Wisconsin Public Television University Place  Computers, Privacy and the Government  Jeffery Rosen  3/12/13 UP347  cc I'm Alan Rubel. I'm an assistant professor here at UW in the School of Library and Information Studies, and it's my pleasure to introduce our next speaker, who I think will have a lot to say that resonates on a different facet of this issue from Roger's talk. And I think it will be a very interesting juxtaposition. Let me welcome Jeffrey Rosen. Jeffrey Rosen is a professor of law at the George Washington University. He's also the legal affairs editor of the New Republic. He is a widely published author, both in print journalism, in academic journalism, and in number of books that sort of cross the divide between academic stuff and legal affairs and journalism. He, I think, brings a really interesting perspective to some of these issues. He focuses on the area of law and technology. Specifically his recent work has been on, some of his recent work has been on privacy, and his latest book is called Constitution 3.0, which is about constitutional problems in the technological age. 

So, please welcome Jeffrey Rosen. [APPLAUSE]  >> Thank you so much. It's such a pleasure to be here and to follow such a riveting talk. Thank you, Roger, for the work that you're doing on behalf of anonymity and for explaining it so lucidly. So, I will indeed focus on a related but different aspect of anonymity. Roger talked about the difficulty of maintaining anonymity online, and I want to talk about future challenges to maintaining anonymity in public places when we walk down the street. And I want to describe to you the kind of technology. You're shaking your head already. You thought it wasn't bad enough. Roger just cheered you up too much. 

I'm going to make you feel even worse. [LAUGHTER] Because I'm about to tell you about the kind of threats that we all know we're up against when it comes to anonymity in public. I was at a conference at Google, now several years ago in 2007, and the head of public policy at that time made a prediction that then seemed like science fiction but now seems like tomorrow's headlines. He said that he expected that within just a few years, Google and Facebook would be asked to put live and online feeds of all the public and private surveillance cameras that now blanket the globe. So you know that there are already some of these camera feeds in London on subways and in Washington on the mall. And they were set up as closed circuit television networks, but they're increasingly open circuit television networks. Facebook is allowing access to beach cameras in Mexico if you use a particular Facebook app. And the public policy head at Google said that he imagined what happens if Google and Facebook are asked to link the Mexican beach cameras. You're laughing but it's terribly serious because those cameras could be linked. You're laughing nervously because it's a very frightening prospect. 

The beach cameras are linked to the subway cameras in London which are linked to the metro cameras in Washington, and all of these feeds are put online and they're also archived. So using, let's say, Facebook, you go on and click on to any place in the world, say right outside of the center here, click on a picture of anyone, say me as I'm leaving the talk. The image is archived, so back click on me to see where I came before the talk. Forward click to see where I'm going afterward and basically have the possibility of ubiquitous surveillance of everyone at any time in the entire world. Yes, that gets a humph, not a laugh. And you could well imagine Mark Zuckerberg doing this for commercial purposes. He'd say it's a really cool new app. You can check up on your friends and learn stuff. And he would give it a really jazzy name like Open Planet and invite people using Open Planet to check up on each other. I said that that seemed like science fiction at the time, but we now know that just last week Rand Paul in Washington gave a dramatic filibuster against the use of drones. 

And Paul, in particular, wanted to know whether the US government maintained that it could target for assassination American citizens on American soil. And the answer was finally no. But Paul was also concerned about the possibility of drone surveillance, and it's not at all very far down the line to be able to take a drone that is a little larger than a bee or a little insect and, again, zoom in on any suspect, say me, and do the forward click and backward click, but this time you're just kind of ubiquitously surveilling my movements for a month. Would that be permissible? Or to take the lowest tech form of surveillance of all, all of us are carrying in our pockets 24/7 surveillance devices. I have a really low tech version. An AT&T smartphone embedded with a GPS device. Many of you have jazzier iPhones. But the government, by subpoenaing the geolocational records that are stored in third party servers in the digital cloud owned by AT&T and by Yahoo and Google, can reconstruct my movements 24/7 for a month and can maintain the same kind of surveillance that Open Plant and drones make possible. And the question I want to think through with you this evening is, does ubiquitous surveillance, whether conducted online from video cameras or through drones or through smartphones, violate the Fourth Amendment to the Constitution? The Fourth Amendment, you'll recall, says the following: 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 as we ask whether the Open Planet system violates the right of the people to be secure in our persons, houses, papers, and effects, we confront a dilemma at the very beginning of the inquiry which is that it's not clear that the Fourth Amendment binds Mark Zuckerberg at all. 

