confrontation clause requires one-way or two-way confrontation[26] .
Let us grant that Tribe’s descriptions of the available technologies are correct and that the framers embraced the only confrontation clause that their technology permitted. The real question comes in step two. Now that technology allows two possibilities — one-way or two-way confrontation — which does the Constitution require?
The Court’s answer in its 1990 decision in Maryland v. Craig was clear: The Constitution requires only one-way confrontation. A confrontation clause regime that permits only one-way confrontation, at least when there are strong interests in not requiring two, is a fair translation of the original clause[27].
As a matter of political choice, I certainly like this answer. But I do not see its source. It seems to me that this is a question the framers did not decide, and a question that if presented to them might well have divided them. Given the technology of 1791, they did not have to decide between one-way and two-way confrontation; given the conflict of values at stake, it is not obvious how they would have decided it. Thus, to speak as if there were an answer here that the framers gave us is a bit misleading. The framers gave no answer here, and, in my view, no answer can be drawn from what they said.
Like the worm in Chapter 2, the confrontation clause presents a latent ambiguity[28]. Constitutional law in cyberspace will reveal many more such latent ambiguities. And these ambiguities offer us a choice: How will we go on?
Choices are not terrible. It is not a disaster if we must make a decision — as long as we are capable of it. But here is the nub of the problem as I see it. As I argue in more detail in Part IV, given the current attitudes of our courts, and our legal culture generally, constitutional choices are costly. We are bad at making them; we are not likely to get better at it soon.
When there is no answer about how to proceed — when the translation leaves open a question — we have two sorts of responses in constitutional practice. One response is passive: The court simply lets the legislature decide. This is the response that Justice Scalia presses in the context of the Fourteenth Amendment. On matters that, to the framers, were “undebatable”, the Constitution does not speak[29]. In this case, only the legislature can engage and press questions of constitutional value and thus say what the Constitution will continue to mean.
The second response is more active: The court finds a way to articulate constitutional values that were not present at the founding. The courts help spur a conversation about these fundamental values — or at least add their voice to this conversation — to focus a debate that may ultimately be resolved elsewhere. The first response is a way of doing nothing; the second is a way of exciting a dialogue about constitutional values as a means to confronting and resolving new questions[30].
My fear about cyberspace is that we will respond in the first way — that the courts, the institutions most responsible for articulating constitutional values, will stand back while issues of constitutional import are legislatively determined. My sense is that they will step back because they feel (as the balance of this book argues) that these are new questions that cyberspace has raised. Their newness will make them feel political, and when a question feels political, courts step away from resolving it.
I fear this not because I fear legislatures, but because in our day constitutional discourse at the level of the legislature is a very thin sort of discourse. The philosopher Bernard Williams has argued that because the Supreme Court has taken so central a role in the articulation of constitutional values, legislatures no longer do[31]. Whether Williams is correct or not, this much is clear: The constitutional discourse of our present Congress is far below the level at which it must be to address the questions about constitutional values that will be raised by cyberspace.
How we could reach beyond this thinness of discourse is unclear. Constitutional thought has been the domain of lawyers and judges for too long. We have been trapped by a mode of reasoning that pretends that all the important questions have already been answered, that our job now is simply to translate them for modern times. As a result, we do not quite know how to proceed when we think the answers are not already there. As nations across the world struggle to express and embrace constitutional values, we, with the oldest written constitutional tradition, have lost the practice of embracing, articulating, and deciding on constitutional values.
I return to this problem in Chapter 15. For now, my point is simply descriptive. Translation is one way to deal with the choices that cyberspace presents. It is one way of finding equivalence across contexts. But in the four applications that follow, I press the question: Is the past enough? Are there choices the framers did not address? Are they choices that we must make[32]?
Chapter 10. Intellectual Property
Harold Reeves is among the best research assistants I have had. (But alas, the law has now lost him — he’s become a priest!). Early into his second year at the University of Chicago Law School, he came to me with an idea he had for a student “comment” — an article that would be published in the law review[1]. The topic was trespass law in cyberspace — whether and how the law should protect owners of space in cyberspace from the kinds of intrusions that trespass law protects against in real space. His initial idea was simple: There should be no trespass law in cyberspace[2]. The law should grant “owners” of space in cyberspace no legal protection against invasion; they should be forced to fend for themselves.
Reeves’s idea was a bit nutty, and in the end, I think, wrong [3]. But it contained an insight that was quite brilliant, and that should be central to thinking about law in cyberspace.
The idea — much more briefly and much less elegantly than Reeves has put it — is this: The question that law should ask is, What means would bring about the most efficient set of protections for property interests in cyberspace? Two sorts of protections are possible. One is the traditional protection of law — the law defines a space where others should not enter and punishes people who enter nonetheless. The other protection is a fence, a technological device (a bit of code) that (among other things) blocks the unwanted from entering. In real space, of course, we have both — law, in the form of trespass law, and fences that supplement that law. Both cost money, and the return from each is not necessarily the same. From a social perspective, we would want the mix that provides optimal protection at the lowest cost. (In economics-speak, we would want a mix such that the marginal cost of an additional unit of protection is equivalent to the marginal benefit.)
The implication of this idea in real space is that it sometimes makes sense to shift the burden of protection to citizens rather than to the state. If, for example, a farmer wants to store some valuable seed on a remote part of his farm, it is better for him to bear the cost of fencing in the seed than to require the police to patrol the area more consistently or to increase the punishment for those they catch. The question is always one of balance between the costs and benefits of private protection and state protection.
