Rosen looks to Constitution to frame 21st-century privacy

Rachael Le Goubin | Staff Photographer
Jeffrey Rosen, president and CEO of the National Constitution Center, discusses how changing technology is blurring what is considered an invasion of privacy and in violation of the Fourth Amendment during Monday’s lecture in the Amphitheater.

On Saturday, The Washington Post published the results of a four-month investigation of National Security Agency data released by former NSA contractor Edward Snowden. Nine out of 10 account holders found in the agency’s cache of intercepted conversations were not its intended surveillance targets, but were “caught in a net the agency had cast for somebody else,” the Post reported.

That net appears larger than most Web users would care to imagine. Knowingly or not, such flagrant high-tech surveillance pervades the lives of average citizens in the 21st century. But while smartphones, social media and global positioning systems have changed the issue dramatically, the right to privacy has been a concern of citizens and the courts for centuries.

On Monday in the Amphitheater, Jeffrey Rosen examined the right to privacy through a constitutional frame, exploring both historic and hypothetical cases in which privacy clashed with security or freedom of speech, or was conflated with property rights.

Rosen, the president and chief executive officer of the National Constitution Center, is a prominent legal scholar who has published essays in The New York Times Magazine, The New Yorker and on National Public Radio. He is also a professor at George Washington University Law School and the legal affairs editor at The New Republic. His lecture was the first in this week’s morning lecture theme, “The Ethics of Privacy.”

The Fourth Amendment to the U.S. Constitution grants that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

This amendment, Rosen said, was inspired by the case of John Wilkes, an English radical charged with seditious libel in 1763 for his anonymous pamphlets criticizing King George III. The king issued a general warrant for the author of the pamphlets, which allowed the Earl of Halifax and his henchmen to break into innocent bystanders’ homes to search their possessions of evidence of authorship of the pamphlets. 

They eventually broke into Wilkes’ home, arrested him and convicted him. He objected that the general warrant was invalid because it did not specify the place to be searched or the thing to be seized.

In a landmark verdict, Wilkes won 1,000 pounds from the jury, which “roused the hearts of the American revolutionaries” and led to the 1792 adoption of the Fourth Amendment.

But in the digital age, Rosen said, enforcement of the Fourth Amendment is not always so simple.

Last month, the U.S. Supreme Court’s ruling in Riley v. California answered questions about warrantless searches of cellphones in the case of arrests.

While police are permitted to warrantlessly search the body and immediate surrounding area of a person under arrest in the interest of protecting material evidence and the officers’ safety, the court unanimously decided that officers could not search the individual’s cellphone.

Rosen praised this decision for its bipartisanship, but said that many more questions remain to be answered when it comes to privacy in the digital age.

For example, he said, the Fourth Amendment only binds government searches. The private sector is unaffected by the restriction — a relevant concern, he said, in a time when businesses such as Google and Facebook have more power over citizens’ personal information and freedom of speech than the government.

How much privacy can citizens expect, Rosen said, when most people carry a GPS in their phone and surrender terabytes of personal data to Internet companies?

What, he said, is the new right to privacy?

The European Court of Justice answered this question for the European Union. The court ruled in May that, under certain conditions, EU citizens have the right to ask search engines to remove personal information about them. 

It’s called “the right to be forgotten,” and Rosen noted the European character of the ruling, pointing out that in general, the U.S. has valued the freedom of speech over European notions of dignity, which Rosen connected to
a history of hierarchy and

But, Rosen said, the U.S. has historically placed tremendous importance on personal liberty — dearly threatened by the precarious position of personal data, which, the third-party doctrine holds, cannot be expected to remain private once surrendered to, for example, Facebook.

The questions Rosen presented are still being addressed.

In answering them, he said, “We must let our minds be bold.”


Q: The Constitution does not apply to Google and Facebook, yet the government can subpoena Google and Facebook for their records. Does this mean an inherent conflict with the Constitution?