Mark Zuckerberg, after all, is not the government. He is the head of a large corporation. And the Fourth Amendment binds only the government and not private corporations. All right, but I'm a lawyer so I can come up with an answer to this dilemma. Let's imagine you could change the hypothetical a little bit, as lawyers like to say. Imagine that the government, the CIA or the NSA, is using this Open Planet system to track me because they think I'm a suspected terrorist. And let's imagine that some of the cameras in the system are owned by the government as well as by Google and Facebook and that some of the images are stored in government servers as well as private servers. So that would be enough to create what's called state action, and maybe for that reason the Fourth Amendment might apply. We still face a dilemma. The Supreme Court, in focusing on ubiquitous surveillance, has emphasized the importance of locating an invasion of property rights and has been less able to grapple with the problem of virtual surveillance that doesn't involve physical trespass onto private property. 

And that surprising state of affairs emerged from the most important surveillance case in the past decade, which was decided two years ago, and that's a case called US v Jones. And I'm going to tell you about the facts of that case, remind those of you who know it well, and then tell you about what the court held. And then we can ask ourselves what the implications of that case are for the Open Planet system, for drone surveillance, and for cell phone surveillance. So, US v Jones involved, like many Fourth Amendment cases, a drug investigation. And it happened in Washington, DC, and a lot of these emerge in federal courts, and this was a gentleman, Mr. Jones, who was suspected of dealing drugs. And the police did not have a valid warrant, but they decided to track his movements 24/7 for a month by putting a GPS device, a global positioning system device, on the bottom of his car. And once this device was installed, without his knowledge or consent, they followed his movements and saw that he was associating with suspected drug dealers and going to drug houses, and they introduced this evidence in court and he was convicted of dealing drugs. He objected. He said the Fourth Amendment requires a warrant supported by probable cause for a search to be reasonable. And here, as I mentioned, there was no valid warrant. 

It turns out that the police had tried to get a warrant, and they had plenty of time to get a warrant. They just bungled it. They were supposed to start following him, according to the warrant, within 10 days. Instead they started following him on the 11th day. They were only supposed to follow him within Washington, DC, and instead they started to follow him into Maryland. So, for the purposed of the case, courts assume that there was no valid warrant, and the Obama Administration made the stakes even clearer and more dramatic by taking the rather robust and aggressive position that no warrant is required for 24/7 GPS tracking because US citizens have no expectations of privacy in public. We have, wow. You said wow, but the US Solicitor General, the acting Solicitor General, who, I actually should confess, at the time is my brother-in-law. [LAUGHTER] We had some lively Thanksgiving debates about this case. [LAUGHTER] But he took a position that was actually, he thought, well-supported by existing law, and within the obligation of the Solicitor General's office to defend the government interest, he cited a whole series of cases that said that when we voluntarily surrender information about ourselves in public, we assume the risk that others may be watching us. 

So, just as it's theoretically possible for our neighbors to follow us down the street and just as the Supreme Court said that it's okay for the police to follow our cars for a hundred miles, so the US government said it's perfectly permissible to use virtual technology to achieve that kind of tracking for a month. And they invoked a couple of cases. One is this assumption of risk doctrine. And another is something called the third party doctrine, which sounds kind of technical but is actually important to pause over because it poses the greatest threat to privacy in an age of virtual surveillance that the Fourth Amendment has produced. And the third party doctrine says that when I voluntarily surrender information to a third party for one purpose, I've lost all expectation of privacy in it for all other purposes. So the original case was a bank records case, and the suspect turned over records to a bank to keep bank deposits, and a law then required the bank to turn it over to the police. And the Supreme Court says that's fine because once the information was voluntarily surrendered, it lost all expectations of privacy. And by this theory, when I walk down the street, I'm voluntarily surrendering images that can be captured by third parties, and once those images have been captured, I've lost all expectations of privacy in them. So this was the position that US government took, and it had been accepted by several lower courts, including Judge Posner on the US Court of Appeals for the 7th circuit, a distinguished pragmatist. However, the Supreme Court, in an important, dramatic, and, to some, surprising, 9-0 decision rejected the Obama Administration's claim that we have no expectation of privacy in public, but it did so in a way that doesn't provide very solid protection for the kind of limitations on ubiquitous surveillance that we've been discussing. 

