveillance that the changing technologies of surveillance have created.23 The most important place for this technology will be commerce.24 There was a time when we relied upon another tool of anonymity to a very large degree: cash. Cash is an almost perfect tool of anonymity. Nothing in its nature reveals anything about the person using it; it is self-authenticating, depending upon individual credentials not at all. One could use cash, and unless identification were independently given, the identity of the one who used the cash would be lost to the system. Cash flows without a trace. 21 There is in fact an ongoing question about whether these algorithms can be cracked. See Froomkin, supra note 19, at 735-42. Levy describes an example where the Internet facilitated a conspiracy to crack a code, with great success. See Steven Levy, Wisecrackers, WIRED, Mar. 1996, at 128. Where this struggle ends is yet undetermined. 22 But see RICHARD A. POSNER, OVERCOMING LAW ch. 25 (1995). 23 See STEVEN L. NOCK, THE COSTS OF PRIVACY 1-14 (1993). For a general and extremely helpful discussion of privacy in cyberspace, see Anne Meredith Fulton, Cyberspace and the Internet: Who Will Be the Privacy Police?, 3 COMMLAW CONSPECTUS 63 (1995). 24 See A. Michael Froomkin, Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & COM. 395 (1996)
45 EMORY L J. NO. 3(1996) Digital cash25 is the next great cash station. 26 Digital cash, like regular cash, can be traded without traceability 27 Giving digital cash to another creates a credit in their account without any traceable liability to the giver. More importantly, such transfers can occur without the most common burden of cash getting in the way-the risk of loss. One can move $1,000,000 in digital cash with just the touch of a button; one can move $1, 000, 000 in regular cash only with a wheelbarrow But when one begins to think of digital cash, and then encrypted conversation, and when one puts the two together, one begins to see the fear this very same power of anonymity creates 28 For anonym- ity becomes a technology for the perfect crime. 29 And the question then becomes whether there is an ability-let' s start and stop with constitutional permissibility--to regulate this anonymity What kind of regulation would this be? It would certainly be too broad to ban all encrypted conversation. 30 Indeed, there may well be a constitutional right to encryption, as a constitutional accommoda tion to the paucity of constitutional protection for personal informa 5 Private money has a long history in America; see VIVIANA A. ZELIZER, THE SOCIAL MEANING OF MONEY (1994). One might wonder to what extent the government will allow competing currency to return 6 See, e. g, KEVIN KELLY, OUT OF CONTROL 203-30(1994) cally necessary. Indeed, my central point is that there is very little that is necessary and too much that is possible 28 For an excellent discussion of legal dilemmas related to these questions, see Michael Rustad Lori E. Eisenschmidt, The Commercial Law of Internet Secu rity, 10 HIGH TECH. L.J. 213(1995) 29 See Froomkin, supra note 19, at 727; BUILDING IN BIG BROTHER: THE CRYPTOGRAPHIC POLICY DEBATE 323-91 (Lance J. Hoffman ed, 1994). For a more immediate concern about the negative consequences of anonymity,see Mclntyre v Ohio Elections Comm'n, 115 S Ct 1511, 1537(1995)(Scalia, J 30 This has not stopped some states from trying. See 18 PA. CONS. STAT 8910(Supp. 1996)(Pennsylvania statute making it a crime to possess a pro- gram or device which can be used to" conceal or to assist another to conceal the or place of origin or of destination of any tele Ilso Lawrence Lessig, The Path of Cyberlaw, 104 YALE L J. 1743, 1750 n 20 95)(Connecticut bill)
45 EMORY L. J. NO. 3 (1996) — 10 — Digital cash25 is the next great cash station.26 Digital cash, like regular cash, can be traded without traceability.27 Giving digital cash to another creates a credit in their account without any traceable liability to the giver. More importantly, such transfers can occur without the most common burden of cash getting in the way—the risk of loss. One can move $1,000,000 in digital cash with just the touch of a button; one can move $1,000,000 in regular cash only with a wheelbarrow. But when one begins to think of digital cash, and then encrypted conversation, and when one puts the two together, one begins to see the fear this very same power of anonymity creates.28 For anonymity becomes a technology for the perfect crime.29 And the question then becomes whether there is an ability—let’s start and stop with constitutional permissibility—to regulate this anonymity. What kind of regulation would this be? It would certainly be too broad to ban all encrypted conversation.30 Indeed, there may well be a constitutional right to encryption, as a constitutional accommodation to the paucity of constitutional protection for personal informa- 25 Private money has a long history in America; see VIVIANA A. ZELIZER, THE SOCIAL MEANING OF MONEY (1994). One might wonder to what extent the government will allow competing currency to return. 26 See, e.g., KEVIN KELLY, OUT OF CONTROL 203-30 (1994). 27 I am talking about what is technologically possible, not what is technologically necessary. Indeed, my central point is that there is very little that is “necessary” and too much that is possible. 28 For an excellent discussion of legal dilemmas related to these questions, see Michael Rustad & Lori E. Eisenschmidt, The Commercial Law of Internet Security, 10 HIGH TECH. L.J. 213 (1995). 29 See Froomkin, supra note 19, at 727; BUILDING IN BIG BROTHER: THE CRYPTOGRAPHIC POLICY DEBATE 323-91 (Lance J. Hoffman ed., 1994). For a more immediate concern about the negative consequences of anonymity, see McIntyre v. Ohio Elections Comm’n, 115 S. Ct. 1511, 1537 (1995) (Scalia, J., dissenting). 30 This has not stopped some states from trying. See 18 PA. CONS. STAT. § 910 (Supp. 1996) (Pennsylvania statute making it a crime to possess a program or device which can be used to “conceal or to assist another to conceal the existence or place of origin or of destination of any telecommunication”). See also Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1750 n.20 (1995) (Connecticut bill)