Jeffrey Rosen – Privacy, Property, and Free Speech: Law and the Constitution

Dizzying new technologies are putting unprecedented stress on America’s core constitutional values, as protections for privacy, property, and free speech are shrinking due to the wonders of modern life—from the Internet to digital imaging to artificial intelligence. It’s not hard to envision a day when websites such as Facebook, Google Maps, and Yahoo! introduce a feature that allows real-time tracking of anyone you want, based on face-recognition software and ubiquitous live video feeds.

Does this scenario sound like an unconstitutional invasion of privacy? In fact, ubiquitous surveillance may be perfectly legal, according to Supreme Court rulings that give corporations broad leeway to gather information. The Court has even come close to saying that we surrender all privacy when we step out in public.

Although the courts have struggled to balance the interests of individuals, businesses, and law enforcement, the proliferation of intrusive new technologies puts many of our presumed freedoms in legal limbo. Today, it’s easy to think that we have far more privacy and other personal rights than we in fact do. Only by educating ourselves about the current state of the law and the risks posed by our own inventions can we develop an informed opinion about where to draw hard lines, how to promote changes in the system, and what we can do to protect ourselves.

Award-winning legal scholar, professor, and Supreme Court journalist Jeffrey Rosen explains the most pressing legal issues of the modern day in Privacy, Property, and Free Speech: Law and the Constitution in the 21st Century. Professor of Law at The George Washington University Law School and frequent commentator on National Public Radio, Professor Rosen delivers 24 eye-opening lectures that immerse you in the Constitution, the courts, and the post–9/11 Internet era that the designers of our legal system could scarcely have imagined.

What Would the Framers Think?

More than 200 years ago, the framers of the U. S. Constitution and the Bill of Rights drafted a set of protections for privacy, property, and free speech that were inspired by notorious violations of those rights during the colonial period. How would they have reacted to the following aspects of modern life?

• Full-body scans: Passengers at airports now face “virtual strip-searches” with scanners that detect intimate features of the body as well as concealed contraband. The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures, but border crossings and airports are largely considered exempt from this rule.
• Cell phone surveillance: Your cell phone tracks much of your daily activity—information that should be safe from warrantless search and seizure. But according to the Supreme Court, “an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties”—in this case, to your phone company.
• Privacy in the cloud: Private papers were once kept under lock and key at home, where they were legally protected by the Fourth Amendment. But increasingly, these documents are on servers in the digital cloud, where they have weak protection at best, according to the Supreme Court’s third-party doctrine.

And what about social media websites that control more personal data for more people than any government spy agency could possibly match—and with few legal safeguards for the responsible use of the data? Or consider the implications of brain scanners, now under development, that can read a suspect’s mind during questioning, potentially violating the Fifth Amendment protection against self-incrimination.

Landmark Cases

In Privacy, Property, and Free Speech, you explore these issues and many more, tracing the landmark Supreme Court rulings that have defined the scope of government powers and individual rights over the nation’s history. Among the dozens of cases that Professor Rosen discusses are these:

• Whitney v. California: In this 1927 case, Associate Justice Louis Brandeis wrote a concurring opinion that is the most stirring defense of free speech in the history of the Supreme Court. Brandeis’s distinguished record on individual rights makes him a recurring figure in Professor Rosen’s lectures.
• Florida v. Riley: In 1989, the high court held that the police use of a helicopter to peer into a fenced yard from 400 feet without a warrant did not violate the Fourth Amendment. But a 2012 case, U.S. v. Jones, imposed some limits on the police’s ability to track our movements by affixing secret Global Positioning System devices to our cars.
• Atwater v. Lago Vista: Decided in 2001, this case established police authority that the framers did not anticipate: the power to arrest and detain individuals for any crime, regardless of how inconsequential. This power was expanded to include strip searches in a 2012 case called Florence v. Board of Chosen Freeholders of Burlington County.

In addition, you cover Griswold v. Connecticut, the 1965 case challenging a state law that prohibited the use of contraceptives and that established a constitutional right of “marital privacy.” Griswold underlies the legal reasoning in Roe v. Wade, the high court’s controversial abortion decision in 1973. You also probe District of Columbia v. Heller, which held in 2008 that the Second Amendment protects an individual’s right to bear arms. And you get intriguing insights into the judicial mind of Chief Justice John Roberts, based on a lengthy interview that Professor Rosen conducted with the chief justice after his first term.

What Do You Think?

Called “the nation’s most widely read and influential legal commentator” by the Los Angeles Times, Professor Rosen is renowned for his ability to bring legal issues alive—to put real faces and human drama behind the technical issues that cloud many legal discussions. When discussing a case in this course, he challenges you to make up your own mind, often stopping to ask, “How would you decide this case and why?” Then he encourages you to think about the impact your decision might have beyond the case in question. Could you live with consequences that might be unappealing to you?

Since our privacy, free speech, and other rights are increasingly threatened by corporations not ruled by restrictions on government, Privacy, Property, and Free Speech examines how companies get data about you and how they use it. To illustrate this process, Professor Rosen discloses a fascinating experiment that he conducted, in which he created two separate web identities for himself—a “Republican Jeff” and a “Democratic Jeff.” Then he watched how online ads quickly adjusted to target these two made-up individuals.

Finally, Professor Rosen offers a wide range of tips on what you can do to protect yourself in today’s intrusive society, whether online, at airports, or if you are ever stopped by the police for any reason.