Five members of the court, led by justice Antonin Scalia, emphasized that there had been a physical trespass involved and a seizure of Mr. Jones' property interest in his car. The government had to walk on to the driveway of the suspect to affix the device and physically attach the device to the bottom of the car. Justice Scalia, who is a great formalist in Fourth Amendment cases and has emphasized that the government may not move a stereo in a home even a tiny bit to see the serial number underneath to determine whether it's stolen because he said at the time of the framing of the Constitution even the smallest seizure of property for the purposes of gathering information would have been considered a search, and therefore are governed by the Fourth Amendment. He actually didn't officially decide whether a warrant was actually required in this case. So that, in some sense, was a great victory for privacy because the five members of the court held that the evidence in Mr. Jones' case did, in fact, have to be excluded. But several of the other justices were not persuaded by Justice Scalia's emphasis on physical trespass. In a far ranging and rather bold concurring opinion, Justice Samuel Alito, no liberal slouch he either, questioned Justice Scalia's emphasis on property. First of all, he rejected the whole notion that you could channel what the framers thought about GPS technology. Justice Scalia said, well, it's really just as if, in the time of the framing, a constable spirited himself inside of a coach and was eavesdropping on someone's movements for the space of a month, and Alito said because you'd need basically a thousand constables over the space of a month to get the information that a GPS device did, you'd either need very small constables or a very large coach. [LAUGHTER] He thought the entire analogy was unconvincing. 

But Alito went further and he said, obviously, there are many ways for the government to get the same kind of geolocational information it did in this case without a physical trespass. For example, if the car had had a LoJack device embedded in it, then you could subpoena the geolocational records from the LoJack company being stored in the digital cloud. Or you could simply subpoena the suspects cell phone records and achieve the same kind of ubiquitous 24/7 coverage, again without a physical attachment device and without a physical trespass. Alito, therefore, proposed another test. He, too, agreed that Mr. Jones' privacy interests were unreasonably invaded, but that was because he thought that month-long surveillance of a suspect can reveal so much about us, the political rallies we attend, the bars we visit, the associates that we hang out with, that we do have an expectation of privacy in the whole of our movements. Citizens don't, in fact, expect to be tracked that ubiquitously. Although, they may expect to be tracked by police for a day or neighbors for several hours. Alito was not able to specify the precise moment at which a month-long surveillance is impermissible but day-long surveillance is permissible. He said if the police were unsure, they could simply get a warrant. And in some ways this was a bold leap forward. 

It was a creative victory for privacy. This willingness joined by three liberal justices, Justices Briar, Kagan, and Ginsburg, to recognize that the Fourth Amendment protects not only property but also the intangible interest in not being ubiquitously surveilled and in declaring that to be constitutionally protected. But Alito was not optimistic about the ability of law to keep pace with technology, and he emphasized that, for him, constitutional protections turned on whatever subjective expectations of privacy people actually had. Therefore, once a surveillance technology becomes ubiquitous, if Mark Zuckerberg were to announce tomorrow, hey, Open Planet is up and running, get used to it, or if the Obama Administration were to announce we're going to get all of your cell phone records, expect it, then our expectations would lower and so, according to Alito, would our constitutional protections. So, in some ways, this is a Pyrrhic victory for privacy because it does not escape from the circularity of the Supreme Court's test for evaluating Fourth Amendment violations which turn on subjective expectations of privacy that society is prepared to accept as reasonable. Nevertheless, it was a bold effort, but it doesn't solve our Open Planet problem or our cell phone problem. And then to make things even more interesting, there was a third opinion, a separate opinion by Justice Sonia Sotomayor. She had joined Scalia, to the surprise of some. I think she felt the case could be decided narrowly. But she emphasized that in future cases she was willing to think much more broadly. 

And she said ubiquitous surveillance can, indeed, reveal without physical trespass personal information about our religious, political, and even sexual associations and beliefs. So, that's private information about our thoughts, sensations, and emotions that can be revealed merely by aggregating our movements in public. But Sotomayor also recognized that it would be difficult to regulate that sort of surveillance without reexamining the third party doctrine. Which holds that information about me disclosed and collected for one purpose may be disclosed to the government for another. She didn't provide a precise metric for how the third party doctrine should be reevaluated. She didn't give us an alternative, but she signaled a willingness to reexamine it in future cases, which, to many of us, is encouraging. What happened next in the Jones case? I'm not delighted, but I'm able to report that just last week Mr. Jones was retried in district court in Washington, DC. He chose to represent himself, usually not a wise thing to do. The government introduced evidence of his cell phone records, just as Justice Alito and Sotomayor predicted that they would. They said, okay, we can't put in the GPS information, we don't care, we've got the same stuff just by subpoenaing the information of his cell phone records. 

