Technology has left our constitutions out of date. It's time for a reboot.
- By David RothkopfDavid Rothkopf is visiting professor at Columbia University's School of International and Public Affairs and visiting scholar at the Carnegie Endowment for International Peace. His latest book is The Great Questions of Tomorrow. He has been a longtime contributor to Foreign Policy and was CEO and editor of the FP Group from 2012 to May 2017.
National constitutions are supposed to enshrine fundamental rights for everyone — and for generations. Such documents are also products of moments in time and reflect perceptions of life in those moments. That’s why the best of them, like the U.S. Constitution, contain the seeds of their own reinvention. Indeed, the secret to a sustainable constitution is that it both captures what is enduring and anticipates the need to change.
Over the years, the U.S. Constitution has been amended 27 times — the first 10 being the Bill of Rights, of course — to ensure that it stays current with prevailing views of what is fundamental or best for the United States. Among the finest examples of the Constitution’s adaptability to shifting and maturing norms are the 13th Amendment, which ended slavery, and the 15th and 19th amendments, which guaranteed voting rights for everyone, regardless of race or gender, respectively.
Because it is meant to be malleable, the original Constitution included references to very few technologies. In fact, America’s founders were so sure that technologies would evolve over time that they even included protection of the rights of innovators in Article 1, Section 8 (the Copyright Clause). The technologies that were mentioned were ones that by the late 1700s had become so ingrained in day-to-day life that they were seen as natural to the course of human existence, or at least critical to the functioning of government: money, for instance, and a military. In at least two cases in the Bill of Rights, the unfettered use of technologies was seen as necessary for citizens’ freedom — those technologies being the press and arms. The press was more than three centuries old when the Constitution enshrined the right to freedom of expression. Meanwhile, the arms referenced were not specified, but no doubt included the firearms of the day that were essential to the upkeep of a militia, which was the express rationale (even if today it is generally overlooked) for the right to bear arms in the first place.
To be sure, technological progress challenges the assumptions that underlie even the best-conceived documents. This has been evident recently in the debate over whether Fourth Amendment guarantees against illegal searches and seizures, which explicitly pertain to the main information technology of the late 1700s (“papers”), cover technologies that have developed subsequently, such as email and metadata. And, surprisingly, there has not been more meaningful debate about whether the Constitution protects the use of arms that Madison & Co. could not possibly have foreseen — namely, modern assault weapons — and how the Second Amendment applies in a world without militias.
Arguing that people cannot assert rights beyond the imagination of the Constitution’s framers is an absurdity, and a dangerous one. As the metadata instance shows, it is hazardous not to bring the American conception of rights in line with the ways and means of modern life. Just as it took the invention of the printing press to trigger a deliberation on freedom of expression, technological changes today are so profound that they demand a reconsideration of what constitutes a fundamental right.
In recent years, more people have maintained that the right to unfettered Internet access is the modern equivalent of the right to the comparable technologies of centuries ago. The U.N. special rapporteur on freedom of opinion and expression has argued that disconnecting people from the Internet constitutes a human rights violation. A number of countries, including Costa Rica, Estonia, Finland, France, Greece, and Spain, have asserted some right of access in their constitutions or legal codes, or via judicial rulings. Meanwhile, some advocates, such as Internet co-inventor Vint Cerf, have argued that content on the Internet must be protected from censorship, lest people’s right to information be lost.
The thrust of these arguments converges on a single point: It is difficult, if not impossible in some places, to participate fully in today’s world without an open, available Internet. This will become even truer as access is increasingly required to win and perform jobs, gather news, participate in politics, receive education, connect with health-care systems, and engage in basic financial services. (Coin and paper money, one of those few technologies mentioned in the U.S. Constitution, will fade in importance in coming decades, outmoded by mobile banking.)
These are daunting thoughts on a planet on which 4.4 billion people lack Internet access — but that number is shrinking rapidly. The International Telecommunication Union projected in May 2014 that 3 billion people would be online by the end of 2014, up some 300 million from the previous year’s projection. In a July 2014 report, based on a canvass of more than 1,400 experts, the Pew Research Center found that even though governments will likely find new ways to restrict Internet access and content, billions more people may be online by 2025. Microsoft has estimated that number will be close to 5 billion.
This revolution carries with it other important questions. If there is a right to the Internet, for instance, does that mean people must also have a right to the electricity needed to plug into the web? The answer, resoundingly, is yes — even though, in a great tragedy of multilateralism, the creators of the Millennium Development Goals failed to set a benchmark for energy access. Electricity once seemed a luxury, but today the nearly 1.3 billion without it are effectively cut off from modern life. Yet this raises another question: In a world where roughly 80 percent of electricity is — and for a long time will be — produced by burning fossil fuels, how is the right to a clean, healthy environment also protected? This points to a need for universal access to clean, sustainable, and affordable energy.
Abstract as a discussion of fundamental rights may seem, determining what people must have to survive and thrive, and wrestling with the conflicts found among these elements, may represent the greatest challenge of this century. The world requires new rules that will empower and enable more and more people to tap into the full promise of human existence, while not simultaneously undercutting and diminishing that promise.
These rules are being made possible by technological advances, but they will not actually come to be if leaders do not act to create them — if governments leave it to the happenstance of progress to sort out tensions among the modern ingredients of life, liberty, and the pursuit of happiness. The conversation about necessary action is already coming too late. The longer it takes to kick into high gear, the longer humans will continue hurtling toward a new economic and social reality. Simultaneously, there will be much slower progress toward ensuring that the gains this reality brings are not offset by the tragedy of too few people benefiting or by the planet’s gradual but irreversible degradation.
Illustration by Matt Chase