Cyber Rights and the Constitution

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Cyber Rights and the Constitution

• Mike Godwin
• PORTIA Project
• February 2006

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First Amendment

• Congress shall make no law respecting an
  establishment of religion or prohibiting the free
  exercise thereof or abridging the freedom of
  speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  government for a redress of grievances.

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First Amendment

• When is speech so dangerous that it can be
  restricted?
• What constitutes speech in the digital world?
• Speech and press converge.
• Viruses themselves not speech. But what about
  virus source code?

4
First Amendment

• Tensions between speech and privacy rights.
• Constitution puts limits on direct government
  infringements of privacy, but not on private
  actors. Also, few limits on indirect
  infringements by government.
• Legal system does little to limit private action
  that infringes on privacy.
• Some exceptions the Privacy Torts

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The Privacy Torts

• False-light misrepresentation.
• Intrusion upon seclusion.
• Misappropriation of name or likeness.
• Publication of embarrassing private facts.

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The Privacy Torts

• One common element is generally some kind of
  publication/publicity. (This is a First Amendment
  connection.) Exception intrusion upon
  seclusion.
• Ironically, you have to become even more public
  to seek a remedy.
• Example Jessica Cutlers blog.

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Fourth Amendment

• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no Warrants shall issue, but upon
  probable cause, supported by Oath or affirmation,
  and particularly describing the place to be
  searched, and the persons or things to be seized.

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Fourth Amendment

• Probable cause
• Reasonableness
• Particularity
• Warrant based on oath or affirmation
• Neutral magistrate

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Fourth Amendment

• Searching and seizing communications
• Olmstead v. United States (1921)
• Goldman v. United States (1943)
• Silverman v. United States (1961)
• An evolving understanding of constitutional
  protections against government infringements of
  privacy rights.

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Fourth Amendment

• Katz v. United States (1967) -- reasonable
  expectation of privacy
• Constitution protects persons, not places.
• Responses the Wiretap Act in 1968, the Foreign
  Intelligence Surveillance Act in the 1970s.

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Computer/message seizures may implicate...

• The Fourth Amendment when mere data is sought.
• The First Amendment when computer is a locus of
  publication (e.g., a blog or BBS).
• The Electronic Communications Privacy Act and the
  Wiretap Act.
• The Foreign Intelligence Surveillance Act
• The Privacy Protection Act of 1980

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Fifth Amendment

• No person ... shall be compelled in any criminal
  case to be a witness against himself, nor be
  deprived of life, liberty, or property without
  due process of law....
• What about disclosure of passwords or encryption
  keys?