A district judge refused to suppress the evidence even though there was some argument that that violated the Stored Communications Act. The district judge said he did not have to decide that question because even if it did violate the act, it still didn't have to be excluded from the trial, and, therefore, it was introduced against Mr. Jones. Representing himself, he just repeatedly told the jury, he said this, speaking of himself in the third person, I read this great account in the Washington Post, he said, "There is no evidence linking Mr. Jones to this crime. There are no eyewitnesses. This is circumstantial evidence. You cannot be sure that Mr. Jones actually took part in any of the activities that the government claimed." And, ladies and gentlemen, just last week in the second trial, there was a hung jury. So, he was successful in raising enough doubt that even with the introduction of this information the second time around, skeptical DC jurors refused to convict. The government, remarkably, has signaled its readiness to retry. So, we'll see what happens if there's a third trial. This now brings us to the nub of the matter. 

What should the right result be when it comes to Mr. Jones' cell phone information? The district judge seemed willing to admit it as not a violation of the Stored Communications Act, but other courts have been bolder. Just last year, no, actually, in 2011, right before the Jones case was decided, there was a district judge in New York, and here I'm going to have to remind myself of the arduous name of this case for those who want to try to track it down. It's called the In re application of the US for an order authorizing the release of historical cell site information, is the name of this case. It was 2011 from a federal district court in New York. And this judge, Judge Nicholas Garaufis, held that a warrant is required for law enforcement when they want to access stored cell site location information. And this was a big deal because while some courts requiring probable cause for law enforcement access to cell phone information had applied that historic information, in other words, the records of people's past movements, this judge took the additional step of requiring it for real-time surveillance or surveillance of people's future movements. And the judge did so by emphasizing the quantum of information that could be revealed from perspective surveillance. The judge said the advent of technology collecting cell site location records has made continuous surveillance of a vast portion of the American populous possible. A level of government intrusion previously inconceivable, it's natural for Fourth Amendment doctrine to evolve to meet these changes. A very forward-looking bit of reasoning. 

And how did the court get around the third party doctrine, which Justice Sotomayor had signaled was the doctrinal barrier to protecting cell phone records? The court found that there's a content exception to the third party doctrine and that cumulative cell site location records are sensitive enough that there should be a similar exception for these records. Now we have to get a little into the weeds of Fourth Amendment doctrine. But the content exception comes from a case called Smith v Maryland where the government wanted access to the telephone numbers that a suspect had dialed. And the US Supreme Court held that there was no need for a warrant to get access to these telephone numbers, collected by a device called a pen register, because citizens, when we dial telephone numbers, know or should be expected to know that telephone companies at the time could collect the telephone numbers. As it happens, at the time many of them were not doing so. But the mere fact that they had the technological ability to collect, the court held, defeated any legitimate expectation of privacy in the telephone numbers themselves. The court distinguished the telephone numbers from the content of telephone communications, which are protected by federal wiretapping statutes and which do require a higher degree of cause before the content can be seized. So you're allowed to have access to the phone numbers but not the content of the conversations themselves. And from this distinction between the envelope information and the content information, subsequent courts have tied themselves in knots trying to figure out how to extend this kind of 1970s era analogy into the digital age. So, courts have disagreed about whether or not search requests are envelope information or content. 

Are emails content or envelope information? You can argue it both ways and lower courts have done so. But what's significant in the cell phone case is that this judge was saying because of the magnitude and volume of information about us that can be revealed by the aggregation of historic cell phone records over the period of month, that's the equivalent of the kind of content that is like an extended wiretap of a telephone conversation, and should, therefore, be protected under the content exception to the third party doctrine. All right, this was a creative, bold attempt by a federal judge to protect a normative degree of privacy in the cell phone context, but, to my mind anyway, the whole game is kind of unsatisfying. The analogy of content versus envelope information is clumsy and ill-suited to capturing the normative interests that are really at stake when we're talking about ubiquitous surveillance on Open Planet or by drones or by cell phones. It's not the fact that I know that I'm surrendering a certain amount of information to the cell phone company and not other kinds of information that creates my interest in privacy. My interest is in not being observed. The interest is the one that Roger identified. I want a degree of anonymity in public, and I want that regardless of whether the technology requires me because of choices in architectural code beyond of my control to reveal part or all of those movements to a cell phone company. The architectural dimensions of the disclosure don't interest me. It's the substantive interest in anonymity that I, as a citizen, want to see protected. 

