240 lines
13 KiB
Plaintext
240 lines
13 KiB
Plaintext
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LEGAL OVERVIEW
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THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS
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Advances in computer technology have brought us to a new frontier in
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communications, where the law is largely unsettled and woefully
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inadequate to deal with the problems and challenges posed by electronic
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technology. How the law develops in this area will have a direct impact
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on the electronic communications experiments and innovations being
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devised day in and day out by millions of citizens on both a large and
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small scale from coast to coast. Reasonable balances have to be struck
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among:
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% traditional civil liberties
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% protection of intellectual property
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% freedom to experiment and innovate
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% protection of the security and integrity of computer
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systems from improper governmental and private
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interference.
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Striking these balances properly will not be easy, but if they are
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struck too far in one direction or the other, important social and legal
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values surely will be sacrificed.
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Helping to see to it that this important and difficult task is done
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properly is a major goal of the Electronic Frontier Foundation. It is
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critical to assure that these lines are drawn in accordance with the
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fundamental constitutional rights that have protected individuals from
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government excesses since our nation was founded -- freedom of speech,
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press, and association, the right to privacy and protection from
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unwarranted governmental intrusion, as well as the right to procedural
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fairness and due process of law.
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The First Amendment
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The First Amendment to the United States Constitution prohibits the
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government from "abridging the freedom of speech, or of the press," and
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guarantees freedom of association as well. It is widely considered to
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be the single most important of the guarantees contained in the Bill of
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Rights, since free speech and association are fundamental in securing
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all other rights.
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The First Amendment throughout history has been challenged by every
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important technological development. It has enjoyed only a mixed record
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of success. Traditional forms of speech -- the print media and public
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speaking -- have enjoyed a long and rich history of freedom from
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governmental interference. The United States Supreme Court has not
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afforded the same degree of freedom to electronic broadcasting,
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however.
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Radio and television communications, for example, have been subjected to
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regulation and censorship by the Federal Communications Commission
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(FCC), and by the Congress. The Supreme Court initially justified
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regulation of the broadcast media on technological grounds -- since
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there were assumed to be a finite number of radio and television
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frequencies, the Court believed that regulation was necessary to prevent
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interference among frequencies and to make sure that scarce resources
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were allocated fairly. The multiplicity of cable TV networks has
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demonstrated the falsity of this "scarce resource" rationale, but the
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Court has expressed a reluctance to abandon its outmoded approach
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without some signal from Congress or the FCC.
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Congress has not seemed overly eager to relinquish even
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counterproductive control over the airwaves. Witness, for example,
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legislation and rule-making in recent years that have kept even
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important literature, such as the poetry of Allen Ginsberg, from being
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broadcast on radio because of language deemed "offensive" to regulators.
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Diversity and experimentation have been sorely hampered by these rules.
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The development of computer technology provides the perfect opportunity
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for lawmakers and courts to abandon much of the distinction between the
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print and electronic media and to extend First Amendment protections to
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all communications regardless of the medium. Just as the multiplicity
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of cable lines has rendered obsolete the argument that television has to
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be regulated because of a scarcity of airwave frequencies, so has the
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ready availability of virtually unlimited computer communication
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modalities made obsolete a similar argument for harsh controls in this
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area. With the computer taking over the role previously played by the
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typewriter and the printing press, it would be a constitutional disaster
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of major proportions if the treatment of computers were to follow the
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history of regulation of radio and television, rather than the history
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of freedom of the press.
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To the extent that regulation is seen as necessary and proper, it should
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foster the goal of allowing maximum freedom, innovation and
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experimentation in an atmosphere where no one's efforts are sabotaged by
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either government or private parties. Regulation should be limited by
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the adage that quite aptly describes the line that separates reasonable
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from unreasonable regulation in the First Amendment area: "Your liberty
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ends at the tip of my nose."
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As usual, the law lags well behind the development of technology. It is
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important to educate lawmakers and judges about new technologies, lest
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fear and ignorance of the new and unfamiliar, create barriers to free
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communication, expression, experimentation, innovation, and other such
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values that help keep a nation both free and vigorous.
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The Fourth Amendment
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The Fourth Amendment guarantees that "the right of the people to
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be secure in their persons, houses, papers, and effects, against
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unreasonable searches and seizures, shall not be violated, and no
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Warrants shall issue, but upon probable cause, supported by Oath
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or affirmation, and particularly describing the place to be
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searched, and the persons or things to be seized."
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In short, the scope of the search has to be as narrow as
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possible, and there has to be good reason to believe that the
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search will turn up evidence of illegal activity.
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The meaning of the Fourth Amendment's guarantee has evolved over time in
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response to changing technologies. For example, while the Fourth
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Amendment was first applied to prevent the government from trespassing
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onto private property and seizing tangible objects, the physical
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trespass rationale was made obsolete by the development of electronic
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eavesdropping devices which permitted the government to "seize" an
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individual's words without ever treading onto that person's private
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property. To put the matter more concretely, while the drafters of the
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First Amendment surely knew nothing about electronic databases, surely
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they would have considered one's database to be as sacrosanct as, for
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example, the contents of one's private desk or filing cabinet.
