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In 1905, Albert Einstein published his famous equation, E=mc 2. However, for 30 years, the world’s leading scientists thought it unlikely that anyone would find a way to release the enormous energy of the atom. One physicist, Leo Szilard, was irritated by his colleagues’ attitude, “because how can anyone know what someone else might invent?” Then Szilard had an epiphany: By using neutrons to bombard a sufficient quantity of an unstable element, such as uranium, scientists could create a chain reaction that would release virtually unlimited energy, enough energy to power the entire planet-or destroy it. Einstein was stunned: “ Daran habe ich gar nicht gedacht,” he said [I hadn't thought of that at all]. Within a few years, the United States detonated the world’s first atomic explosive, prompting Robert Oppenheimer, the leader of the Manhattan Project, to recall an ancient Hindu verse: “I am become Death, Destroyer of Worlds.” The development of nuclear weapons represents merely the beginning of what Carl Sagan called society’s “technological adolescence”-a time when humanity’s ability to destroy itself exceeds its collective wisdom. Humanity is daily inventing new technologies that not only increase the pace, productivity and comfort of human existence, but also increase the probability of that existence coming to a sudden end. Other catastrophically dangerous technologies are already here. Small quantities of chemical weapons could wipe out cities; larger quantities could sterilize continents. Microorganisms bioengineered to resist vaccines and antidotes could spread across the globe in a matter of days. Soon, humanity’s power to destroy itself will increase again, perhaps exponentially-”because how can anyone know what someone else might invent?” How should we, living in a far-from-perfect society, prevent such inherently, catastrophically dangerous information from falling into the wrong hands? Specifically, can we reconcile a governmental restriction on receipt, dissemination and even possession of such information with the First Amendment? What if the information has been released into, or generated within, the public domain? Precedent for restrictions Although existing authorities do not directly address the subject, it appears that reasonable restrictions upon the possession and dissemination of catastrophically dangerous information can be constitutionally implemented. In Near v. Minnesota, 283 U.S. 697 (1931), the U.S. Supreme Court created what is known as the “national security” exception to the First Amendment: “No one would question but that a government might prevent . . . the publication of the sailing dates of transports or the number and location of troops.” If restricting such information is constitutionally justifiable, surely the same can be said for information that could cause the destruction of major cities, or perhaps the entire country. There are two major objections to interpreting the national security exception in this fashion. First, there is the futility argument: In the Internet age, no one can control public information. But even imperfect control is better than no control. Of the more than 6 billion people in the world, relatively few are terrorists, and our goal is to keep catastrophically dangerous information away from them, not necessarily from everyone. Moreover, because we are talking about highly detailed, technical information, retrieval is possible. As a federal court recently recognized, those who are denied the opportunity to keep and review information lose much of its value. So if a terrorist organization obtains blueprints for a nuclear weapon, and the FBI manages to seize those blueprints, the terrorist organization will not be able to reconstruct the relevant information from memory. A second objection is that governmental efforts to control catastrophically dangerous information will undermine both political freedom and scientific progress. However, a statute or treaty that defines such information as narrowly as possible, and imposes both a preseizure warrant requirement and expedited post-seizure judicial review, will provide far better protection for civil liberties and scientific progress than a panicked governmental response after, say, a nuclear detonation in Washington. Unless we take reasonable steps to prevent such an event, it is bound to happen soon. In fact, according to John Aristotle Phillips, the former Princeton undergraduate who designed a workable atomic bomb more than 25 years ago, such a catastrophe is long overdue. Benjamin Franklin once said that, “[t]hey that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” I note that Franklin narrowed the coverage of his maxim to only “essential” liberty on the one hand, and “temporary” safety on the other. But even if we read his aphorism as broadly as possible, we must remember that, despite his extraordinary scientific vision, Franklin never foresaw the advent of nerve gas, weaponized anthrax and nuclear weapons. Stewart Harris is the associate dean for academic affairs at the Appalachian School of Law. This is an excerpt from an article to be published next summer in Volume 68 of the University of Pittsburgh Law Review .

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