Constitution 3.0: Freedom and Technological Change

Brookings Institution Press
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At the beginning of the twenty-first century, breathtaking changes in technology are posing stark challenges to our constitutional values. From free speech to privacy, from liberty and personal autonomy to the right against self-incrimination, basic constitutional principles are under stress from technological advances unimaginable even a few decades ago, let alone during the founding era. In this provocative collection, America's leading scholars of technology, law, and ethics imagine how to translate and preserve constitutional and legal values at a time of dizzying technological change.

Constitution 3.0 explores some of the most urgent constitutional questions of the near future. Will privacy become obsolete, for example, in a world where ubiquitous surveillance is becoming the norm? Imagine that Facebook and Google post live feeds from public and private surveillance cameras, allowing 24/7 tracking of any citizen in the world. How can we protect free speech now that Facebook and Google have more power than any king, president, or Supreme Court justice to decide who can speak and who can be heard? How will advanced brain-scan technology affect the constitutional right against self-incrimination? And on a more elemental level, should people have the right to manipulate their genes and design their own babies? Should we be allowed to patent new forms of life that seem virtually human? The constitutional challenges posed by technological progress are wide-ranging, with potential impacts on nearly every aspect of life in America and around the world.

The authors include Jamie Boyle, Duke Law School; Eric Cohen and Robert George, Princeton University; Jack Goldsmith, Harvard Law School; Orin Kerr, George Washington University Law School; Lawrence Lessig, Harvard Law School; Stephen Morse, University of Pennsylvania Law School; John Robertson, University of Texas Law School; Christopher Slobogin, Vanderbilt Law School; O. Carter Snead, Notre Dame Law School; Jeffrey Rosen, George Washington University Law School; Benjamin Wittes, Brookings Institution; Tim Wu, Columbia Law School; and Jonathan Zittrain, Harvard Law School.

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About the author

Jeffrey Rosen is a professor of law at the George Washington University Law School, the legal affairs editor of The New Republic, and a nonresident senior fellow at Brookings. His books include The Unwanted Gaze, The Naked Crowd, and The Supreme Court.

Benjamin Wittes is a senior fellow in Governance Studies at the Brookings Institution. He is the author of Law and the Long War and Detention and Denial.

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Additional Information

Publisher
Brookings Institution Press
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Published on
Nov 11, 2011
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Pages
271
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ISBN
9780815722137
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Language
English
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Genres
Law / Constitutional
Law / Privacy
Law / Science & Technology
Political Science / Public Policy / Social Policy
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Content Protection
This content is DRM protected.
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Many critics attack federal judges as anti-democratic elitists, activists out of step with the mainstream of American thought. But others argue that judges should stand alone as the ultimate guardians of American values, placing principle before the views of the people. In The Most Democratic Branch, Jeffrey Rosen disagrees with both assertions. Contrary to what interest groups may claim, he contends that, from the days of John Marshall right up to the present, the federal courts by and large have reflected the opinions of the mainstream. More important, he argues that the Supreme Court is most successful when it defers to the constitutional views of the American people, as represented most notably by Congress and the Presidency. And on the rare occasion when they departed from the consensus, the result has often been a disaster. To illustrate, Rosen provides a penetrating look at some of the most important Supreme Court cases in American history--cases involving racial equality, affirmative action, abortion, gay rights and gay marriage, the right to die, electoral disputes, and civil liberties in wartime. Rosen shows that the most notorious constitutional decisions in American history--the ones that have been most strenuously criticized, such as Dred Scott or Roe v. Wade--have gone against mainstream opinion. By contrast, the most successful decisions--from Marbury v. Madison to Brown v. Board of Education--have avoided imposing constitutional principles over the wishes of the people. Rosen concludes that the judiciary works best when it identifies the constitutional principles accepted by a majority of Americans, and enforces them unequivocally as fundamental law. Jeffrey Rosen is one of the most respected legal experts writing today, a regular contributor to The New York Times Magazine and the Legal Affairs Editor of The New Republic. The provocative arguments that he puts forth here are bound to fuel heated debate at a time when the federal judiciary is already the focus of fierce criticism.
The twenty-first-century telecommunications landscape is radically different from the one that prevailed as recently as the last decade of the twentieth century. Robert Litan and Hal Singer argue that given the speed of innovation in this sector, the Federal Communications Commission's outdated policies and rules are inhibiting investment in the telecom industry, specifically in fast broadband networks. This pithy handbook presents the kind of fundamental rethinking needed to bring communications policy in line with technological advances.