So, what are ways, then, of answering Justice Sotomayor's challenge? What are alternatives to the third party doctrine that would rethink it entirely rather than trying to work within it and say that cellular phone information is content rather than envelope information? There have been a bunch of creative attempts. One student note, for example, suggests that the privacy policies of the cell phone companies themselves should govern, and if the cell phone companies promised use our geolocational information only for business purposes and not for government purposes, they should be required to abide by that promise. A kind of implied contract notion or trust notion. All very well, but what if the company happens not to have this sort of privacy agreement? Again, my interest in anonymity in public shouldn't turn on whether Verizon chooses to include a privacy provision in its user agreement. In a bolder and more far reaching alternative to the third party doctrine, Professor Nita Farahany of Duke says that the model for the protection of digital papers and effects should be intellectual property. She says that anything that I memorialize, electronically or not, that has expressive content is protected by intellectual property law, and, understood more broadly, this metaphor should ensure that my electronic effects include things like email or even the brain waves that could be measured by fMRI devices and could tell whether or not I'm lying when I'm shown a picture of a training camp in Afghanistan, and if I've been there, my brain will light up in a certain way, and if I haven't, it won't. She says those brain waves, if memorialized electronically, are the kind of expressive content that intellectual property law is meant to protect. And those brain waves could be considered, like my email, electronic effects. So this is a really interesting paper and very much consistent with a tradition of trying to link Fourth Amendment protections to notions of property. The difficulty, as Professor Farahany acknowledges, is it doesn't cover GPS surveillance. 

After all, the electronic evidence of my movements, my geolocational information, isn't an expressive product that I've created in any way, it's just the aggregation of recordings of my movements that are made by automatic devices. In similar ways, the search terms that can be reconstructed by logging the keystrokes on my computer are not necessarily expressive enough to be protected under this model. So, if I'm interested in a substantive degree of anonymity in public, then intellectual property is not going to save me. So, at this moment, I'm standing before you and I'm trying to think through this problem, I seem to be coming up short. We have a real problem protecting the same amount of privacy in the 21st century that the framers took for granted in the 18th. We have a call by at least one Supreme Court justice to rethink existing doctrine and come up with an alternative. But existing efforts to use contract law and intellectual property law seem to come up short. So, whenever I'm really puzzled about a privacy issue, or, frankly, any really tough issue, even if it's just a personal challenge in my life, I just ask a simple little old question, and that is, WWBD? What would Brandeis do? [LAUGHTER] Louis Brandeis is my hero. A great Supreme Court justice. The greatest theorist and philosopher of privacy in the late 19th and early 20th century. 

The most creative model for translating constitutional principles in light of new technologies to preserve the same amount of privacy in the electronic age that the framers took for granted in a pre-electronic age. And Brandeis grappled openly with a predecessor of geolocational tracking technology, namely the wiretap, and his bold and path breaking approach to this problem, I think, provides guidance for us today. So, here's what Brandeis did in the wiretap case. It's 1927, the beginning of the age of wiretapping. It's Prohibition, so the government is using this great new technology of wiretaps to find out whether or not a suspected bootlegger is importing booze from Washington state. And they decide to place taps on the wires under the sidewalk leading up to his office. And based on this primitive but very effective wiretap, they listen in on a lot of his conversations, and they conclude he's absolutely, as suspected, bootlegger, and they indict and convict him. Like Mr. Jones in Washington, he objects. He says there was no valid warrant, therefore this search of my electronic communications was a violation of the Fourth Amendment. In a wooden and literalistic opinion, a majority of the court disagrees. 

