recommended reading

How technology will test the Constitution

As technology advances, governments and citizens will face constitutional and legal questions that could barely have been imagined before, legal scholars at the Brookings Institution said Tuesday.

Could Google or Facebook, in 2030, for instance, live stream feeds from security cameras dotting the globe? Or would that violate U.S. citizens' Fourth Amendment protections against unreasonable searches? asked Jeffrey Rosen, a George Washington University law professor and co-editor of Brookings' "Constitution 3.0" study, which formed the basis of Tuesday's panel discussion.

What if Congress wanted to block a gay couple from splicing DNA to create a fertilized egg that includes both their genetic material? Rosen asked. Would that egg be protected by the same presumptive right to privacy that the U.S. Supreme Court said upheld a woman's right to an abortion in Roe v. Wade?

What if police began carrying handheld functional magnetic resonance imaging machines that use brain wave patterns to indicate whether a person has seen a particular place before? Rosen asked. Could police detain an American citizen based on machine evidence that he had seen a particular terrorist training camp in Afghanistan before? Or would that violate his Fourth Amendment protections from unreasonable searches and his Fifth Amendment right against incriminating himself?

"Courts might hold that we put out our brain waves the same way that we put out the trash and therefore have no expectation of privacy," Rosen said. "Or they might say that there is some core of cognitive liberty that can't be unreasonably searched by FMRI machines."

Governments already are navigating the conflicts between technology and privacy, Rosen and other panelists said. Both the Bush and Obama administrations, for instance, pressed for the controversial airport scanning machines that effectively show naked images of people walking through security scanners. They rejected what Rosen has called a "blob machine," adopted in parts of Europe, which displays "a sexless, nondescript, blob-like avatar with a stylish baseball cap for extra modesty and [points] at the part of the body where something suspicious [is] concealed," he said. Now, however, the Obama administration is reconsidering the more modest option.

The development of massive, government-produced data sets also has led to new privacy concerns, panelists said. It used to be easy to ensure data collected by the Centers for Disease Control and Prevention and the Agriculture and Education departments were anonymous. But federal data crunchers now have to worry about tech-savvy snoopers mashing together multiple data sets to find out who in a small town is in special education classes, receiving food stamps or being treated for a sexually transmitted disease.

In a 2001 Supreme Court decision that Rosen said could set a precedent for his hypothetical brain scanning case, the court ruled that Interior Department agents needed a warrant to use heat-sensing devices outside a man's home to determine whether he was growing marijuana inside.

This term, the Supreme Court heard oral arguments in the case of a man charged with cocaine dealing whom police tracked with a warrantless Global Positioning System device attached to his truck for four weeks. Government lawyers argued police didn't need a warrant to track the man because his truck was always outside, where he had no right to expect he wouldn't be observed by police. Defense attorneys argued that the man had a right to expect he wouldn't be observed by police 100 percent of the time.

Legal scholars have debated whether tracking people with a planted GPS device is fundamentally different from following them through the GPS devices installed in their cellphones, but the high court is unlikely to address that issue in this case.

That question brings up what one Brookings' panelist, Notre Dame Law Professor O. Carter Snead, called "cyborg law."

"In these science-fiction stories there's always this thing that bolts onto someone's head, or you become half robot, or you have a really strong arm that can throw boulders or something," Snead said. "But what's the difference between that and having a phone computer with you all the time that's tracking where you are and storing all your personal information . . . and that does all kinds of powerful things and speaks different languages?

"With our phones we're actually technologically enhanced creatures," Snead said, "and those technological enhancements make us vulnerable to more government supervision and privacy invasions . . . The part of us that's not human, not organic, has no rights now. And we humans have rights, but the divide [between us and our phones] is becoming very small."

Threatwatch Alert

Thousands of cyber attacks occur each day

See the latest threats

JOIN THE DISCUSSION

Close [ x ] More from Nextgov
 
 

Thank you for subscribing to newsletters from Nextgov.com.
We think these reports might interest you:

  • Modernizing IT for Mission Success

    Surveying Federal and Defense Leaders on Priorities and Challenges at the Tactical Edge

    Download
  • Communicating Innovation in Federal Government

    Federal Government spending on ‘obsolete technology’ continues to increase. Supporting the twin pillars of improved digital service delivery for citizens on the one hand, and the increasingly optimized and flexible working practices for federal employees on the other, are neither easy nor inexpensive tasks. This whitepaper explores how federal agencies can leverage the value of existing agency technology assets while offering IT leaders the ability to implement the kind of employee productivity, citizen service improvements and security demanded by federal oversight.

    Download
  • Effective Ransomware Response

    This whitepaper provides an overview and understanding of ransomware and how to successfully combat it.

    Download
  • Forecasting Cloud's Future

    Conversations with Federal, State, and Local Technology Leaders on Cloud-Driven Digital Transformation

    Download
  • IT Transformation Trends: Flash Storage as a Strategic IT Asset

    MIT Technology Review: Flash Storage As a Strategic IT Asset For the first time in decades, IT leaders now consider all-flash storage as a strategic IT asset. IT has become a new operating model that enables self-service with high performance, density and resiliency. It also offers the self-service agility of the public cloud combined with the security, performance, and cost-effectiveness of a private cloud. Download this MIT Technology Review paper to learn more about how all-flash storage is transforming the data center.

    Download

When you download a report, your information may be shared with the underwriters of that document.