This course addresses some of the most pressing constitutional questions raised by new technologies. The course is largely case-based, and considers the evolving technology-driven challenges of interpreting the scope of the First, Fourth, and Fifth Amendments.
With respect to the First Amendment, the course will consider the challenges of identifying when online expression constitutes a “true threat” outside the scope of protected speech. In making this determination, should the state of mind of the person issuing the threat be the critical factor? Or is it more important to consider how a reasonable person would perceive the threat? The course will also use a recent case involving negative – and allegedly false – Yelp reviews to explore the tension between protected anonymous speech and unprotected defamatory expression.
Fourth Amendment issues to be studied include a reexamination of the third party doctrine, which was articulated in the 1970s and holds that a person has no reasonable expectation of privacy in information voluntarily provided to third parties. Today, of course, engaging in the world through the use of the Internet and smartphones involves turning over vastly more information to third parties than in the past. How, if at all, should the third party doctrine be revised in light of these changes? The course will also consider the growing use of drones and the resulting implications with respect to privacy from overhead observations. This is an issue that involves both the Fourth Amendment (if the drones are operated by the government) as well as the First Amendment (if the drones are used by a private party).
With respect to the Fifth Amendment, the course will consider self-incrimination and the meaning of “testimony.” Students will study a series of cases involving attempts – sometimes successful; sometimes not – by prosecutors to compel suspects to divulge passwords needed to decrypt potentially incriminating files. Students will also examine the Fifth Amendment implications of emerging technologies such as functional MRI that can be used to observe thoughts, even in the absence of any external expression of those thoughts.
Students will receive one unit of credit for the course. Grading is pass/no pass, and is based on class participation, a team-based case presentation, and an individually-authored critical analysis memo.