In response to the rise of hacking, cyber-theft, espionage, etc., the openness of the Internet is under a new form of attack. Understandably, given the potential magnitude of security harms and of economic losses, the defense establishment is increasingly focusing on of cyberspace. For examples, see the ongoing buildup of Cybercom, the recent executive order on cybersecurity, etc. The future of cybersecurity is in flux, but its shape will be affected by our constitutional protections. To that end, and because much of cybersecurity planning involves creative thinking about potential challenges in a dynamic environment, it is important to think creatively about the protections that we have. At the risk of being a little too “out there,” this post suggests a role for a forgotten constitutional amendment in limiting cybersecurity proposals to protect basic civil liberties.
The curious thing about this buildup is that the Internet is not someplace “out there,” like Afghanistan, or China, or Niger, or Mexico. Cyberspace is not a space external to the United States. The spatial metaphor needs unpacking, now that its resolution has actual consequences for various elements of privacy laws. I want to raise the possibility of thinking of cyberspace not only as a space that is at least partly internal to the United States, but as a space that is at least partly internal to the home. My claim is that the proposed increase in surveillance and defense activity on the Internet not only implicates potential Fourth Amendment privacy concerns, but also rehabilitates the moribund Third Amendment’s protections against the intrusion of military into the home.
The Third Amendment? Yes. I’ll wait.
The amendment speaks of quartering soldiers, and of course there are no proposals for physically installing NSA agents into every home. But some proposals for the future of cybersecurity do suggest that the NSA will inhabit the Internet: every time you open up your laptop you will be able to feel its comforting presence.
It is worth recalling the Third Amendment’s origins in protecting the house-as-castle against the forced billeting of soldiers. The presence of soldiers was a constant reminder of the state’s military power, as well as a direct invasion of privacy. While much of contemporary privacy law deals with the Fourth Amendment’s role in limiting the powers exercised in pursuit of the legitimate need for police investigations, the Third Amendment fills a distinct space in the constellation of civil liberties. The Third Amendment recognizes the fundamental insecurity of the individual home against the power of the state, and even if the agents of the state are not doing anything per se objectionable, their mere presence signifies the power of the state and is, in itself, a violation of privacy.
My claim is that putting the network under the watchful eyes of the military runs the risk of implicating the Third Amendment. There are two primary textual objections: the Amendment refers to “houses,” not laptops; and the Amendment speaks of “quartering,” not monitoring. This is where I think a frank recognition of the changed realities of the present day are necessary. I would argue that laptops might fall within the ambit of the Third Amendment. While they may be used outside of the house, they may also be brought directly inside. Perhaps we have no real expectations of privacy on the Internet, but that doesn’t change the recognition that in some future cybersecurity scenario you could potentially be interacting (in some sense) with the NSA whenever you open your laptop at home. The range of essential activities (including highly personal ones) that take place on the net suggest some privileged role for these technological platforms. As for the issue of quartering, it seems within reason (or at least not too far beyond reason) to argue that any cybersecurity initiatives that affect the operations of home Internet connections should fall within this language. Quartering suggests both presence and some impact on the material situation of the home, and could be satisfied by the continued presence (however discontinuous) of the NSA within the network, particularly if there is some degradation of network traffic. Both of these requirements could be met by a liberal interpretation of the Amendment under this scenario.
Whether or not the Third Amendment is actually implicated will rest on the implementation of these cybersecurity proposals. The farther upstream these defenses are implemented, the less intrusive they will be. But if these defenses are implemented in such a way as to allow some state intervention into personal machines, the Third Amendment may be triggered.
Normatively, the Third Amendment provides an important check on the expanded reach of the state (and, in particular, of the military) into the everyday. To the extent that home Internet devices become a front in potential cyberwars, the defense establishment will need to pay attention. But it will need to craft its policies carefully in order to avoid bringing its military powers to bear within the home. It is because the Internet redefines the space of conflict and redefines the potentials for intervention that the boundary between the home and the outside world has become more problematic to navigate. In this political and technological context, the forgotten Third Amendment may provide an important check on the reach of state intervention.
Looks like there’s a law review article coming out on this same issue: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2257078