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New York and Massachusetts: Your Digital Devices Are Constitution-Free Zones

Joseph Partain
Summer Law Clerk

August 16, 2023

The digital age is dead; long live the digital age. Once, we understood as a matter of common sense that what we posted online or did on our phones, while digital, was still real. A mean Tweet is mean speech; and your digital files are property, because why else would you have a password to exclude others from entry onto your phone or desktop? It’s a concept so obvious that even a child would tattle to his mom if his little brother hijacked his Xbox Live account.

Surely, then, if our digital activity is real, the government is bound by the Constitution here as ‘in real life,’ right? Think again.

New York rang in the New Year with a demand to social media companies: discourage “hateful conduct” on your websites or face fines. We’ve all heard of hate speech, but what is hateful conduct? According to New York, that is when you “use . . . a social media network to vilify [or] humiliate . . . a group or class of persons,” such as by racial displays or misgendering someone. What we would call speech, they call regulable conduct.

And in Massachusetts, there’s nothing wrong if the government tracks your every movement through a phone app. During the pandemic, the state worked with Google to install Covid-19 contact tracing apps on the cellphones of one in every seven Massachusetts citizens—over one million people. Even the Supreme Court knows digital data is property under the Fourth Amendment; but Massachusetts says the Fifth Amendment Takings Clause doesn’t apply to the space where you store data, because the space itself isn’t property. Their reasoning? Because Massachusetts broke into your phone without consent, that must mean you lack the right to exclude. By the same token, surely you don’t really own your house, since the government could just waltz in without permission if they really wanted to!

NCLA has taken action against both New York and Massachusetts. In New York, we are filing an amicus brief to help Professor Eugene Volokh’s fight to preserve an injunction against the “hateful conduct” law. In Massachusetts, we are leading the fight to prevent new iterations of the contact tracing app in Wright v. Massachusetts Department of Public Health.

These two incidents, implicating two distinct and critical constitutional issues, are nonetheless joined together by a common theme: constitutional erosion by euphemism. If the First Amendment’s command that a state “shall make no law . . . abridging the freedom of speech” sounds too harsh, then simply call speech by another name. For its part, New York says the law asks for social media sites to make statements on the ‘conduct,’ not to regulate them (despite the law’s title reading, “hateful conduct [is] prohibited”). All the same, if any court took New York’s argument seriously, then an artful lawyer could just as well claim The New York Times lacks speech rights, since printing a newspaper is just “forming letters from ink”; or that speaking up in a town hall is just “exercising one’s larynx.” Thirty-four years ago, the Supreme Court recognized in Texas v. Johnson that a law aimed at the expressive nature of ‘conduct’ is still a speech regulation.

That line rings true for the Fifth Amendment as well. Massachusetts knows paying just compensation would be a pester, so calling digital storage space “a bunch of one and zeroes” makes their problem go away. While 303 Creative has confirmed the First Amendment reaches the digital age, Wright brings the Takings Clause to a new frontier. Will your digital property get treated with the same respect as your digital speech? Only if Massachusetts doesn’t get their way.