The majority opinion, written by Chief Justice William Howard Taft, the former president of the United States, who liked being chief justice far more than being president, said, like Justice Scalia, no trespass, no search. Because the agents didn't have to break into Mr. Olmstead's office and violate his property rights to eavesdrop on his conversations, but instead merely placed the taps under sidewalks in public, said Taft, there was no need for a warrant. End of story. This shows the limitations of property as a protection for privacy in the age of the wires. But in his path breaking dissenting opinion, Justice Brandeis refused to accept that privacy provided a floor for the Fourth Amendment protections. Brandeis began always in these great cases with a constitutional text, and he tried to identify the paradigmatic case that the framers of the Fourth Amendment meant to protect. And in a condensed form, he told the riveting story of John Wilkes. This story, known to every school child at the time of the framing, involved a British rogue who's a sort of parliamentarian, a critic of King George. He wrote an anonymous pamphlet, North Briton 43, accusing the foreign secretary, Lord Bute, of having an affair with King George's mother. As you can imagine, this infuriated the king, who instructed his henchman, Lord Halifax, to break into the door of, basically, lots and lots of innocent suspects and rummage through their desk drawers and identify the author of this anonymous pamphlet. 

It was a kind of 18th century version of the kind of breaches of anonymity that Roger was describing the governments like Iran trying to perpetrate today. But the technology for de-identification, as we call it today, was a general search warrant which involved breaking down doors and rummaging through locked desk drawers. And this was very invasive because lots of innocent people had their desk drawers open, but it was also quite effective because eventually the king identified Wilkes as the author of North Briton 43. And he was indicted for seditious libel, namely criticizing the king. And, in the case of seditious libel, the fact that the libel was true made it even worse. The truer the libel, the worse the offense. So he couldn't say there actually was an affair going on. Basically, it was bringing disrepute on the king was a criminal offense. In his defense, Wilkes argued there had been an unjustified trespass. If there were a valid warrant, that would insulate the king's agents from liability for trespass. 

But because Wilkes said this was an invalid warrant, a general warrant that didn't particularly specify a place to be search or persons or things to be seized, therefore, he said it was an invalid warrant and should provide no immunity for the king's officers. And in a path breaking jury verdict, a jury agreed with Wilkes and awarded him a thousand pounds. This is a ruinous amount of money in its day. Like that McDonald's coffee verdict. [LAUGHTER] It was just a huge deal, a tort lawyer's delight, and Lord Camden, later celebrated in such cities as Camden, New Jersey, wrote that a paper search for the intimacies of a man's thoughts are presumptively unreasonable and impermissible and a search for mere evidence of a crime, such as memorialized in diaries and other papers was quintessentially unreasonable and a violation of the basic rights of English people. And this verdict was so galvanizing to the colonists that they named towns and cities, I was joking about Camden, but not only Camden, New Jersey, but also Wilkes-Barre, Pennsylvania, and later John Wilkes Booth were all named in honor of the great critic of the king. So, Brandeis tells this story in condensed form, but he identifies the paradigm case, identifies the interest in political anonymity, saying that, basically, people should be free to criticize the king anonymously without having a general search that invades lots of innocent people's privacy. And then Brandeis said if a search like that was considered impermissible at the time of the framing, surely a telephone tap, which can reveal so much more intimate information by invading the privacy of people at both ends of the wire, should be equally unconstitutional and unreasonable even though it doesn't involve a physical trespass. Brandeis emphasized it's not the breaking down of his doors but the invasion of his intimate affairs that is the violation of the amendment. And then, in a remarkable passage, Brandeis actually looks forward to the age of cyberspace. 

And he wanted, at this point in his opinion, to insert a reference to television. He had a clipping in it, this is 1927, but he misunderstood it as a kind of two-way version of Skype. He sort of thought that you could see both ways with it, so his law clerk persuaded him to take out the reference. But instead, he refers obliquely to both cyberspace and Skype, and here is what Brandeis says in the Olmstead case. He says, "Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching on the rack, to obtain disclosure in court of what is whispered in the closet." And here's the forward-looking thing. He says, "Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. To Lord Camden, a far slighter intrusion seemed subversive of all the comforts of society. Can it be that the Constitution affords no protection against such invasions of individual security?" So, Brandeis has identified an interest, namely in anonymity, and a substantive series of values that protects, including protection against unexpressed beliefs, thoughts, and emotions. 

And then he describes that interest in a passage that achieves a kind of constitutional poetry. He says, "The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the government, the right to be let alone, the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Bravo is right. I feel the same way. When I read Brandeis, I get a lump in my throat. 

