How Should a Constitution Protect Digital Rights?

Bibek Paudel writes "Nepal's Constituent Assembly is drafting a new constitution for the country. We (FOSS Nepal) are interacting with various committees of the Assembly regarding the issues to be included in the new constitution. In particular, the 'Fundamental Rights Determination Committee' is seeking our suggestions in the form of a written document so that they can discuss it in their meeting next week. We have informed them, informally, of our concerns for addressing digital liberties and ensuring them as fundamental rights in the constitution. We'd also like to see the rights to privacy, anonymity, and access to public information regardless of the technology (platforms/software). Whether or not our suggestions will be incorporated depends on public hearings and voting in the assembly later, but the document we submit will be archived for use as reference material in the future when amendments in the constitution will be discussed or new laws will be prepared. How are online rights handled in your country? How would you want to change it?" Read on for more about Bibek's situation. He continues,
Here is an email I wrote to FOSS Nepal mailing list. I wanted to post a similar message to some international mailing lists (like the FSF, EFF) but I know only of announcement mailing lists of that kind. If you have something to suggest, please do. We're committed to doing everything we can to make sure that in the future Nepal becomes a country where digital liberties are fully respected. It's my personal dream to make our constitution a model for all other developing (or otherwise) countries as far as digital liberties are concerned.

There are many issues on which your suggestions would be valuable. If you've interesting examples from history, they'd help too. If you're a legal expert, please mention the legal hassles our issues could generate. If you're from the FSF, the EFF etc, please provide your insights. If you're just another citizen like me, how would you like your government to address file sharing, privacy, anonymity, platform neutrality, open standards, etc? This Slashdot discussion itself would serve as a reference to our document.

Comments

why?

[Anonymous Coward]

Why should digital rights be considered any different than non-digital rights?

Re:why?

[eldavojohn]

Why should digital rights be considered any different than non-digital rights?

Because I just went down the street to the Microcenter and purchased a DVD for $20 cash.

No way to track that (and no, no one's stalking me).

However, I just logged into Amazon.com and bought the same DVD on my credit card. My personal computer may hold this data now. My ISP may know this now. Amazon's servers most definitely have all my information. The government might even have logs of this traffic!

That is why this is a special case. And trust me, it does not end there ... general dissent about the government may transpire between me and my friends in my home. But what if it happens through Gmail or Gchat?

Re:why?

[nine-times]

But really, those things still don't make digital rights a special case. The real questions are, do you have freedom of speech? Freedom of assembly? What about a right to privacy? If you can answer those questions, those rights should be protected regardless of the technology.

The particulars about how those rights are protected will have to change over time, as the culture and technology change. Those can be individual laws and court cases, but probably shouldn't be in a constitution.

Re:why?

[sam_handelman]

One of my sibling posters makes a valid point - that new technologies enable the authorities to infringe on our rights in ways that were impossible in prior generations. That is exactly why those rights should *not* be layed out in specific, technological terms (printing presses, "digital" communications, etc.)

  Instead, the constitution should give general rights, to be interpreted as broadly as possible in new circumstances when new circumstances arise.

  For example:
* The right to communicate with anyone, on any topic, at any time, by any means,
  - without interference by the government, private parties employed by the government, or parties providing services of utility in communication, except at the request of the recipient of the communication,
  - without monitering or systematic record-keeping by the same, except under full transparency with due process of law,

  And so forth.

Re:why?

[donaggie03]

But really, those things still don't make digital rights a special case. The real questions are, do you have freedom of speech? Freedom of assembly? What about a right to privacy? If you can answer those questions, those rights should be protected regardless of the technology.

The particulars about how those rights are protected will have to change over time, as the culture and technology change. Those can be individual laws and court cases, but probably shouldn't be in a constitution.

Your argument makes the assumption that rights are considered the same whether they are digital or otherwise. This isn't necessarily true. There is absolutely nothing that would stop an activist court from deciding that some right isn't actually protected simply because it's digital. I'll even give you an example. Consider the 4th amendment, which outlines the right of citizens to be free against unreasonable searches and seizures. Are imaginary papers protected under the 4th amendment? Can you not imagine a world where it is decided that digital files are considered immune from this amendment? At the very least, I think it could be helpful to outline and spell out the simple ideas that digital property is real property, and that rights do apply even within the digital domain.

Re:why?

[donaggie03]

What you say is logically and factually true, but have you not been paying attention to the court system? If an activist court decides that a tail is a leg, then within the jurisdiction of that court, a tail is most definitely a leg, and any attempt to prove otherwise would be shot down by precedent. Courts can determine if a terrorist is a terrorist or not, if a certain type of weapon applies to the second amendment, and what the definition of "search and seizure" is. Once the courts decide something, it is a lot more difficult to get that overturned than it would be to have it explicitly spelled out from the beginning.

Re:why?

