Benjamin Wittes (BW)—[00:00:24:00] Yes. Although, I would argue—and I don’t anything about algorithmic analysis of license plates for purposes of that. But, I would argue that the efficiency, the value of the algorithm should affect our judgments of those things.

So, imagine two programs, one of which, both of them evaluate license plates—every license plate that goes by, they don’t, they’re not looking, you know, only at the black people’s license plates or only at the Muslims’ license plates. Right? They’re looking at every license plate that goes by and they’re, you know, analyzing something. Right? And one of them is identifying people who are actually, legitimately of interest to law enforcement, for one reason or another. And one of them is of marginal, very marginal value but encumbers...What I would say is, what the algorithm produces in terms of a viable hit ratio is actually important to the analysis there.

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This is one of the points of Jack Goldsmith’s paper. Right? That, you know, if Einstein 3 is identifying genuine Cyber threats, well, your Constitutional analysis of it is going to be very different. This is also the point of Orin Kerr’s paper on…[GWorks: use restrictions]...yeah, exactly. 

How you, how the system, the data mining system performs affects whether you think it’s reasonable or not.

Now, people don’t like the no-fly lists, and there’s probably a lot to be said for those complaints. But, you know, the effectiveness of those algorithms, I would argue, first of all, I think empirically, does affect how people feel about them. But, I would argue that it should affect how they feel about them.

It’s improbable in the extreme to my mind to think that if we have good ways of using data to think about who we should be worried about that we’re not going to use that data. And so the question really should be, how do we use it? And, are we using it in ways that are effective and minimally encumber people’s liberty? Or are we using it in ways that are ineffective and more significantly encumbers people’s liberty.

[00:04:09:10] Is the Supreme Court’s decision in Jones [United States v. Antoine Jones, 564 U.S. __ (2011)] a sign we have hit a limit on how much government can exploit information that may be public?

[00:04:15:25] Yeah. I think that’s right. I mean, I think people have a visceral sense...and you know, look, the fiction that this is a trespass when you touch the vehicle...Right?...is kind of a silly fiction. But, I do think you have a pretty broad consensus among the Justices that, you know, following somebody around for a month, electronically, is much more like going into their house than it is like casually interacting with somebody in a public place. And, you know, that does strikes me as a significant—it leaves all the big questions unanswered. But, it does strike me as reflecting some sense of a limit, or that there is a limit—though, it doesn’t really answer what it is or where it is.

[00:05:20:05] Doesn’t Jones reject the idea that merely being in public allows the government to collect as much information as technology allows?

[00:05:26:05] At least to the extent that somebody puts his hand on your car. Right? Now, if they get, if they simply write your cell phone carrier and say, ‘Give me all his cell site location data for the last month.’ And they send a subpoena for it. I don’t know what the analysis is in that case. Right? And it would have exactly the same effect. You know, it would be your location at every minute for the last, you know, X number of days. And it wouldn’t raise the same issue because it certainly isn’t covered by the Fourth Amendment.

And so, I don’t really know if there’s a...I don’t really know if there’s a  principle there or if the principle is really, to the extent that somebody, in the course of following you for a month, happens to fondle your car.

[00:06:24:28] Is it important who—which Branch of government—makes this decision?

[00:06:29:13] I think of this as an area where the total amount that the Supreme Court has...is likely to be able to contribute usefully is small. Not zero. But, small. And this case is a very good example of that.

So, what they said was, you know, if you put a device on someone’s car and that device follows the person for a really long time, well that is a “search” for purposes of the Fourth Amendment.

It doesn’t say...it doesn’t answer the question, so, what if you do it without touching the car? What if it’s for a pretty long time but not a really long time? Right? And, what if it, you know, gives, not everywhere they go but a lot of places they go? You know, reports in once an hour or something like that. Right?

It doesn’t answer those questions. And, it doesn’t even really hint at the answer to those questions.

And so, my point would be, we can kid ourselves that the Court over time is going to do more than sort of plant guideposts here. But, at the end of the day, the ability to follow a lot of people with perfect efficiency is not a problem the Founders thought about. It’s not a problem that they could’ve even imagined.

And if you want, we can be informed by their principles in thinking about some problems that they did confront in thinking about it. But, at the end of the day, we have to come up with an answer to this problem.  It’s not one...whatever it is, it’s not really a “search” in the sense that the Founders…it’s not rifling through someone’s stuff. Right? It’s not patting somebody down. It certainly isn’t a “seizure.” It’s something else. It’s something that we’ve...it’s a problem that has arisen in the life of the Nation, in our lifetimes not in theirs. And we should sort of have the guts to figure out what we think about it.

I know what I think about it. I kind of know where I would draw the line. But, I don’t think that...I don’t kid myself for a minute that my views of it should govern everybody else or that large numbers of people would necessarily agree with my views. And, I think that there’s a...this is really a place where a concerted legislative process probably makes a lot of sense.

[00:09:39:08] Is it realistic to think Congress can balance Constitutional values & technology

[00:09:43:23] Look, we’re not going to sit down over the next couple weeks and come up with a major piece of legislation. The Foreign Intelligence Surveillance Act in 1978 took three or four years to write. It started working on it in 1975, ’76. Passed in ‘78. It’s required a lot of work since then. Title III of the 1968 wiretapping bill is similar. It took a long time. It took a lot of work. It’s had to be updated at various times.

I mean...you know, so, these are not pieces of legislation that, you know, spring full-blown from Zeus’s head. And, they’re processes. And there has been for the last several years a pretty significant legislative effort on geo-locational privacy issues, among other things. And, you know, what’s called “ECPA reform.”

Some of it’s, you know, coming to an understanding between the Administration and key Members of Congress and the advocacy and business groups is a challenge. But, I think that’s ultimately a more promising way to structure the discussion than a whole lot of isolated pieces of legislation—of litigation.

And, I don’t doubt that you could do it in a litigation framework. I just think it’s a sub-optimal way to do it. Yeah, and all the constraints that you describe as a matter of constraint on the discussion are real. That’s what makes it hard. It should make it hard, by the way. They’re real issues.

—End of Part Four—

For more GWorks Interviews: Benjamin Wittes,

please visit

Part One: Imagine That

Constitution 3.0 described & imagining the challenges technology poses for Constitutional values

Part Two: A Different Day

Technological development, National Security & Constitutional values

Part Three: Convergence

How technological development & the War on Terror affect thinking about military force, law enforcement & the Constitution

Part Five: Conclusions

Biological weapons made in basements & what readers should take from Constitution 3.0.

EDITOR’S NOTES

GOVERNINGWorks filmed GWorks Interviews: Benjamin Wittes on Wednesday 21 March 2012 in Mr Wittes’s office at The Brookings Institution, District of Columbia. GWorks would like to thank Mr Wittes for his generous participation; and Ritika Singh, Mr Wittes’s Research Assistant, and Natalie Fullenkamp for their work to make this interview happen; and The Brookings Institution.

Photo: Book Cover: Constitution 3.0: Freedom & Technological Change. Courtesy The Brookings Institution.

Photo: Benjamin Wittes. Courtesy The Brookings Institution.

Please note: Jeffrey Rosen and The Brookings Institution provided GOVERNINGWorks with a Reviewer Copy of Constitution 3.0.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.