The Court in Katz followed Brandeis rather than Taft. It sought a reading of the Fourth Amendment that made sense of the amendment in a changed context. In the framers’ context of 1791, protecting against trespass to property was an effective way to protect against trespass to privacy, but in the Katz context of the 1960s it was not. In the 1960s much of intimate life was conducted in places where property rules did not reach (in the “ether,” for example, of the AT&T telephone network). And so a regime that made privacy hang on property did not protect privacy to the same degree that the framers had intended. Justice Stewart in Katzsought to remedy that by linking the Fourth Amendment to a more direct protection of privacy.

The link was the idea of “a reasonable expectation of privacy.” The core value, Stewart wrote, was the protection of “people, not places”¹ ; hence, the core technique should be to protect people where they have an expectation of privacy, and where that expectation is reasonable. Where people have a reasonable expectation of privacy, the government cannot invade that space without satisfying the requirements of the Fourth Amendment.

There is much to admire in Stewart’s opinion, at least to the extent that he is willing to fashion tools for preserving the Constitution’s meaning in changed circumstances—or again, to the extent that he attempts to translate the protections of the Fourth Amendment into a modern context. There is also much to question.² But we can put those questions aside for the moment and focus on one feature of the problem that is fairly uncontentious.

While lines will be hard to draw, it is at least fairly clear that the framers made a conscious choice to protect privacy. This was not an issue off the table of their original debate, or a question they did not notice. And this is not the “right to privacy” that conservatives complain about in the context of the right to abortion. This is the right to be free from state intrusion into the “sanctity” of a private home. State-enforced threats to individual privacy were at the center of the movement that led to the republic. Brandeis and Stewart simply aimed to effect that choice in contexts where the earlier structure had grown ineffectual.

Translations like these are fairly straightforward. The original values chosen are fairly clear; the way in which contexts undermine the original application is easily grasped; and the readings that would restore the original values are fairly obvious. Of course, such cases often require a certain interpretive courage—a willingness to preserve interpretive fidelity by changing an interpretive practice. But at least the direction is clear, even if the means are a bit unseemly.³

These are the easy cases. They are even easier when we are not trying to carry values from some distant past into the future but instead are simply carrying values from one context into another. When we know what values we want to preserve, we need only be creative about how to preserve them in a different context.

Cyberspace will present many such easy cases. When courts confront them, they should follow the example of Brandeis: they should translate, and they should push the Supreme Court to do likewise. Where circumstances have changed to nullify the protections of some original right, the Court should adopt a reading of the Constitution that restores that right.

But some cases will not be so easy. Sometimes translation will not be an option. Sometimes the values that translation would track are values we no longer want to preserve. And sometimes we cannot tell which values translation would select. This was the problem in chapter 2 with the worm, which made the point about latent ambiguities. Changing contexts sometimes reveals an ambiguity latent in the original context. We must then choose between two different values, either of which could be said to be consistent with the original value. Since either way could be said to be right, we cannot say that the original context (whether now or two hundred years ago) decided the case.

Professor Tribe describes an example in a founding article in the law of cyberspace, “The Constitution in Cyberspace.”⁴ Tribe sketches a method of reading the Constitution in cyberspace that aims to make the Constitution “technologically neutral.” The objective is to adopt readings (or perhaps even an amendment) that make it plain that changes in technology are not to change the Constitution’s meaning. We must always adopt readings of the Constitution that preserve its original values. When dealing with cyberspace, judges are to be translators; different technologies are the different languages; and the aim is to find a reading of the Constitution that preserves its meaning from one world’s technology to another.⁵

This is fidelity as translation. This kind of translation speaks as if it is just carrying over something that has already been said. It hides the creative in its act; it feigns a certain polite or respectful deference. This way of reading the Constitution insists that the important political decisions have already been made and all that is required is a kind of technical adjustment. It aims at keeping the piano in tune as it is moved from one concert hall to another.

But Tribe then offers an example that may make this method seem empty. The question is about the meaning of the confrontation clause of the Sixth Amendment—the defendant’s right in a criminal trial “to be confronted with the witnesses against him.” How, Tribe asks, should we read this clause today?

Footnotes

¹ Katz v United States, 389 US 347, 351 (1967). Edit Delete

² As the history of the Fourth Amendment’s protection of privacy since Katz will attest, the technique used by Stewart was in the end quite ineffectual. When tied to property notions, no doubt the reach of the Fourth Amendment was narrow. But at least its reach went as far as the reach of property. Because “property” is a body of law independent of privacy questions, it was resilient to the pressures that privacy placed on it. But once the Court adopted the “reasonable expectation of privacy” test, the Court could later restrict these “reasonable expectations” in the Fourth Amendment context, with little consequence outside that context. The result has been an ever-decreasing scope for privacy’s protection. Edit Delete

³ See Lessig, “Translating Federalism,” 206–11. Edit Delete

⁴ Tribe, “The Constitution in Cyberspace,” 15. Edit Delete

⁵ See Lawrence Lessig, “Reading the Constitution in Cyberspace,” Emory Law Journal 45 (1996): 869, 872. Edit Delete