[PopeRatzo]

Can you not imagine a world where it is decided that digital files are considered immune from this amendment?

Of course. We are already in a country where a frightened president and his congress could pass a set of law which makes the Fourth Amendment pretty much of a joke, and then they call it a "Patriot Act".

If you have a system where the rich can buy political power, and corporations are given the rights of persons, and money is considered to be the same as speech, then no matter what your constitution says, you're screwed.

We've got a very well-planned constitution here in the US, but at least five out of the last six presidents have pretty much wiped their bums with it.

Re:why?

[donaggie03]

Negative. When I use the word "activist" I use the actual dictionary definition, not some made up phrase that tries to discount someone's argument. Nice try though. Activism is defined on dictionary.com as " the doctrine or practice of vigorous action or involvement as a means of achieving political or other goals, sometimes by demonstrations, protests, etc." and on wikipedia as "intentional action to bring about social change.." Those are the definitions I use, thanks. You then give examples of how activist judges basically granted blacks and gays as anyone else and later you bring up the presidential ballot counting. I'm not sure if you are trying to say you are for or against activism on the bench, but I think all these examples prove my point. Imagine how different things would have turned out if the constitution explicitly stated that humans of all races, genders, or sexual orientations were to be treated equally. It is a lot harder to trample on rights if they are explicit. That's all I'm saying. I don't hear the word "originalist" being used EVER but I know what you are saying, and I completely agree.

Re:why?

[Atlantis-Rising]

It's really no easier, actually. The second amendment is irrelevant now and always has been irrelevant.

I point you toward a comparative legal analysis of the UK, the USA, and Canada, which have three different but similar systems of constitutional law and rights. The differences between the three systems are limited to a difference in political culture.

Let me repeat that. Despite having enormously different legal constitutional guarantees of rights, the practical effect of these legal constitutional documents is exactly zero.

Re:why?

[Nikker]

It was never about the paper it was about the words on the paper. All of this unreasonable search and seizure is based on protecting your words and belongings, why we continue debate this based on the medium is beyond me.

Re:why?

[nine-times]

The fact is that the founding fathers had just defeated the former lawful government of their area using the best and latest technology available to them. Long Rifles were cutting edge tech, they were not available to the lawful army in mass, and they were used to great advantage by the rebels whenever possible.

Yeah, one well-supported interpretation of the Bill of Rights is essentially as a statement of, "These are the things that were invaluable in the revolution we just won. In order to allow us (or later generations) to rebel against their own government, should that government become bad, let's make sure we preserve those tools that are useful for a revolution." During the Revolutionary War, the British tried to deny Americans the right to free speech and freedom of assembly. They stationed soldiers in people's homes, searched houses, and made it illegal in some instances to have guns. If the Americans were caught, they weren't given fair trials, etc.

So as odd as it seems to some people, the point of the Bill of Rights is at least partially to allow us to overthrow the government. The right to bear arms, contrary to popular opinion, is not for the sake of hunters. It even says right in the second amendment that the purpose is to have common people capable of military action.

Now you can still argue that the thought behind it doesn't hold up very well. A private citizen with a long rifle is one thing, but a private citizen with a stealth bomber? However you interpret the second amendment, private citizens generally aren't going to have all the coolest state of the art military gear. But yes, the intent at the time was most definitely to allow people to arm themselves for military action.

Very simple

[Anonymous Brave Guy]

There should be no such thing as separate "digital rights". Computers are just tools, and nowhere near important enough to be a special case in a national constitution.

Of course, many rights and freedoms that we might like to see preserved on-line in the Internet age are worth preserving in general: freedom of belief, freedom of association, freedom of expression, the right to a private life, and so on. But it doesn't matter in the slightest whether the infringement of such rights and freedoms is done via digital means or otherwise.

Re:Very simple

[nine-times]

Well what if we put it another way? You're talking about basic human rights issues, and I think you're right to indicate that those shouldn't change (at least not in an essential way) because we're using new tools. On the other hand, some things have changed in the digital/internet age, and that may warrant some consideration.

For example, in the US Constitution, the federal government isn't given any particular powers regarding the Internet (obviously). It's technically not even given the right to have an interstate highways system (obviously). However, the federal government is given the right to create roads for the purpose of delivering mail. So in this new constitution, what role do you want to assign the government in terms of creating/maintaining/regulating communications infrastructure?

The US Constitution also gives the federal government the power to grant copyrights. Given the current technological age, if you were writing the Constitution today, would you have included that? Would you have been more specific?

Should the government be required by the constitution to disseminate any particular information in any particular way? Just a random example: you could make it required that any laws be posted on the Internet at least 5 days before any vote. What format do you want it in?

What kinds of records may the government keep on the citizenry? What kinds of databases and compilations of information can they reference, and under what circumstances? Would it make sense to have some time frame after which records expire? Is there some time frame for when even the most secure documents become public?

