U.S. Supreme Court. Credit: Mike Renlund.
As technology makes surveillance easier and cheaper, courts are grappling with how to apply the Fourth Amendment in the digital age. Prior to beepers, GPS, people checking in on Foursquare, and social networks, law enforcement monitoring of suspected offenders was limited by the constraints of manpower, budget and the risk that the officers following suspects might themselves be seen.
But now an increasing amount of information about people’s whereabouts, activities, purchases and intentions can be gleaned digitally, without an officer ever leaving the station. The U.S. Supreme Court’s decision this month in United States v. Jones provides little guidance about which activities might be considered searches, which require warrants, and which voluntary disclosures to third parties might waive Fourth Amendment rights.
A furious battle is taking place in Congress about the future of the Internet. Lawmakers are trying to figure out what rules should govern the Wild West of the Web—with issues ranging from cyberbullying to police access to private social network pages. Like many aspects of our lives, though, the battle has now gone viral, with Wikipedia shutting down most of its English site for 24 hours in protest against the proposed Stop Online Piracy Act (SOPA).
The reach of SOPA is broad and the penalties drastic. Let’s say I post a home video of my family on YouTube and there is a Velvet Elvis on the living room wall behind me. Under SOPA, since the Elvis image is copyrighted, the U.S. Attorney General could step in and shut down all of YouTube because of my transgression. The AG could force all search engines to pretend YouTube never existed and not link to it. And I might even go to prison for five years, if I’ve shot ten home videos in the room in front of the Velvet Elvis or if, in my videos, my CD player was playing my favorite songs.
THE EVOLVING CONSTITUTION: HOW FACEBOOK, GOOGLE AND TWITTER CAUSE PROBLEMS FOR THE RIGHT TO A FAIR TRIAL
The Sixth Amendment of the U.S. Constitution provides for the right to a fair trial. Jurors are supposed to decide a case based on what they hear in the courtroom, not what they read in the news media. They’re not allowed to talk about the case with others so they don’t base their decision on the influence of a friend or relative, rather than their own judgment. They can’t visit the scene of the crime on their own or conduct their own investigations.
Before Facebook, Twitter and Google, it was pretty easy to keep jurors in line. If a case garnered attention in the local press, a judge could order a change of venue so that the case was heard in another town. If the court was worried about outside influences, the jurors could be sequestered. But now with a quick search on a smartphone—or a peek at a defendant’s Facebook page—jurors are routinely breaching the right to a fair trial, and courts, lawyers, and legislatures are trying to figure out what to do about it.
Without a doubt, social networks like Facebook have enhanced the Constitutionally-protected freedom of association since they allows groups to form. But social networks have opened the door for people’s associations to be used against them. Read my post about this at the National Constitution Center's blog.
Facebook has become as big and powerful as a country – and it's time its citizens got a constitution. Read an excerpt from my new book about this at Salon.com.
Should cyberharassment be protected by the First Amendment? Read my blog about this topic at Techdirt.com.
A SOCIAL-NETWORK CONSTITUTION: WE NEED RULES TO PROTECT PEOPLE'S FREEDOM OF EXPRESSION ON THE INTERNET
Image Credit: MARGARET SCOTT / newsart.com
This op-ed appeared in the Philadelphia Inquirer on January 8, 2012.
In Philadelphia 225 years ago, the U.S. Constitution was drafted. Now Pennsylvania is essentially drafting a second Constitution as courts across the state determine what rules should govern social networks.
Pennsylvania leads the nation in legal disputes involving social networks and the Web. These cases include a teacher who was suspended because of a Facebook post about her frustrations with her students, a law student who was criticized for running a website where men fantasized about raping particular female students, and a Pittsburgh Pirates mascot who was fired for a Facebook post disagreeing with his employers' decision to extend certain managers' contracts.
The U.S. Constitution protects the rights of free speech and privacy. But social networks pose challenges to those rights. Straight-A students have been expelled from school for criticizing their teachers on Myspace. Thirty-five percent of companies turn down job seekers based on posts from social networks, especially photos that show the person holding a glass of wine or beer.
Lori is a law professor and the author of I KNOW WHO YOU ARE AND I SAW WHAT YOU DID: SOCIAL NETWORKS AND THE DEATH OF PRIVACY.
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