The readings this
week made me think about tiny constables.
It’s not as weird as it sounds.
See, back in
2011, there was a case called United States v. Jones that went before the Supreme
Court. The issue at stake: whether or
not attaching a GPS to someone’s car without a warrant was an “unreasonable
search or seizure,” forbidden by the Fourth Amendment. The court held, unanimously, that warrantless
GPS tracking was unconstitutional.
This case is
noteworthy for a couple of reasons. First,
because Scalia wrote a reasoned, logical, and fundamentally correct majority
opinion upholding individual rights. Not
to speak ill of the dead, but that didn’t happen often. But second, and of more interest to this
class, Scalia and Alito had some interesting things to say about the changing
state of government surveillance.
The two
conservative justices both agreed that modern digital technology made tracking
people’s actions possible to an extent that our founding fathers could never have
envisioned as they wrote the Bill of Rights.
Justice Alito kind of adorably tries to frame GPS tracking in terms that
Madison or Jefferson could have understood.
“Is it possible to imagine a case,” Alito writes, “in which a constable
secreted himself somewhere in a coach and remained there for a period of time
in order to monitor the movements of the coach’s owner?”
Of course it’s
impossible. There is no reason anyone in
the eighteenth century would think that a policeman could shrink to the size of
a button and subsist with no food, water, or air for months at a time in order
to follow a suspect. It would have required, according to Alito, “either a
gigantic coach, a very tiny constable, or both.”
I think about the
tiny constable a lot when we come up against new problems in the digital age,
problems that our government, our laws, and even our moral philosophers never imagined before. These are grey
areas where it’s not even clear what moral principals apply, much less how.
Trading personal
privacy for access to news, as Libert and Pickard’s paper says we do, is a kind
of tiny constable. It’s an attempt to use new technology to achieve a fairly
dubious goal. On the one hand, does it
really hurt anyone for google to know their web history. Targeted advertisements are pretty harmless in the long run. Still, it freaks me out to know that my personal information is being mined like a natural resource. It’s upsetting,
and I’d prefer to opt out.
Native
advertising, too, is a tiny constable.
For an organization like Buzzfeed, something like “10 Facts about Beef
Jerky that Will Make Your Brain Literally Explode” is so close to something
they would publish anyway, it wouldn't matter if it’s actually sponsored by Bob’s
Beef Jerky Company. Could a publisher in
the 1900s have imagined publishing so many soft news articles every hour that a
few could actually be advertisements?
It’s unethical to
trick someone into reading an ad when they think it’s supposed to be unbiased
news. And it’s unethical to spy on
people without their permission. But
when media organizations come close to those lines without quite crossing them,
we need new rules. We can’t think about
these issues in traditional terms like constables and carriages. We have to understand what these companies
are doing and why, and then we have to decide for ourselves what is acceptable.
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