Is the worm unconstitutional? This is a hard question that at first seems to have an easy answer. The worm is engaging in a government-initiated search of citizens’ disks. There is no reasonable suspicion (as the law ordinarily requires) that the disk holds the document for which the government is searching. It is instead a generalized, suspicionless search of private spaces by the government.

From the standpoint of the Constitution—the Fourth Amendment in particular—you don’t get any worse than that. The Fourth Amendment was written against the background of just this sort of abuse. Kings George II and George III would give officers a “general warrant” authorizing them to search through private homes looking for evidence of a crime.¹ No suspicion was needed before the officer ransacked your house, but because he had a warrant, you were not able to sue the officer for trespass. The aim of the amendment was to require at least suspicion, so that the burden of the search fell on a reasonably chosen class.²

But is the worm really the same as the King’s general search? There is one important difference: unlike the victims of the general searches that the framers of our Constitution were concerned about, the computer user never knows that his or her disk is being searched by the worm. With the general search, the police were breaking into a house and rummaging through private stuff. With the worm, it is a bit of computer code that does the breaking, and (I’ve assumed) it can see only one thing. The code can’t read private letters; it doesn’t break down doors; it doesn’t interfere with ordinary life. And the innocent have nothing to fear.

The worm is silent in a way that King George’s troops were not. It searches perfectly and invisibly, discovering only the guilty. It does not burden the innocent; it does not trouble the ordinary citizen; it captures only what is outside the protection of the law.

This difference complicates the constitutional question. The worm’s behavior is like a generalized search in that it is a search without suspicion, but it is unlike the paradigm case of a generalized search in that it creates no disruption of ordinary life and finds only contraband. In this way, the worm is like a dog sniff—which at least at airports is constitutionally permissible without probable cause³ —but better. Unlike the dog sniff, the worm doesn’t even let the computer user know when there is a search (and hence the user suffers no anxiety).

Is the worm, then, constitutional? That depends on your conception of what the Fourth Amendment protects. On one view, the amendment protects against suspicionless governmental invasions, whether those invasions are burdensome or not. On a second view, the amendment protects against invasions that are burdensome, allowing only those for which there is adequate suspicion that guilt will be uncovered. The paradigm case cited by the framers does not distinguish between these two very different protections. It is we, instead, who must choose.

Let’s take the example one step further. Imagine that the worm does not simply search every machine it encounters but can be put on a machine only with judicial authorization—say, a warrant. Now the suspicionless-search part of the problem has been removed. But imagine a second part: the government requires that networks be constructed so that a worm, with judicial authorization, could be placed on a machine. Machines in this regime must be worm-ready, even though worms will be deployed only with judicial warrant.

Is there any constitutional problem with this? I explore this question in much greater detail in chapter 11, but for now, notice its salient feature. In both cases, we are describing a regime that allows the government to collect data about us in a highly efficient manner, that is, inexpensively for both the government and the innocent. This efficiency is made possible by technology, which permits searches that before would have been far too burdensome and far too invasive. In both cases, then, the question comes to this: When the ability to search without burden increases, does the government’s power to search increase as well? Or more darkly, as James Boyle puts it: “Is freedom inversely related to the efficiency of the available means of surveillance? If so, we have much to fear.”⁴

This question, of course, is not limited to the government. One of the defining features of modern life is the emergence of technologies that make data collection and processing extraordinarily efficient. Most of what we do—hence, most of what we are—is recorded outside our homes. When you make telephone calls, data are recorded about whom you called, when, how long you spoke, and how frequently you made such calls.⁵ When you use your credit cards, data are recorded about when, where, and from whom you made purchases. When you take a flight, your itinerary is recorded and, probably by the time this book reaches print, profiled by the government to determine whether you are likely to be a terrorist.⁶ No doubt Hollywood’s image—of a world where one person sitting behind a terminal tracks the life of another—is wrong. But not terribly wrong. It’s not that systems so easily track a single individual. But it is easy to imagine an agency sorting through all the data the system collects to identify those individuals most likely to be committing crimes. The intrusiveness is slight, and the payoff great.

Both private and public monitoring, then, have the same salient feature: monitoring, or searching, can increase without increasing the burden on the individual searched. How should we think about this change? How should the protection the framers gave us be applied?

Footnotes

¹ See William J. Stuntz, “The Substantive Origins of Criminal Procedure,” Yale Law Journal 105 (1995): 393, 406–7. Edit Delete

² See, for example, Thomas A. Clancy, “The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures,” University of Memphis Law Review 25 (1995): 483, 632. “Individualized suspicion . . . has served as a bedrock protection against unjustified and arbitrary police actions.” Edit Delete

³ See United States v Place, 462 US 696, 707 (1983). Edit Delete

⁴ James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 4. Edit Delete

⁵ See Susan Freiwald, “Uncertain Privacy: Communication Attributes After the Digital Telephony Act,” Southern California Law Review 69 (1996): 949, 951, 954. Edit Delete

⁶ Cf. John Rogers, “Bombs, Borders, and Boarding: Combatting International Terrorism at United States Airports and the Fourth Amendment,” Suffolk Transnational Law Review 20 (1997): 501, n.201. Edit Delete