Technology, Surveillance, Art and our Constitution
This is a portion of a reply I made in another thread. (http://www.democraticunderground.com/?com=view_post&forum=1002&pid=3380021 ) I am posting it as an OP because it lays out (in an incomplete and disorganized way) my general sense of how advances in technology ought to be read into the Constitution, and is thus fodder for a separate conversation. Long story short: Of course technology makes the government more efficient and that's good... but the government is not automatically entitled to whatever power new technology creates or allows, even if the same thing *could* have been done in 1780 by a million men with quill pens following everyone around.
The fact that a million men with quill pens would have cost more than the entire federal budget, but the same job can be done by computers for a nickel becomes a difference in kind.
Technological efficiency is a difference in degree that can become a difference in kind, when it comes to reducing rights.
On the other hand, there is no Constitutional hostility to our Liberties to match the Constituion's hostility to seaches. We have 1st Amendment rights on the internet (which our founders could not anticipate) because our founders intended that people in the future be more free. They veiwed human liberty as expanding and the effect of (if not tools of) surveillance as not expanding.
We are entitled to make movies, despite that being a technology alien to 1783. That doesn't nessecarily mean our government is entitled to film us. The government may be entitled, but it is at least somewhat anchored a sense of what privacy meant back in the day because privacy was not a thing presumed or intended to whither as government bacame more efficient.
This is not to say that the police should have to chase cars on horseback. This is not a crude or hyper-literal framework. Merely noting that it may require new and novel limitations on government to counter the intrusive capabilities of new and novel technologies, merely for our rights to stay in the same place.
I have never doubted that the government has access to my trash as an inherent element of the trash collection process.
But if they develop programs and protocols for picking through everyone's trash for information, or even passively storing it in bins labeled "Joe Smith's trash" in case Joe Smith latter becomes a person of interest, it would be a jarring and disturbing thing and change the way we all think about our trash.
But everybody knows, if they think about it, that the government has their trash.
Part of the reason government is entrusted with certain things has always been practical. This is what drives me crazy about 4th Amendment cases involving novel surveillance technologies like drones, thermal imaging, magnetic GPS locators placed on cars, etc..
The 2nd Amendment does not apply to nuclear bombs, and everyone gets that.
There is an argument to be made that the 4th Amendment doesn't allow infallible robots doing the job of a constable for the same reason. The 4th Amendment isn't a thing to be gamed with technology.
In the GPS tracker instance, the argument is that a cop could follow your cars public movements by driving around following your car, so you have no reasonable expectation of privacy regarding the location of your car. Thus a GPS device can be planted on your car because it doesn't collect private information.
It is merely an efficient technology to do what cops could already do.
But the 4th Amendment presumes a highly limited set of practical realities, in the same way it presumes there are no nuclear weapons.
The Post Office always had access to our postal metadata insofar as the post office handled all our mail with delivery addresses and return addresses. Postal employees saw everything one would need in order to track the bulk of who mailed stuff to whom and when.
But it was technologically impossible to make use of that data.
I would suggest that the technological limitations that make something acceptable in the first place are part and parcel of its acceptability. These things cannot be bootstrapped by technology in a, "But you already knew a postal employee was looking at the delivery and return addresses on your mail...," way.
I do not say that government should be limited to what was practical in 1780. Of course the government is, and must be, vastly more capable and far-reaching than was possible in 1780.
But when impossible or implausible things suddenly become possible and plausible it suggests a need to expand our understanding of our rights to stay in the same place. Technology means that to have the same liberties requires limitations on that technology. These are new limitations insofar as the technology is new. Our rights must be greater just to keep up.
Does this mean the 1st Amendment only applies to printing and not to the internet?
No. And for a simple reason.
The Constitution exists to limit government and to maximize the rights of people. In the logic of our system, surveillance is a (sometimes necessary) evil to be limited. Human expression is not an evil and not something to be limited.
There is no implied symmetry of protecting the people's prerogatives and protecting government prerogatives.
(The second ammendment is different insofar as it presumes regulation. There is no equivalent, "A diverse array of Christian sects being nessecary for a free state..." or "Polite conversation being nessecary for..."
