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.
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.
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.
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."