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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."

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