Lessig proposes that in our transition to an online world we are forced to adapt our traditional values from reality to cyberspace. Due to the inherent differences of a digital world this adaptation is not always straightforward, leading to disagreement and debate regarding these values on the internet. Lessig refers to this problem as “latent ambiguities.”
“We must always adopt readings of the Constitution that preserve its original values. When dealing with cyberspace, judges are to be translators: Different technologies are the different languages, and the aim is to find a reading of the Constitution that preserves its meaning from one world’s technology to another.” - Pg. 165
One of the most immediately apparent latent ambiguities is the interpretation of the United States Constitution as it applies to cyberspace. The traditional rights that we have come to depend on, such as our rights to privacy, free speech, and fair use of copyrighted material, are much less clear in the online realm. The founders crafted the Constitution to give us these rights in the world that they knew, but they could never have predicted and planned for how those rights would translate to the internet.
Consider, for example, the fourth amendment, which grants us the right to privacy. Traditionally this amendment makes it illegal to trespass on someone’s property and search through their things without a warrant. If a warrant is granted it must come from probable cause and be for a specific reason. This is straightforward in its traditional application, but much less clear when it comes to cyberspace. If somebody hacks into your computer remotely and copies files, have they trespassed? They haven’t physically gone onto your property and they haven’t technically seized anything of yours because you still have the original. Or how about the government intercepting and reading your emails? A literal interpretation of the fourth amendment wouldn’t protect us in these situations.
Lessig proposes that in situations such as this the constitution should be translated to preserve its originally intended function. The founders’ intention was to guard our privacy from those seeking to trespass on it. As such, a modern interpretation of the fourth amendment should grant us the same privacy online, even if this means extrapolating an interpretation from the constitution.
With so much of our modern lives intersecting with cyberspace, how we will protect our privacy? Most of our online activities are now tracked and recorded, available to those with the means to get at it. Things like our search words on Google, our e-mails, what websites we visit, our Facebook chat logs, and our voicemails are all stored digitally on some remote server. Face recognition software can be used in conjunction with security cameras to track our movements around a city. Even our DNA is beginning to be stored in digital databases so that we can be identified if need be. Modern technology is doing much to limit our privacy, and as technology improves our privacy in cyberspace will only continue to diminish unless the necessary laws and code are put in place to protect us.
Digital surveillance is one large issue. The government has the capacity to read our emails, see our chat history, and even remotely search files on our computer. Lessig proposes that law should step in to protect us in these situations, the way that traditional search warrants protect us against searches. He proposes that surveillance algorithms should only be allowed if they submit to the following regulations:
A regulation like this would preserve the traditional privacy values of the fourth amendment. The search would be transparent and available for review. It would be targeted and specific, and a target couldn’t be convicted of any crime that the search hadn’t specified. Lastly, the search would have to be reviewed by a court before any prosecution would begin. These regulations would help to protect our rights online against unlawful digital searches.