At the National Constitution Center, we value civil dialogue, which empowers students to speak about constitutional and historical topics in ways that remain civil, respectful, and reflective. As you prepare to discuss these topics in your classroom, we encourage you to establish norms such as:
- Stay calm
- Listen patiently
- Listen actively
- Don’t speak twice until everybody has spoken once
You can find more support for establishing norms and civil dialogue practices in our Civil Dialogue Toolkit.
Media Asset
National Constitution Center’s Special Project - Balancing Privacy and Security in the Digital Age: A Twenty-First Century Framework for Digital Privacy
Big Constitutional Questions
- How can we strike the right balance between security and privacy in the digital age?
- What constitutional and statutory protections should there be for data stored through cloud-based services, and under what circumstances and with what constraints should the government get access to it?
Headline Story
The National Constitution Center’s President and CEO Jeff Rosen explains, “At the beginning of the 21st century, breathtaking changes in technology pose stark challenges to privacy and security. Private companies collect massive amounts of consumer data—information that often contains intimate details about our personal lives, from the people that we email to the apps that we use to the websites that we visit. Law enforcement often seeks to access this information when investigating suspected criminals and terrorists, and the data itself is highly mobile, with companies able to send it across borders at the tap of a button. At the same time, hackers threaten our personal data through cyberattacks, and sophisticated users shield the contents of their data from law enforcement through the use of cutting-edge encryption tools.”
Developed before the Supreme Court’s landmark decision in Carpenter v. United States (2018), Balancing Privacy and Security in the Digital Age, brings together leading experts to consider the future of the Fourth Amendment in the digital age, reflect on the challenges that new technologies pose to privacy and security, and tackle one of the most important legal challenges of the digital age—how to protect privacy and security in the era of cloud computing. Contributors included Jennifer Daskal of American University Washington College of Law, Jim Harper of the Competitive Enterprise Institute, David S. Kris of Intellectual Ventures, Neil Richards of Washington University School of Law, and Christopher Slobogin of Vanderbilt Law School.
Carpenter ultimately held that the government must obtain a warrant to access a person’s historical cell-site location records, signaling a shift from the longstanding third-party doctrine and offering new constitutional guidance on digital privacy. In this way, the project not only teed up many of these core issues early on, but now provides a valuable foundation for understanding Carpenter’s significance and the future direction of privacy jurisprudence.
Amendment / Clause Focus
- Fourth Amendment
Scholar Perspectives
|
Scholar |
Key Ideas & Quote |
Why It Matters |
|
Jennifer Daskal of American University Washington College of Law |
“Law enforcement’s ability to access digitalized evidence turns on where the data is held.” |
The rules for data access were built for an older world and they don’t fit how technology works today. Daskal’s ideas help you understand why digital privacy laws need updating and how your privacy might be affected as technology evolves. |
|
Jim Harper of the Competitive Enterprise Institute |
“Courts should protect privacy at least as much as the Founding generation did recognizing data, information, and communications as a key form of property.” |
Harper argues that your emails, texts, and files are as personal as the things in your bedroom. He wants you to ask: If your phone is basically a digital house, shouldn’t the government need a warrant to “enter”? |
|
David S. Kris of Intellectual Ventures |
“Far from a ‘golden age’ of surveillance, we live in a time when massive data volume, mobility, and encryption harm both government security efforts and individual privacy.” |
You live in a world where almost everything you do online creates data. Kris wants you to see that technology doesn’t just threaten privacy, it can also make it harder to stay safe. He’s asking you to think about how both government and individuals are vulnerable in the digital world. |
| Neil Richards of Washington University School of Law | “Secret government searches… are unprecedented and inconsistent with key constitutional values, including freedom of thought and expression.” | Richards wants you to imagine what it feels like to be watched without knowing it. He’s reminding you that privacy protects your ability to think freely, explore ideas, and make mistakes without fear. |
| Christopher Slobogin of Vanderbilt Law School | “The level of intrusion and the amount of data requested should determine how much justification the government needs up to and including, perhaps, a warrant.” | Slobogin challenges you to think about fairness. He’s saying: If someone only looks at basic information, maybe that’s okay but if the government wants deep, private data, it should have to provide a really good reason. |
Primary Source Spotlight (Embedded Excerpts)
Carpenter v. United States (2018): “What’s left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers.” - Justice Neil Gorsuch (Dissent)