Try it. WWBD? [LAUGHTER] It can answer any tough question. So, what does that beautiful passage tell us about the answer to the question I began with, the constitutionality of Open Planet or of seizing cell phone records? Well, it seems to me that ubiquitous surveillance on Facebook or by reconstructing my cell phone movements threatens the right to be let alone defined as the right to some degree of anonymity in public. And we can debate precisely how to articulate what this interest is, how broadly this right of anonymity sweeps, but it's certainly true that the right to be let alone includes, as the great privacy scholar Alan Weston described it, some right to control how much information about ourselves is communicated to others. I think that's what Brandeis had in mind when he said our right to control the expression of our thoughts, sensations, beliefs, and emotions. And Weston identified at least four separate states of privacy that might be implicated by the right to control how much information about myself is communicated, including solitude, reserve, seclusion, and anonymity. And it's the right of public anonymity, as oxymoronic as that phrase may seem, that I think is at stake in the case of ubiquitous surveillance. The reason that we're concerned about being tracked 24/7 for a month isn't that it's a month. It's not the duration of time. We're concerned about the degree of personal information about our thoughts, beliefs, and emotions. 

About our political associations. About our intimate habits and associations, about our religious belief that could be reconstructed by 24/7 tracking. It's the kind of information that in the age of John Wilkes could only be obtained by physically breaking into my desk drawers and reading my diaries, but today can be achieved by the ubiquitous surveillance of my public movements. And it needn't be a month. If you had a, Roger described a parabolic microphone attached to a drone, then surveillance for an entire day might threaten my right of anonymity or the right to control my thoughts, emotions, and sensations. But just try to keep this as simple as possible. I think that Brandeis would say, using the text of the Fourth Amendment as his guide, that it's an unreasonable search of my persons and electronic effects when I'm ubiquitously surveilled in a way that defeats any expectation of public anonymity. That's my clumsy and far less eloquent attempt to channel Justice Brandeis when it comes to virtual surveillance. Now, perhaps I'm being too modest in channeling Brandeis. It's possible to articulate more sweeping versions of the right of privacy in public that might sweep even more broadly. 

So, in addition to writing the greatest dissenting opinion on the right to privacy ever, Brandeis also wrote, as if that weren't enough, the greatest article on the right to privacy ever. This is by common consensus. And in 1890, he and his law partner, Charles Warren, wrote an article, The Right to Privacy, in the Harvard Law Review, that responded to another technology. This time it wasn't wiretaps. It was the Kodak camera and the tabloid press that were ensuring that what used to be whispered in the closets was now shouted from the rooftops. And Brandeis was concerned about the invasions of social privacy that lead tabloid journalists to describe the goings on of aristocrats in society, like his law partner, Warren. Imagine what Brandeis would have thought in the age of Facebook when you don't have to be a Boston Brahmin to be gossiped about in society pages, but people are exchanges more than a billion pieces of content every month and each of us is subject to the kind of observation and scrutiny and memorializing of what used to be spoken gossip in a way that's stored forever in the digital cloud. But Brandeis struggled using existing legal categories to articulate a cause of action for the injury that he was concerned about. Like the scholars I mentioned to you, he surveyed the law of breach of contract and saw that there are some cases that said when you allow a photographer to take your picture and that photographer then sells the picture to the newspapers, that would be a breach of implied trust even if there wasn't a formal contract. And Brandeis then surveyed, as Professor Farahany does, copyright and intellectual property and found that to be richly analogous but not quite protective of the interest at stake. 

And after reviewing these various possibilities he said that the common law in his wisdom is capable of a beautiful growth and expansion and said that the real interest at stake is the right to be let alone. But then he defined that even more broadly as the right to an inviolate personality. The right to an inviolate personality. Nothing less than that is at stake. Should we, then, as we tried to articulate a constitutional right against Facebook or against cell phone searches, say that what's implicated was not only the Fourth Amendment's protection against unreasonable searches and seizures but the right to inviolate personality, which perhaps is protected by the liberty clause of the 14th Amendment to the Constitution. Now, as it happens, there is a series of privacy cases that could support such an expansion claim. They have to do not with regulation of surveillance technologies but instead of rights of personal and sexual autonomy rooted in cases like Roe v Wade. In upholding the Roe case in 1992, Justice Anthony Kennedy, who's a great defender of constitutional autonomy, famously said, "At the heart of liberty is the right to define one's own conception of meaning of the universe and the mystery of human life." And Justice Scalia ridiculed this passage rather unkindly as the sweet mystery of life passage. He thought it was very purple. But, in fact, Kennedy was very broadly and, to some, majestically articulating an autonomy right that can be asserted against government surveillance in order to allow individuals to define their own personalities. 