A: It is a great question and it shows how unprotected our digital papers and effects are. The government can’t seize our cell phones without a warrant at least on arrest, but, as the questioner suggests, it can issue a subpoena for those records. The standards for a subpoena are much lower than those for a warrant; a warrant requires a probable cause to believe in criminal wrongdoing. A subpoena can be issued if information is merely relevant to a legitimate investigation. Therefore — in the 19th century — it was believed that a subpoena for intimate papers or even commercial records could violate the Fourth and Fifth Amendment in a case that Justice Brandeis said would be celebrated as long as civil liberty is celebrated in America. In the Boyd case from the1890s, the Supreme Court said that when the government issued a subpoena for invoices for plate glass — they suspected a guy of not paying import taxes and they subpoenaed his business records — and the Supreme Court struck this down as a violation of the Fourth and Fifth Amendments, which run almost into each other. So that was a time at the end of the 19th century when protections for private papers were so robust that even a subpoena for commercial papers was viewed as an unreasonable search and an invasion of this gentleman’s mental privacy or cognitive liberty under the Fifth Amendment. Today, the law is completely different for complicated reasons having mostly to do with the rise of the post-New Deal administrative state as well as the progressive era administrative state. The government now holds that a subpoena doesn’t implicate Fourth Amendment concerns at all and, as we saw in recent investigations ranging from that of Kenneth Starr to the NSA, subpoenas, as long as information is relevant to an investigation, don’t raise constitutional concerns. This is the heart of the controversy over the USA Patriot Act. Section 215 authorizes that the government to seize any data merely by asserting that it has some connection to terrorism. So the question is important because it shows that constitutional protections at a high water mark in the 1890s have so diminished today that the government can seize, from Google and Facebook, the very information that is forbidden from seizing directly, and this is indeed not only a contradiction but it shows how vulnerable our private data is in the age of the digital cloud.

Q: Do you think there will be an amendment to the Constitution taking into account the digital age?

A: Do I think there will be? Of course, constitutional amendments are difficult to pass. They have to be proposed by two-thirds of Congress and ratified by two-thirds of the state legislatures or by special constitutional conventions summoned for the purpose, so its difficult to pass constitutional amendments. What I would ask the audience is: Do you believe there should be a constitutional amendment to regulate Google and Facebook, and if so, what would it say? James Madison proposed a series of amendments that were unsuccessful. The amendment that he proposed at the time of the Bill of Rights that he thought was the most important one in the set would have prohibited the states as well as the federal government from abridging basic rights of speech and religious liberty. That amendment was rejected and it wasn’t until the Fourteenth Amendment, passed after the Civil War, that our Constitution required the states as well as the federal government to respect the Bill of Rights. But neither of those amendments governs private properties. Madison proposed another amendment that didn’t pass or at least he — Anti-Federalists proposed and Madison considered it — and that was an anti-monopoly amendment. It said that Congress cannot grant any company exclusive advantages of commerce and Anti-Federalists, especially Thomas Jefferson, were especially concerned about monopoly power, which would give unfair advantage to certain competitors over another and threaten liberty. So there was concern, both at the time of the framing and in the Jacksonian era, with the dangers of monopolies and class legislation that would favor big business over individual, smaller businesses. So, that’s a long way of saying, I’m going to propose an amendment and see who would support it. Private companies shall not infringe the right of the people to be secure in our persons, houses, papers and effects. That would be the Google and Facebook Amendment. Who would support such a constitutional amendment? And who would not? There is some tepid non-voting there. It’s a complicated question. I think I’m not sure which way I would vote either but the fact that there’s an ambivalence about it suggests that, in America, although we have a strong tradition of restricting the government, there’s much less of a tradition of restricting private companies. In Europe, it’s the opposite. They have a status tradition that actually gives the German and French intelligence service far broader access to private data than our U.S. government has, but they have these sweeping dignitary rights like the right to be forgotten and also data privacy laws that say that information shared with a private party for one purpose may not be disclosed for another. They’re much more sweeping than ours, so I think this has to do with our culture and the vote suggests that such an amendment, although it might or might not be a good idea, is unlikely to pass anytime in the near future.

Q: Has anyone argued that expectation of privacy is no longer relevant? If there is no such expectation, what’s the implication?