Fast broadband has huge societal benefits, enabling all kinds of applications in telemedicine, entertainment, retailing, education, and energy that would have been unthinkable a few years ago. Those benefits would be even greater if the FCC adopted policies that encouraged more broadband providers, especially wireless providers, to make their services available in the roughly half of the country where consumers currently have no choice in wireline providers offering download speeds that satisfy the FCC's current standards.

The authors' recommendations include allowing broadband providers to charge for premium delivery services; embracing a rule-of-reason approach to all matters involving vertical arrangements; stripping the FCC of its merger review authority because both the Federal Trade Commission and the Justice Department have the authority to stop anticompetitive mergers; eliminating the FCC's ability to condition spectrum purchases on the identity, business plans, or spectrum holdings of a bidder; and freeing telephone companies from outdated regulations that require them to maintain both a legacy copper network and a modem IP network.

These changes and others advanced in this book would greatly enhance consumer welfare with respect to telecommunications services and the applications built around them.

In The Naked Crowd, acclaimed author Jeffrey Rosen makes an impassioned argument about how to preserve freedom, privacy, and security in a post-9/11 world. How we use emerging technologies, he insists, will be crucial to the preservation of essential American ideals.

In our zeal to catch terrorists and prevent future catastrophic events, we are going too far—largely because of irrational fears—and violating essential American freedoms. That’s the contention at the center of this persuasive new polemic by Jeffrey Rosen, legal affairs editor of The New Republic, which builds on his award-winning book The Unwanted Gaze.

Through wide-ranging reportage and cultural analysis, Rosen argues that it is possible to strike an effective and reasonable balance between liberty and security. Traveling from England to Silicon Valley, he offers a penetrating account of why well-designed laws and technologies have not always been adopted. Drawing on a broad range of sources—from the psychology of fear to the latest Code Orange alerts and airport security technologies—he also explores the reasons that the public, the legislatures, the courts, and technologists have made feel-good choices that give us the illusion of safety without actually making us safer. He describes the dangers of implementing poorly thought out technologies that can make us less free while distracting our attention from responses to terrorism that might work.

Rosen also considers the social and technological reasons that the risk-averse democracies of the West continue to demand ever-increasing levels of personal exposure in a search for an illusory and emotional feeling of security. In Web logs, chat rooms, and reality TV shows, an increasing number of citizens clutter the public sphere with private revelations best kept to themselves. The result is the peculiar ordeal of living in the Naked Crowd, in which few aspects of our lives are immune from public scrutiny. With vivid prose and persuasive analysis, The Naked Crowd is both an urgent warning about the choices we face in responding to legitimate fears of terror and a vision for a better future.


From the Hardcover edition.
As thinking, writing, and gossip increasingly take place in cyberspace, the part of our life that can be monitored and searched has vastly expanded. E-mail, even after it is deleted, becomes a permanent record that can be resurrected by employers or prosecutors at any point in the future. On the Internet, every website we visit, every store we browse in, every magazine we skim--and the amount of time we skim it--create electronic footprints that can be traced back to us, revealing detailed patterns about our tastes, preferences, and intimate thoughts.
        
In this pathbreaking book, Jeffrey Rosen explores the legal, technological, and cultural changes that have undermined our ability to control how much personal information about ourselves is communicated to others, and he proposes ways of reconstructing some of the zones of privacy that law and technology have been allowed to invade. In the eighteenth century, when the Bill of Rights was drafted, the spectacle of state agents breaking into a citizen's home and rummaging through his or her private diaries was considered the paradigm case of an unconstitutional search and seizure. But during the impeachment of President Bill Clinton, prosecutors were able to subpoena Monica Lewinsky's bookstore receipts and to retrieve unsent love letters from her home computer. And the sense of violation that Monica Lewinsky experienced is not unique. In a world in which everything that Americans read, write, and buy can be recorded and monitored in cyberspace, there is a growing danger that intimate personal information originally disclosed only to our friends and colleagues may be exposed to--and misinterpreted by--a less understanding audience of strangers.
        
