Benjamin Wittes (BW)—[00:00:22:00] Look. I don’t want to overstate the radicalism of the project. I mean, people have imagined the future before and tried to think about how the Constitution applied to it. You know, ‘We’re going to be a nation of immigrants in the next 50 years. What are their rights going to be?’ Right? I mean, that sort of thing. Right? People do that all the time. ‘What would it mean, if we freed the slaves? Would they have rights?’ You know, that sort of thing.

There’s nothing unusual about the idea—again, it only works in a society that actually cares about its Constitution. But we do. And so, there’s nothing unusual about the exercise of sort of looking into the future and thinking about how that will, how you will respond as a Constitutional polity to…

And so, I do think there’s something different about that level of change. And, I do think there’s something, therefore, different about the need—instead of saying, ‘Oh, wow! We have all this speech going on on-line. Now we have a Communications Decency Act. Is that Constitutional?’, and thinking very microcosmically about the specific issues that it raises—and that’s a very valid thing to do and you actually have no choice but to do it because, you know, Congress passes a law and somebody sues to prevent the law from going into effect. And you have to adjudicate that. So, you have to think at that level.

But, our point is: Zoom the lens out a little bit and look at the big picture. And the big picture is, it’s not just, ‘Wow! The Fourth Amendment is under a lot of stress.’ ‘Wow! The Fifth Amendment is under a lot of…’ Right?

You can look at the Bill of Rights pretty pervasively and say, ‘Gee! Technological development is going to change our understanding of a lot of these things. And, that’s (a) inevitable (b) it’s not bad. But, it does require a lot of thought.

[00:03:32:02] Is thinking about the Constitution & technology in the context of the War on Terror—post-9/11—the most obvious challenge?

[00:03:38:17] I am not sure that’s the most obvious one.

I mean, I think the most obvious one is—we can...I am not sure its useful to debate what’s more obvious. But, I think the most obvious one, frankly, is the fact that we used to, and by ‘used to’ here I mean a few years ago, have a lot of anxiety at the idea of people creating digital dossiers on us. And now, Facebook came along and offered us the opportunity to do it to ourselves and each other in public and we all said, ‘Oh! What a wonderful idea.’ And now, we track each other. You know, we...our phones ask permission: ‘Would you like us to track your location for this app?’ And we click, you know, eagerly, ‘Oh, please!’, you know. We stick up information about what we’re thinking at a given moment, what we’re buying, where we are. ‘Please come rob my house right now, I’m not home. I’m off with, you know, Sophie, you know, at Kings Dominion.’ ‘Here’s some pictures of me, you know, at the theatre.’

You know. The level of information and intelligence collection that we’re doing on ourselves, on behalf of our friends is just enormous. And, it’s...you know, I don’t remember...it’s like half a billion people are doing this. So, it’s a...I think that is an enormous cultural change that just has huge, huge implications for all sorts of things, including, you know, the way we govern ourselves.

[00:05:35:28] Does it make a difference to talk about the Constitution & technology when National Security—not business—is on the line?

[00:05:42:13] Look. Yes. There’s...it’s not just a difference; there are a lot of differences. So, start with a few obvious ones.

First, the stakes are much higher. And therefore, the capacity...the tolerance of failure is much lower. And the regulatory option of failure doesn’t really exist.

So, we could take the view about Facebook and social networking and all these various technologies that we have to, you know, do intelligence collection on ourselves and each other, that…‘people want to do that, that’s fine.’ That’s actually sort of how I feel about it. You know. I think it’s an enormous cultural change. I certainly...I participate in it myself. I’m kind of aware of it. But,...I have a part of my the back head that’s anxious about it. But, it’s at the back of my head. It’s not at the front of my head.

You could also take the view—you have a lot of latitude as a policy matter, here. You could also take the view that, ‘Gee. We think this is really creepy. And we’re going to do all kinds of regulation to protect people in the context of these interactions.’ And, that’s sort of the European Union approach. Right?

Now, the counter-terrorism|National Security space—and the reason you have that degree of latitude is that the stakes are relatively low. You know, what’s the worst that’ll happen? Well, some people will have pictures of themselves that are embarrassing available to people they’d rather not see those pictures. Some people will, you know, maybe not get jobs. Some people have their parents find out about their sex lives. That would be really unfortunate. But, you know, as a society, we really can tolerate that kind of thing. It’s...you know, and similarly, if you regulate, aggressively, some business may not make as much money as they’d like to. Some people may have less consumer product available to them than they wouldd like to use. Again, these are very manageable costs from a social point of view.

You know, the National Security space doesn’t work that way. Right? If you don’t take the steps to prevent truly terrible things from happening, and the result is that terrible things happen—people die; people’s sense of safety in the world is very dramatically altered—some of the things that we have to hypothesize could happen are really terrible, you know...not, you know, suicide-bombing-type-terrible but, you know, buildings-falling-down-kind-of-terrible or worse, you know, epidemics-of-disease-kind-of-terrible.

And, the tolerance for failure is and should be lower than it is in other spaces. And as a result...And similarly, the burdens of those aggressive actions on individuals are higher. So, if you compare it to the regulation of data privacy in the private sector, where you say, ‘...you know, if Facebook uses your data very aggressively, what’s the worst that’ll happen to you?’ It’s not that bad. Right? Here, what’s the worst that’ll happen to you is really, really bad. Right? And similarly, where you say, ‘And, what’s the worst that’ll happen, if you fail...if you regulate it aggressively and don’t do it well?’ You know, here the worst that’ll happen is, if you act aggressively toward individuals who you shouldn’t be...you might make errors about...the consequences are pretty high and similarly the consequences of the failure to do something are very, very high. So, you know, I do think it’s just profoundly, structurally different, in terms of both the necessity of significant government action and the consequences of errant government action.

[00:1154:03] Yeah. I think there has to be. I mean, I think the idea that we are, as a society, going to sit passively as we develop technologies that allow, you know, the individual to destroy the world—which, you know, that’s an exaggeration but it’s only a little bit of an exaggeration. Right? We’re going to sit passively and say, ‘OK. You know, we’re going to, sort of take a Second Amendment attitude towards this.’ Right? That we have these technologies that allow you, the individual, to do just incredibly horrible things. And, you know, you really shouldn’t do them, you know. But, we’re really more afraid of government regulation and government involvement than we are of what you’re going to do with, you know, the fertilizer bombs that you can build or the biological weapons that you can construct or let’s…you know, the small robots, we don’t talk about this in the book, but the small robots that you can build and do all kinds of amazing things with. And I think it’s simply implausible—it’s not the way any government has ever behaved, or at least no government that’s still around. And there’s a reason for that.

[00:13:31:29] There getting less every day. You know, we project force against individuals in Pakistan from Nevada. Eventually, individuals in Pakistan will project force against Nevada from Pakistan. You know. That’s what you see already in the cyber-security context. Individuals in countries that, you know, don’t have the same attitudes toward enforcement that we do and maybe benefit by their activities are very capable of attacking individuals, corporations and government entities domestically—and, by the way, in every other country. Right? You know, those are, that’s a reality of networked infrastructure. And, we’re dealing with that and that will, the more empowered the individual gets around the world, and that’s a, you know, big long-term trend, the more you will have to think about security as, you know, a highly decentralized, international enterprise.

—End of Part Two—

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 Three: Convergence

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

Part Four: Limiting Principle

Is a recent Supreme Court case a sign we have hit a Constitutional limit & who should decide

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.