And that's really what's at stake when we're talking about the ability to decide how much of ourselves is disclosed to others. It's to define our own self-presentations and to invent and reinvent ourselves as free citizens. So, I think it would not be implausible to assert that the right of liberty recognized in Roe v Wade includes the right of an autonomy or inviolate personality that prevents the government from tracking our movements 24/7. That would be a perfectly respectable argument for someone who believes strongly in expanding the rights of privacy recognized in Roe. But as I try to channel my hero Justice Brandeis, my suspicion is that he would be reluctant to embrace this argument because, after all, in addition to being the greatest champion of the right against government surveillance and the right to free speech, Brandeis was also suspicious of judges inventing rights that were not written down in the text of the Constitution. And his nemesis, his doctrinal nemesis, the constitutional innovation that he most criticized was the recognition of a right to contract in cases like Lochner v New York, which the Supreme Court invoked to strike down minimum wage laws and maximum hour laws and all sorts of progressive legislation passed at the turn of the century to protect workers against the sweating system, as it was called, and the injustices of monopoly capitalism. So, Brandeis, the people's lawyer, the great economic populist who denounced the curse of bigness in corporate life as well as government, who's nemesis was JP Morgan, who predicted the crash of 1913 and also that of 1929 and would have predicted that of 2007, because of the risks that greedy banks take with other people's money, as he unforgettably put it. Banks that are too big to fail by assuming obligations that they don't understand because of the curse of bigness. All of this would have been intelligible to him, and he was very suspicious of judges striking down progressive economic legislation in the name of rights that don't appear in the text of the Constitution because of his belief that, first of all, small is beautiful, that the states are laboratories of democracy, and that the people, especially in small communities, should be able to regulate themselves and protect themselves against the menacing accesses of monopoly capitalism as they thought best. And I think I'm not wrong in worrying about what Justice Brandeis would have thought of Roe v Wade because, interestingly, this right to contract recognized in the Lochner case was, first of all, praised by Rand Paul during his filibuster last week. 

There was this remarkable moment when he was trying to fill air time to keep the filibuster going where he basically stood up and said that the Lochner case was rightly decided and that the court was correct to strike down maximum hour laws and that it's good to enforce this libertarian version of liberty of contract. And that same liberty of contract right, along with the Roe v Wade autonomy right, was invoked by libertarians at the Cato Institute to question the Obama healthcare mandate last spring. They basically said the government can no more force me to buy healthcare insurance or gym memberships or, worst of all, broccoli than it can force me to engage in contracts I don't want to or can force me to bear a child against my will or constrain my intimate sexual associations. So these libertarians are very consistent, but it's a very activist vision of the judiciary, and I don't think Brandeis would have gone for that. So, for all those reasons, I think choosing between the two articulations of the right, I think my hero would prefer this narrow notion, the right of anonymity in public rooted in the right to be let alone and insist that threats to that right, in the form of ubiquitous surveillance, whether on Open Planet or by drones or using cell phones, are all unreasonable searches of my persons and electronic effects. You may disagree. You may prefer the broader right. You may prefer a different approach to this entirely, perhaps a legislative approach. Pending in congress there is a geolocational privacy bill sponsored by Senator Ron Wyden, the Oregon democrat, and Senator Josh Chaffetz, the tea party Utah republican who's an excellent defender of civil liberties, and they would restrict cell geolocational information and prohibit third parties from turning it over to the government. Unfortunately, that bill is languishing in congress because civil libertarian liberals and libertarian conservatives, although they converged in supporting Senator Paul's filibuster, don't have majority support. 

They represent about 20% of the American electorate according to generous estimates. And the Obama Administration has opposed the geolocational privacy bill. So, although Brandeis might have preferred that this have a legislative rather than a judicial solution, that is unlikely to materialize recently, and Brandeis did insist in his great privacy article that it is not judicial legislation to adapt an ancient principle to changing circumstances. Instead, we're preserving the same principle and insuring that citizens today have the same amount of liberty that they had in years past. And I just have to close saying that regardless how you come out on this question, I hope you will be as inspired as I am by Brandeis' charge, which is that if we would lead by the light of reason, we must let our minds be bold. Thank you so much. [APPLAUSE]