Constitution 3.0: Freedom and Technological Change

Privacy and Security, Innovation and Economic Growth and Artificial Intelligence

Article Snapshot


Jeffrey Rosen and Benjamin Wittes


Jeffrey Rosen, Benjamin Wittes, eds., Washington, DC: Brookings Institution Press, 2011


Technology will challenge legal and constitutional values. Courts must reinterpret the Fourth Amendment to address high-tech surveillance. Private firms could threaten free speech. Genetic engineering, artificial intelligence, and cloning will require new legal concepts of personhood.

Policy Relevance

The courts could recognize expanded privacy rights in some new cases. Legislators, regulators and private entities could ensure safety and security.

Main Points

  • Broad new surveillance programs will use GPS, facial recognition technology, and data mining to protect security. Safeguards to prevent abuse could include:
    • Requiring authorities to show cause to justify surveillance in proportion to the intrusion.
    • Restricting the uses of data gathered by surveillance.
    • Independent review of surveillance by the courts or other oversight.
  • Private entities like Google, Facebook, AT&T, and radio and broadcast companies have more control over free speech than the government.
  • Traditionally, free speech rights protect speakers against the government; in future, political activism or federal regulators could control private threats to free speech.
  • Central storage of information in one digital library could result in loss of the information, unless copies are mirrored elsewhere.
  • Some might argue that the brain scans of a criminal defendant prove that she should not be legally responsible for her actions. Others might use scans to designate dangerous defendants for death. Either argument makes the idea of legal responsibility incoherent.
  • Genetic engineering and cloning raises questions about the right of parents to choose what kind of family to have.
    • Courts could expand privacy rights to protect parental choices.
    • Legislators and regulators could enact new rules to ensure safety.
  • Artificial intelligence and artificially created life forms will challenge our definition of a “person.” Bans and broad principles probably cannot resolve these questions.
  • In future, individuals like biology graduate students might threaten national security. Responsibility for security would devolve on researchers, citizens, and private companies.


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