Privacy is important, Rosen argues, because it protects us from being judged out of context in a world of short attention spans, a world in which isolated bits of intimate information can be confused with genuine knowledge. Rosen  also examines the expansion of sexual-harassment law that has given employers an incentive to monitor our e-mail, Internet browsing habits, and office romances. And he suggests that some forms of offensive speech in the workplace--including the indignities allegedly suffered by Paula Jones and Anita Hill--are better conceived of as invasions of privacy than as examples of sex discrimination. Combining discussions of current events--from Kenneth Starr's tapes to DoubleClick's on-line profiles--with inno-vative legal and cultural analysis, The Unwanted Gaze offers a powerful challenge to Americans to be proactive in the face of new threats to privacy in the twenty-first century.


From the Hardcover edition.
Many critics attack federal judges as anti-democratic elitists, activists out of step with the mainstream of American thought. But others argue that judges should stand alone as the ultimate guardians of American values, placing principle before the views of the people. In The Most Democratic Branch, Jeffrey Rosen disagrees with both assertions. Contrary to what interest groups may claim, he contends that, from the days of John Marshall right up to the present, the federal courts by and large have reflected the opinions of the mainstream. More important, he argues that the Supreme Court is most successful when it defers to the constitutional views of the American people, as represented most notably by Congress and the Presidency. And on the rare occasion when they departed from the consensus, the result has often been a disaster. To illustrate, Rosen provides a penetrating look at some of the most important Supreme Court cases in American history--cases involving racial equality, affirmative action, abortion, gay rights and gay marriage, the right to die, electoral disputes, and civil liberties in wartime. Rosen shows that the most notorious constitutional decisions in American history--the ones that have been most strenuously criticized, such as Dred Scott or Roe v. Wade--have gone against mainstream opinion. By contrast, the most successful decisions--from Marbury v. Madison to Brown v. Board of Education--have avoided imposing constitutional principles over the wishes of the people. Rosen concludes that the judiciary works best when it identifies the constitutional principles accepted by a majority of Americans, and enforces them unequivocally as fundamental law. Jeffrey Rosen is one of the most respected legal experts writing today, a regular contributor to The New York Times Magazine and the Legal Affairs Editor of The New Republic. The provocative arguments that he puts forth here are bound to fuel heated debate at a time when the federal judiciary is already the focus of fierce criticism.
"Our current stalemate over detention serves nobody—not the military or any other component of the U.S. government that has to operate overseas.... It is a system that no rational combination of values or strategic considerations would have produced; it could have emerged only as a consequence of a clash of interests that produced a clear victory for nobody."—from the Introduction

Benjamin Wittes issues a persuasive call for greater coherence, clarity, and public candor from the American government regarding its detention policy and practices, and greater citizen awareness of the same. In Detention and Denial, he illustrates how U.S. detention policy is a tangle of obfuscation rather than a serious set of moral and legal decisions. Far from sharpening focus and defining clear parameters for action, it sends mixed signals, muddies the legal and military waters, and produces perverse incentives. Its random operation makes a mockery of the human rights concerns that prompted the limited amount of legal scrutiny that detention has received to date. The government may actually be painting itself into a corner, leaving itself unable to explain or justify actions it may need to take in the future. The situation is unsustainable and must be addressed.

Preventive detention is a touchy subject, an easy target for eager-to-please candidates and indignant media, so public officials remain largely mum on the issue. Many Americans would be surprised to learn that no broad principle in American jurisprudence actually prohibits preventive detention; rather, the law "eschews it except when legislatures and courts deem it necessary to prevent grave public harm." But the habeas corpus legal cases that have come out of the Guantánamo Bay detentionfacility—which remains open, despite popular expectations to the contrary—have addressed only a small slice of the overall issue and have not—and will not—produce a coherent body of policy.

U.S. government and security forces need clear and consistent application of their detention policies, and Americans must be better informed about them. To that end, Wittes critiques America's current muddled detention policies and sets forth a detention policy based on candor. It would set clear rules and distinguish several types of detention, based on characteristics of the detainees themselves rather than where they were captured. Congress would follow steps to "devise a coherent policy to regulate the U.S. system of detention, a system that the country cannot avoid developing."

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