Beyond the Digital Analogy in Constitutional Law
72 Pages Posted: 18 Mar 2020 Last revised: 31 Mar 2020
Date Written: February 20, 2020
Digital technologies permit activities and modes of communications unthinkable just a few decades ago. They also throw into question longstanding doctrines in constitutional law: the Dormant Commerce Clause has long functioned through fixed boundaries between states; the First Amendment has long presumed that speech mediums have been meaningfully restricted; the Fourth Amendment has long taken for granted that what containers can hold is substantially limited, as is the government’s capacity to access those containers. At the birth of the digital era, commentators wrote extensively about whether new constitutional rules were necessary to adjudicate issues presented by digital technologies based on the progress those technologies were likely to undergo. And in the quarter century since the birth of that era, the Court has begun to grapple with constitutional questions introduced by those digital technologies.
This Article is the first to collect and analyze the Court’s digital constitutional jurisprudence. It shows that despite the range of technologies involved, the Court has overwhelmingly analyzed the constitutional significance of digital technologies according to the constitutional status of older, non-digital technologies. This Article coins that principle at the heart of the Court’s digital constitutional jurisprudence “the digital analogy” and explores the integrative benefits that principle has served in denying the need for new constitutional rules. Yet many of the Court’s famous errors regarding new technologies have stemmed from overreliance on the principle underlying the digital analogy, and in recent cases the Court has declined to accept it without articulating a theory for courts to use in evaluating when to move beyond the digital analogy to create digital-specific constitutional rules. This article presents such a theory by rooting the digital analogy in constitutional doctrine rather than technological sameness or novelty. It then uses this model of understanding the digital analogy to resolve a number of splits in state and circuit courts on whether constitutional issues presented by a particular technology lend themselves to the digital analogy. It concludes by arguing in favor of digital constitutional rules in specific circumstances.
Keywords: constitutional law, digital technology, digital constitution, cyberlaw, first amendment, fourth amendment, carpenter, Riley
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