Technology & the law: how does the Constitution--written 200 years before Facebook and texting--apply to the digital world?

• Author: Olsen, Stefanie
• Position: NATIONAL

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When the Founding Fathers sat down to write the Constitution and the Bill of Rights, they could never have imagined anything like cyberspace.

Now that technology has become such an integral part of everyday life--with teens often leading the way--the courts are struggling with how to translate constitutional principles and protections for the digital world.

Among the issues the courts are grappling with are how the First Amendment right to free speech, the Fourth Amendment's protection against "unreasonable search and seizures" and laws against harassment apply online.

Here's a look at five areas in which the courts are trying to answer these types of questions.

Free Speech

The Issue: Do you have the right to express yourself online without fear of legal action?

The Background: The courts have said First Amendment rights do apply online. But those free-speech rights are subject to the same limits as in person and in print: You can't defame, libel, or slander another person. * What makes online speech trickier is the instant access to an enormous audience that the Web provides. Casual comments that were once made to friends in person or on the phone are now permanently "published" on websites and social networks, making them easier targets for legal action.

What the Courts Have Said: After Justin Kurtz, a 21-year-old college student in Kalamazoo, Michigan, had his car towed earlier this year, he turned to Facebook to vent about his experience. But the Facebook group he created, "Kalamazoo Residents against T&J Towing," prompted a defamation lawsuit by the towing company, which is seeking $750,000 in damages. Kurtz says he did nothing but tell the truth of his experience. The legal battle is ongoing.

Courts are also grappling with how much control schools can exert over their students' online speech.

In 2006, Pennsylvania high school senior Justin Layshock was suspended for creating an online parody of his principal, writing on a fake MySpace profile that the principal was "too drunk to remember" his birthday. The resulting lawsuit against the school, Layshock v. Hermitage School District, argued that the school, in punishing Layshock, had violated his right to freely express himself online. A judge sided with Layshock, but the school has appealed. In other similar cases, including a separate case in Pennsylvania, the courts have ruled that the schools were justified in punishing students for things they'd written online.

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"Schools argue that the Internet changes everything, because it's available everywhere and they should be able to punish [students] as if they were in school," says Vik Malchak, legal director of the A.C.L.U. in Pennsylvania. "But that would make principals censors of the Web."

What to Watch For: Free-speech lawyers say that the Layshock case could be among the first online free-speech cases to reach the Supreme Court.

"The question is," says Malchak, "to what extent can school officials punish students for what they say off campus, especially what they say on the Internet, typically from their home computers."

Cyberbullying

The Issue: Can you go to jail for harassing someone via text message or on a social networking site?

The Background: Bullying is as old as the schoolyard. But the Internet, social networks, and text messaging have brought vast new opportunities for abuse. (See Voices, p. 29.) Online bullying can be particularly harsh because the taunts can go viral, spreading quickly and broadly.

"No place is safe, because technology can reach you anywhere, 24/7," says Parry Aftab, an Interact lawyer and executive director of stopcyberbullying.org.

In January, Phoebe Prince, a 15-year-old high school student who had...