A: The answer is yes. As a descriptive matter, you see Silicon Valley slogans saying, “Privacy is already over. Get over it,” or the head of Oracle said something similar, that “I don’t have anything to hide, and you’ve got to assume that everything is being watched.” So that is a trope, and you also see that in places like Britain; nothing to hide, nothing to fear. So there is a sense that if you’ve got nothing to hide, we can all live in glass houses and expose our cell phone contents to the world and there’s no fear about this. And young people especially are much more willing to share intimate details than the rest of us. They can post intimate pictures of themselves on the Internet. Of course, they look so much better than the rest of us. You can understand why they have different expectations about privacy in this regard. But I am not convinced — looking at the polls and looking empirically — that, in fact, people do share the belief that they are willing to just put it all out there. When it comes to something that someone cares about, like your reputation, like a picture that’s posted that really harms you, like a blog post that someone else writes about you that is discreditable to you, people care deeply ad that is evidenced by this European right to be forgotten. So let me just take a poll, and this is one of a series of these constitutional and policy polls: Who believes that privacy is over, get over it, if you’ve got nothing to hide, nothing to fear and there’s no need for any legal protection for our privacy data? And who disagrees with that statement? Okay, good. Well that leads to the second question, the constitutional aspect: Has anyone argued that the subjective expectation of privacy test is no longer adequate? And I told you that Justice Sonia Sotomayor has said that it’s inadequate and that the Supreme Court needs to rethink its whole approach to privacy, but the justices haven’t yet come up with an alternative. So I’m going to give you a homework assignment, and that is help America participate in a debate about what the alternative to this third-party doctrine should be because the justices need help about coming up with an alternative structure, and if you begin to read a little bit about the subject, go to the Supreme Court website, go to the Constitutional Center website,, and look at our great debates and podcasts about these topics. Then you need to come up, like Justice Brandeis, about a way of translating the Constitution into a digital age so that Tom cannot be surveilled 24/7.

Q: We have some Chautauquans who want to go a little further with the questions of privacy — a little bit more broad. One wants to know how does or will Citizens United impact this issue. Another wants to know how privacy is connected with Roe v. Wade. And another one wants you to predict how this Supreme Court’s going to resolve the conflict between privacy protections and free speech.

