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Swaine's Flames


Dobbs v. United States, 520 US 126 (1955).

Counsel for petitioner: Lawrence Tribe, Boston Massachusetts.

Counsel for respondent: Hamilton Burger, Washington, D.C.

Narrator: It's November 9, 1995. Chief Just William Rehnquist has called for argument a case that could only have arisen in the digital age. In response to the Eurogate scandal in early 1995 and the attendant hue and cry for better security on the Internet, Congress passed the Security Hosting Act, requiring that all electronic services with access to the Internet be equipped with a Guardian. Guardians are, in layman's terms, antivirus viruses, capable of seeking out and destroying invading computer viruses. Howard Curtin Dobbs, operator of a small computer bulletin board system in Taos, New Mexico, which he maintained for himself and a few friends, refused to all a Guardian to be installed on his BBS, and was arrested and convicted of violating the Security Hosting Act. He appealed to the Supreme Court, which agreed to hear his case in an unusually short time. Mr. Tribe appears for the petitioner, and Mr. Burger for the government.

Tribe: Mr. Chief Justice, and may it please the Court. The issue before the Court today is whether--

Scalia: A moment, Mr. Tribe. We have your brief, but what isn't clear to me is, on just what Constitutional point does your argument rest?

Thomas: Yes, that's unclear.

Tribe: It is our contention that enforcement of the Security Hosting Act violates the Third Amendment.

Scalia: The Third Amendment? Are you serious?

Thomas: Yes, are you serious?

Ginsberg: Goodness, you can't mean the Third Amendment. That has to do with the quartering of soldiers in private houses.

Tribe: Yes--so a literal reading would suggest.

Scalia: Well, we would hardly expect so pedestrian a reading from you, Mr. Tribe. I can hardly wait to hear what creative interpretation you have in mind.

Tribe: It is our contention that the Court must concern itself with mapping the text and structure of the Constitution onto the texture and topology of cyperspace.

Scalia: That's lovely. Let me write it down.

Ginsberg: I want to be sure I understand. Mr. Dobbs's bulletin board is his house, and these computer programs are soldiers?

Tribe: I couldn't have put it better myself.

Ginsberg: You're stretching the language awfully far, it seems to me.

Tribe: The precedent for such an extension is clear. In another Third Amendment case, Engblom v. Carey, both the terms "soldier" and "house" were given broad interpretations.

Ginsberg: Oh, but not that broad. "House" still meant a structure and "soldier" still meant a human being, for goodness sake.

Tribe: But in Katz v. United States the definition of "house" in the Fourth Amendment was extended beyond the physical. The decision stated that the Constitution protects people, not places, an inspired phrase, in my opinion. Furthermore, "soldier" clearly designates a job, not a person, and as we all know, jobs once held by people are sometimes now performed by hardware or software.

Burger: May it please the Court! Mr. Tribe is making a mockery of this Court with his grandstanding tricks! Everything he has said is irrelevant, incompetent, and immaterial!

Rehnquist: Thank you, Mr. Burger. As it is now nearly lunchtime here in Barbados, we shall adjourn until 11 A.M., Greenwich Mean Time.

Narrator: One by one, the justices log off the net and the Court goes into recess.

The use of the names of real justices and a real lawyer in this column is for satiric purposes only. This column is entirely fictional. Somebody else wrote it and put my name on it.

Michael Swaine


Copyright © 1993, Dr. Dobb's Journal

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