Constitution 3.0

From EDD Update.


Jeffrey Rosen is the co-editor (with Benjamin Wittes) of a new book from The Brookings Institute, Constitution 3.0: Freedom and Technological Change. A constitutional law scholar, Rosen addresses the effect of changing technology on constitutional issues, and recently was interviewed on NPR. 

Rosen claims that “lawyers at Facebook and Google and Microsoft have more power over the future of privacy and free expression than any king or president or Supreme Court justice.”

In the book, Rosen suggests that new technologies, such as GPS tracking, are “challenging our Constitutional categories in really dramatic ways . . . And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today.” 

Rosen seems to point to two ways in which technology has changed the perception of privacy, at least how the Fourth Amendment is concerned. First, there is the consideration of the amount of privacy people can expect in public places.  Second, there is the difference between short-term and long-term surveillance. 

In the book, leading legal scholars were asked to imagine technologies and hypothetiucal situations that might be developed in the next few decades that would challenge current thinking about constitutional privacy protections. One scenario he describes is particularly interesting:  websites such as Google post video from live surveillance cameras online and archive those videos in a database. Add in facial recognition abilities of Facebook, and it could be possible to search for the location of individual persons at any given time.  The challenge is the police could use this surveillance without any apparent Fourth Amendment limitations because no government action would be involved in obtaining the data.

Listen to the NPR interview.

Personal Experience with Find My Friends

From EDD Update.

TMI or Life Saver?

I learned last week that too much information from tech can be a bad thing.

Apple last month released the “Find My Friends” feature on iPhones.  This featrure allows users to view the current locations of other users — who agree — on a map. While sold as a way to track and meet up with friends, I am guessing that the feature is most popular with families. 

Predictably, last month stories started to appear that one of the great uses for “Find My Friends” is the discovery of cheating spouses. One person posted on a web site that he had used the feature to discover that his wife was with another man when she had claimed that she was at a friend’s house in another part of town. 

One commentator noted:

I am sure at this very moment that John Grisham is calling his agent and musing about a new novel — set somewhere in Mississippi — where the plot will turn on the cheery new functions of an iPhone 4S. The plot will, no doubt, turn on whether planning such a ruse would constitute admissible evidence. . . .

Quite soon, I feel sure that happy couples will be making their promises at the front of churches and include this wording: "Till death do us part. Or till I discover that my sleazy little spouse has been secretly following my movements with an adorable little Apple app.

An author in Forbes took a more ominous view of the technology:

Will being given technology tools that make law-enforcement-style surveillance so easy a baby could do it transform us (more than Facebook already has) into a society of spies? Just as we expect everyone to have a Facebook account, perhaps we’ll start expecting everyone to volunteer their whereabouts at all times, as part of the “social OS.” If a friend (or a spouse) chooses NOT to be tracked, will we assume they are up to no good?

My own story is less exciting. We use “Find My Friends” and have found it useful for much more mundane purposes, such as calculating when someone on the road will be home from work. Earlier this week, I was picking up the kids because my wife had an appointment in another city. I called my wife but she did not answer, so I checked where she was on Find My Friends.  To my shock, her location was at the local hospital. I checked again, got the same result, and did a quick U-Turn to head to the hospital.

Then story has a happy ending — she had stopped at a jewelry sale by the hospital auxiliary.  But for about 10 minutes I was panicked and worried.

The moral of the story is obvious.  At the risk of sounding like Andy Rooney, maybe sometimes we really were better off before we had all of this technology.