A: Sherra, you didn’t tell me I was going to have to work for my lunch today. Those are three superb questions. They really go to the heart of the constitutional future of privacy. So let me take them each in turn. First, how will Citizens United affect these debates about privacy? Citizens United held that corporations have the same free speech rights as natural persons when it comes to contributions and expenditures to political campaigns. So that, was that hiss? Remember, I said on a non-partisan basis. I’m just going to describe the arguments and you can make up your own minds. So that’s a very significant decision when it comes to corporate personhood and campaign finance and that decision was extended slightly in the McCutcheon case this term, which struck down limits on aggregate contributions. Right now, all of the action in campaign finance jurisprudence comes to the definition of corruption. Both Citizens United and McCutcheon say that the only corruption that is strong enough to justifying limiting the First Amendment rights of corporations or individuals is essentially quid pro quo corruption. I’ll give you $5,000 if you put a power plant in my district, or something like that. The dissenters in those cases said that a much broader notion of corruption should be constitutionally cognizable, namely the dependence that Congress people have on their funders. And when politicians have to spend all of their time raising money from a small group of donors, the dissenters said that creates an appearance of corruption that breaks the close connection between the people and the representatives that the founders took for granted so that’s the debate about Citizens United. The question of corporate personhood was further brought to the floor just last Monday in the Hobby Lobby case. This fascinating case where the Supreme Court held that a closely held corporation, whose owners are religiously motivated, could claim an exemption under the Religious Freedom Restoration Act, from the Affordable Care Act requirement that all employers provide contraception coverage. Now, that was not a constitutional decision. The Court didn’t say religiously motivated corporations have the same free exercise rights under the First Amendment as natural persons — it said that they have the same rights under the Religious Freedom Restoration Act, which is a statute passed by Congress. The dissenters objected that this would open the floodgate to future litigation and, in fact, the day after the Hobby Lobby decision was decided, Wheaton College — a religiously motivated college — asked for an exemption from its obligation to provide contraception coverage. The Court granted an emergency stay, and the four liberal justices — including the three women justices — strenuously objected that this had misapplied the Hobby Lobby decision and was opening the floodgates of litigation in a way that would allow lots of religiously motivated corporations to claim exemptions from generally applicable laws — from antidiscrimination laws to other laws. It’s true that closely held corporation was not all that specifically define in the case. A five-family member corporation could qualify, so Wal-Mart could qualify according to that definition, and they’ll be lots of litigation ahead about exactly what the religious rights of corporations are and what the definition or a corporation is. But the question was: what’s the implication of these important and complicated debates about corporate personhood for privacy? And it could point in a pro-privacy direction, although the Supreme Court, in a case just recently, said that corporations do not have privacy rights that allow them to have exemptions from health and medical laws. Or it could point in an anti-privacy direction. Google in some cases has taken the position that because everything it does is speech, as a corporation, its search algorithm may not be regulated under any circumstances. So when some people claimed in Europe that Google was favoring its own companies on search results and disfavoring that of its competitors, Google took the remarkably aggressive position that we are a corporation, we have the same speech rights as individuals. Everything we do is speech; therefore you can’t regulate us at all. It’s just intellectually fascinating and obviously that would have very radical implications for the ability to regulate Google at all if the internet service providers could take the position that their corporate speech is immune from regulation. So that’s my, I’m trying to be even handed here, just describing the fact that the move toward recognizing First Amendment rights for corporations will indeed have dramatic implications for privacy and free speech. Exactly which way it will be cut remains to be seen. The second of your easy questions was Roe v. Wade. And this is a big topic, but let me just say that the right to privacy recognized in Roe v. Wade is separate from the Fourth Amendment rights of property-based protections for the home that we’ve been discussing. It’s based more in autonomy than liberty. The right to privacy recognized in Roe had its roots in a case called Griswold vs. Connecticut, decided in the 1960s, involving the right to use contraception. And Connecticut at the time was the only state in the country that forbade married couples from using contraception. And the Court struck down this Connecticut ban, but it did so by creating this expansive privacy right that it found in what it called penumbras formed by emanations from other provisions of the Constitution. So, I hear a chuckle there, and some people did find Justice William O. Douglas’s rhetoric a little bit expansive to say the least. Douglas basically drove through the various provisions of the Bill of Rights and found different aspects of privacy protected in different parts of it. He said the First Amendment protects freedom of assembly and that has a privacy dimension. The Third Amendment prevents soldiers from being courted in the home and that’s an aspect of privacy. The Fourth Amendment says that we have to have security in our houses. The Fifth protects mental privacy. Douglas said that these various provisions converge in a penumbral right to privacy, which is broad enough to protect the right to use contraception. And that penumbral right was further extended in Roe, and Roe was reaffirmed in a case called Planned Parenthood v. Casey, where Justice Anthony Kennedy said, “At the heart of liberty, is the right to define one’s own conception of meaning, of the universe, and the mystery of human life.” Justice Antonin Scalia…I don’t even have to give you the punch line, you’re already, you’re waiting for it. You’re absolutely right he unkindly characterized that as the “sweet mystery of life” passage. He thought it was just too expansive. But this passage, this sweet mystery of life passage, has been invoked, both to strike down restrictions on intimate conduct by same sex couples in the Lawrence case, and its been invoked by lower courts to recognize a right of marriage equality. So this right sounds not in private property, not even in dignity, but in autonomy. So let’s just distinguish those three concepts. Private property is the privacy of the home, manifested by the laws of private property. Dignity as we’ve discussed has to do with our conduct towards each other. So, if Tom insults me by tweeting, he’s tweeting that I’m going on too long, he wants to know the answer to the third question and he thinks I’m going on too long on the second, he tweets, “Jeff is a bore,” he’s affronted my dignity, because dignity is something that individual citizens negotiate between each other and dignity is protected by the law of torts, by civil law. Autonomy is my relationship to the government, and when the government spies on Tom or me by tracking our movements or, according to the Supreme Court, when it tells a woman what she can do with her body, if it forces her to bear a child against her will, according to the Supreme Court, or according to lower courts, if it tells people who love each other whom they can marry and who they cannot, courts have said that’s a violation of autonomy. Again, I’m just being descriptive here, you see there are some people who very much support a robust Fourth Amendment right against unreasonable searches and seizures, like Justice Scalia, because he’s concerned about the framing, thinks that its like general warrants when the government spies on our private data. Some of those same justices are suspicious of the right of autonomy because they consider it too unbounded and not written down in the text. There are many Americans who believe and who have very strong arguments for this that when Justices infer rights from the Constitution that don’t have clear textual bases, then they’re substituting their own visions of morality, privacy and autonomy for that of the American people. So I just described for you that debate, and I hope that does signal the fact that the right to privacy in Roe is very important and has been reaffirmed many times and is now at the heart of the debate about marriage equality. It’s a different kind of debate than the right of over [open] planet. However, I’m sorry, Tom’s gonna do one more, “Please stop, Jeff,” I just have to do this one other fact. If we were trying to come up with a constitutional argument to stop the government from tracking Tom, and I were a lawyer before the Supreme Court, I think I might well invoke the right to autonomy recognized in Roe v. Wade. I might actually say that when the government puts cameras over each of us and tracks our movements 24/7, it infringes with Tom’s ability to define his own conception of meaning, the universe, the mystery of human life. It’s basically trying to conscript him into one way of life and just as citizens of the Soviet Union would go into fields to have private conversations because they couldn’t escape from cameras and eavesdropping, so a lawyer might argue today that the American government might violate our autonomy rights by tracking our movements 24/7. So if you want to know about the future of constitutional arguments against ubiquitous surveillance, I think the most promising one might not only be the Fourth Amendment because, as we were discussing, that really is rooted in notions of private property, it might involve also this broader right of autonomy. I’m doing my best but, Sherra, I have to confess, I forgot the third question.

