Friday, December 27, 2013
Thomas Fetzer and Christopher S. Yoo (University of Mannheim and University of Pennsylvania Law School) have posted New Technologies and Constitutional Law (Routledge Handbook of Constitutional Law 485 (Mark Tushnet, Thomas Fleiner, Cheryl Saunders, eds., 2013)) on SSRN. Here is the abstract:
One of the most controversial issues among legal academics is the extent to which constitutional interpretation should adjust to reflect contemporary values. What has received less attention is the extent which changes in constitutional interpretation are driven not by shifts in political mores, but rather by new developments in technology. This chapter provides three examples of how technological change can affect law. First, technology can undercut existing law, as demonstrated by how the shift to digital and Internet-based transmission has undermined the rationales traditional for applying a relaxed standard of free speech to broadcast television. Second, technology can create pressure to modify existing law, illustrated by how protections against search and seizure have adapted to the advent of global positioning systems (GPS). Third, technology can provoke the creation of new constitutional rights, exemplified by the German courts’ recognition of constitutional protection against remote online searches of computers. These developments also raise important questions whether courts or legislatures are better suited to deal with this fast-changing environment.