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The Supreme Court responded decades ago to these types of technological
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challenges by interpreting the Fourth Amendment more broadly to prevent
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governmental violation of an individual's reasonable expectation of
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privacy, a concept that transcended the narrow definition of one's
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private physical space. It is now well established that an individual
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has a reasonable expectation of privacy, not only in his or her home
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and business, but also in private communications. Thus, for example:
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% Government wiretapping and electronic eavesdropping are now limited
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by state and federal statutes enacted to effectuate and even to expand
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upon Fourth Amendment protections.
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% More recently, the Fourth Amendment has been used, albeit with
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limited success, to protect individuals from undergoing certain random
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mandatory drug testing imposed by governmental authorities.
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Advancements in technology have also worked in the opposite direction,
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to diminish expectations of privacy that society once considered
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reasonable, and thus have helped limit the scope of Fourth Amendment
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protections. Thus, while one might once have reasonably expected
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privacy in a fenced-in field, the Supreme Court has recently told us
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that such an expectation is not reasonable in an age of surveillance
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facilitated by airplanes and zoom lenses.
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Applicability of Fourth Amendment to computer media
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Just as the Fourth Amendment has evolved in response to changing
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technologies, so it must now be interpreted to protect the reasonable
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expectation of privacy of computer users in, for example, their
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electronic mail or electronically stored secrets. The extent to which
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government intrusion into these private areas should be allowed, ought
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to be debated openly, fully, and intelligently, as the Congress seeks to
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legislate in the area, as courts decide cases, and as administrative,
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regulatory, and prosecutorial agencies seek to establish their turf.
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One point that must be made, but which is commonly misunderstood, is
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that the Bill of Rights seeks to protect citizens from privacy invasions
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committed by the government, but, with very few narrow exceptions, these
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protections do not serve to deter private citizens from doing what the
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government is prohibited from doing. In short, while the Fourth
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Amendment limits the government's ability to invade and spy upon private
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databanks, it does not protect against similar invasions by private
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parties. Protection of citizens from the depredations of other citizens
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requires the passage of privacy legislation.
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The Fifth Amendment
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The Fifth Amendment assures citizens that they will not "be deprived of
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life, liberty, or property, without due process of law" and that private
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property shall not "be taken for public use without just compensation."
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This Amendment thus protects both the sanctity of private property and
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the right of citizens to be proceeded against by fair means before they
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may be punished for alleged infractions of the law.
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One aspect of due process of law is that citizens not be prosecuted for
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alleged violations of laws that are so vague that persons of reasonable
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intelligence cannot be expected to assume that some prosecutor will
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charge that his or her conduct is criminal. A hypothetical law, for
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example, that makes it a crime to do "that which should not be done",
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would obviously not pass constitutional muster under the Fifth
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Amendment. Yet the application of some existing laws to new situations
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that arise in the electronic age is only slightly less problematic than
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the hypothetical, and the Electronic Frontier Foundation plans to
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monitor the process by which old laws are modified, and new laws are
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crafted, to meet modern situations.
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One area in which old laws and new technologies have already clashed and
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are bound to continue to clash, is the application of federal criminal
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laws against the interstate transportation of stolen property. The
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placement on an electronic bulletin board of arguably propriety computer
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files, and the "re-publication" of such material by those with access to
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the bulletin board, might well expose the sponsor of the bulletin board
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as well as all participants to federal felony charges, if the U.S.
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Department of Justice can convince the courts to give these federal laws
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a broad enough reading. Similarly, federal laws protecting against
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wiretapping and electronic eavesdropping clearly have to be updated to
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take into account electronic bulletin board technology, lest those who
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utilize such means of communication should be assured of reasonable
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privacy from unwanted government surveillance.
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Summary
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The problem of melding old but still valid concepts of constitutional
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rights, with new and rapidly evolving technologies, is perhaps best
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summed up by the following observation. Twenty-five years ago there was
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not much question but that the First Amendment prohibited the government
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from seizing a newspaper's printing press, or a writer's typewriter, in
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order to prevent the publication of protected speech. Similarly, the
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government would not have been allowed to search through, and seize,
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one's private papers stored in a filing cabinet, without first
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convincing a judge that probable cause existed to believe that evidence
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of crime would be found.
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Today, a single computer is in reality a printing press, typewriter, and
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filing cabinet (and more) all wrapped up in one. How the use and output
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of this device is treated in a nation governed by a Constitution that
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protects liberty as well as private property, is a major challenge we
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face. How well we allow this marvelous invention to continue to be
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developed by creative minds, while we seek to prohibit or discourage
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truly abusive practices, will depend upon the degree of wisdom that
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guides our courts, our legislatures, and governmental agencies entrusted
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with authority in this area of our national life.
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For further information regarding The Bill of Rights please contact:
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Harvey Silverglate
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Silverglate & Good
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89 Broad Street, 14th Floor
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Boston, MA 02110
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617/542-6663
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Downloaded From P-80 International Information Systems 304-744-2253
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