Q: Privacy protections and free speech.

A: Well, this is just going to be a huge clash. This European right is both, Google is freaking out — they don’t know what to do, they also don’t have the bandwidth, they don’t have the number of lawyers to adjudicate all of these claims. I have to tell you, you think of, I don’t know how you think of Google or Facebook, but I’ve come to meet and know the people who are making these decisions at the Internet service providers. I was invited to see the so-called first responders who are deciding whether to take down content in response to objections on YouTube that the content violates community standards and I went around the YouTube headquarters in San Bruno, California, right by San Francisco National Airport and my host said, “Okay, pick out the first responders, the free speech people who are making these decisions.” And I’m looking around and it’s a former Gap clothing store, and everyone is wearing t-shirts and flip-flops and are 22 years old. Everyone looks exactly the same and they’re all hunched over their computers in their t-shirts and flip-flops. And I said, “I don’t know who the first responders are,” and my host said, “well, take a closer look, you can tell who they are by the porn that’s flickering on their laptops.” That basically, when users object that particular content violates YouTube community standards, sometimes involves racy pictures and these young kids have to make spot decisions about whether the content violates YouTube community standards, which prohibit pornography but allow political expression. But these are literally 10, 20 kids in San Bruno, and then if the question is hard and they’re not sure whether this particular speech should come down or not, then it can escalate up to the first responders in four countries around the globe, in Dublin and India and so forth. And then finally it gets up to these women I met last week and interviewed who are known by their colleagues as “the deciders.” They’re the ones who make the final decisions about whether to remove speech or not. But it’s the most fascinating thing to see because these are very smart people, some are lawyers and some are not, but it’s a small group of people and they’re now being asked to make these decisions on behalf of the entire world. Now, I do think in some circumstances, these young deciders at Google and Facebook are making better decisions about free speech and privacy than foreign governments are. When the innocents of the Muslims video was posted on YouTube, it was that clumsy, I don’t know what you want to call it, video about Muhammad, President Obama and the president of Egypt demanded that Google and YouTube remove this video on the grounds that it was causing riots in Benghazi. And the Google and YouTube first responders or, first of all, they’re woken up at 3 in the morning and they have to make a spot decision, they look at the video and they conclude that it does not violate Google and YouTube community standards, which prohibit criticism of a religion, you can’t say, “I hate Muslims,” but you can criticize a religious leader. You can say, “Down with the Prophet Muhammad.” It’s a Jesuitical distinction. You could even call it a Clintonian distinction. But they concluded that it did not violate YouTube guidelines. They left the video up in most countries, although they took it down temporarily in Syria and Egypt because they feared riots on the ground, and later it turned out, I know there’s a controversy about what caused the Benghazi riots, but at least it’s an open question whether or not this video did because it had been up for months in Arabic before the riots and there’s at least a strong argument that the riots were caused by other reasons. So in the heat of the moment, these young deciders have to decide whether the video violates their community standards and whether it’s threatening to cause imminent violence and I think they made a better decision at that point than the President of the Unites States and Egypt. But that’s a long way of saying that yes, indeed, huge conflict between free speech and privacy, it will be adjudicated — not only by courts, but by young people in t-shirts and flip-flops, and let us hope fervently that they are guided wisely in their decisions because they hold the fate of privacy and free speech in their hands.

—Transcribed by Carson Quiros