Between First and Fourth: Privacy and Speech on the Frontier of Technology

Privacy and free speech—two constitutional rights that often complement each other. In the information age, however, the tension between these values is increasingly apparent. Individuals, corporations, and governments create, use, store, and sometimes lose vast amounts of personal information. New technologies, databases, and systems—such as drones, Google Glass and biometrics—are being used at an increasing scale by both public and private actors. How can we use information without undermining privacy? How can we protect information without restricting free speech? These questions are not rhetorical. In this Study Group, we will explore the technologies, actors, and values at play in the space between speech and privacy in the information age.

The goal is to surface the legal and policy questions and gaps as these emerging technologies change the landscape, borrowing from an interdisciplinary perspective. Sessions will involve robust discussion and participation in a seminar-style format. Attorneys of the ACLU of Massachusetts will lead the conversation each week.

January 28
February 11
February 25
March 11
March 25
April 8

Convened by
Jessie Rossman <JRossman@aclum.org>
Mason Kortz <mkortz@aclum.org>
Matthew Segal <msegal@aclum.org>
Naomi Gilens <ngilens@jd16.law.harvard.edu>

The application period for participation in this Study Group is now closed, but feel free to follow along with the syllabus shared below.

SYLLABUS [Download the PDF]

Week One: Introduction

When we talk about “free speech” and “the right to privacy,” what do we really mean? Why did the constitution restrict the government’s ability to infringe on those rights in the first place? What are the tensions between the First and Fourth Amendments? Within each Amendment? How do private actors fit into the framework of how we think about these rights?

Required readings

Optional readings (mainly for participants looking to familiarize themselves with the issues and legal rules we’ll be discussing in the reading group):

Week Two: Physical Surveillance

How do speech and privacy values come into conflict in the realm of physical surveillance technologies such as drones, Google Glass, surveillance cameras and automated license plate readers? What does it mean for private companies to have a First Amendment right to record video that may infringe on individual privacy? What are the privacy rights implicated by such surveillance? How does such surveillance implicate the First Amendment Right to Associate? Where do we—and where should we—draw a distinction between private and public actors?

Required readings

Optional reading

Week Three: Infrastructure of the Internet

The government is increasingly involved in the provision of broadband internet access by becoming involved in the provision of municipal WiFi and municipal fiber or by regulating private service providers. To what extent should we be concerned with the ability of private internet providers to control what users see and access? What are the benefits and concerns if the government owns the Internet instead? Should the government regulate private service providers to protect privacy and speech? What system can we design that would best protect our constitutional rights of speech, privacy, and access to information in this changing landscape?

Required reading

Optional reading

Week Four: Data, Speech, and Privacy

Is there a line where data ceases to be protected speech, and if so, how do we draw that line? Are computer code or algorithms protected speech? Do arguments that data is not speech for the purposes of the First Amendment create tension with arguments that the same data contains information that triggers Fourth Amendment protections? What happens when data is a potential precursor to both protected speech and forbidden government searches?

Required reading

Optional reading

Week Five: Free Speech on the Internet

How and why does the Internet raise particular, unique tensions between speech and privacy? How do we balance access to public information against the “right to be forgotten”? How do we balance the right to free speech on the internet against cyber-bullying concerns, particularly with respect to schools? Should the speech/privacy balance play out differently on the Internet?

Required reading

Optional reading

Week Six: The Relationship between Government, Corporations, and Individuals

How do the interactions between these three actors raise distinct speech and privacy issues? For example, ever since Snowden’s disclosures created an uproar over the extent to which private companies were willingly handing over users’ data to the government, some companies have been racing to one-up one another in demonstrating their commitment to privacy. At the same time, many of these companies continue to collect such sensitive information for themselves. What do we think about these simultaneous trends? What does this mean for future relationships between the government and corporations? Can individuals choose to give data to private companies but not the government (or vice versa)? Relatedly, to what extent might the use of privacy tools such as Tor affect the Fourth Amendment calculus of whether users have reasonable expectation of privacy in their information?

Required reading


Last updated

January 29, 2015