There are lots of decisions that have different ramifications today than they did 20 years ago. It's not a dumb question to ask.

Rights are Rights.

[ScentCone]

I don't see how - from a constitutional perspective - it's especially important to enumerate (or even mention) "digital" or "online" rights in any form. Stick with freedoms of speech, privacy, assembly, and commerce, and let the legislative bodies worry about whatever particular media type or communication method happens to be popular that month... and then let the courts decide if challenges to the legislature's actions are in keeping with the fundamentals. Constitutions are about what the government cannot do, and getting granular (to the point of making a distinction between cell phones and land lines, or between postal mail and e-mail, or between online banking and walk-up banking) is a bad fit in a document like that.

Start with Thomas Macaulay

[symbolset]

Reference here.

An unfair law is ignored - and should be.

There's no such thing as Digital Rights

[xednieht]

There's only human rights. Separate the medium/media from the rights. By example the postal mail and digital mail. Constitutional rights in the United States were lost to the medium. Simply because the medium changed from paper to digital the tyrants in Washington DC felt they were entitled to read our mail. And remember a true Democracy does not rely on a Department of Homeland Stupidity.

Re:But digital rights deserve elaboration

[ring-eldest]

I agree with the GP, there is no need to specify that you have free speech online as well as in general.

If it MUST be done put it in a separate amendment similar to our Ninth. " The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." + "or restrict these rights to any particular venue, medium, technology or to any other specific means."

Re:The notion of "Digital Rights" is ridiculous

[QuoteMstr]

IMHO, it's far better to spell out explicit restrictions directly in the constitution so that potential violations are blatant. Negative restrictions are useful because if the constitution claims "the government can do X", the government will invariably try to do Y and claim Y is a type of X. You breed monsters like the Commerce Clause

...in Katzenbach v. McClung (1964) the Court ruled that the federal government could regulate Ollie's Barbecue, which served mostly local clientele but sold food that had previously moved across state lines; and in Daniel v. Paul (1969), the Court ruled that the federal government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state.

and the "for limited times" part of the Copyright Clause.

It's much harder for the government to do Y when Y is explicitly listed as a thing the government may not do. In theory, the first amendment to the United States constitution is redundant. The Ninth and Tenth Amendments should provide all the necessary protection because they essentially say "the government is permitted to do nothing except what we've listed". Nevertheless, without the explicit guarantees of freedom of expression and of the press, those rights would have been trampled a long time ago.

Take suggestions from real life

[Opportunist]

Digital rights should be not much different from the rights you (should) enjoy in your real life. Basically they are

protection from search and seizure
protection of privacy
protection from undue profiling

The last bit may not be an issue in reality, it is in the "information age" and the "information society", though. Computers are great at storing, filtering and cross linking data.

In detail, this would mean that the search of personal belongings stretch to your personal data that you store on your PCs. I.e. searching your PC should be protected as searching of your worldly possessions is. Intercepting and examining your traffic should follow the same rules that intercepting and examining your other correspondence follows. Collecting data should be limited to the necessary minimum. Cross referencing data should be defined and subject to review.

Most of all, demand a system of auditing and surveillance of those that may (under special circumstances, to protect the law) overstep those boundaries. I.e., a search of your computer can be conducted without your knowledge (unlike, say, a search of your home which you would most likely notice), so demand a system that someone searched has to be informed afterwards that he was searched, and why. Either the law enforcement found what they were looking for (and thus have every right to do the search in the first place), or they have to explain why they did it. Without, the temptation to "just make sure", on a "hunch" is way too big.

Also, a penalty system for organisations collecting data has to be put into place that ensure they don't take securing private data of others lightly. So far, the penalties I know of are something that's factored in as part of the risk management expenses. I would not deem it overblown to revoke the right to store personal data from repeat offenders. Yes, that means close your business. If you're unfit to secure your customer data, you're unfit to do business in a digital information-heavy world.

The main portion here is "watching the watchers". And the "storers".

The Right To Possess Digital Information

[Brian Ribbon]

"No person shall be convicted of any criminal or civil offence solely on the basis of the data contained within any digital storage media within their possession and the recording of any of their network addresses upon any other digital storage medium"

I'll be honest about my motivation for making this suggestion; I am appalled by the fact that people are frequently imprisoned for possessing/accessing child pornography which they did not produce, purchase, trade, or solicit. The argument that viewing child pornography creates an increased demand was formulated in a pre-internet era when people who were determined to view child pornography had to either produce, purchase, trade, or otherwise solicit the material in order to view it. In those cases - and in cases where pornography was abusive rather than just offensive to the sensibilites of the time - I believe that prosecution was justified. In the era of the internet, however, people are able to access child pornography without encouraging production, yet many of those people are traced through access logs, then arrested, convicted and imprisoned.

The suggested clause would not prevent the prosecution of people for purchasing child pornography, as card details would be recorded; these details could be coupled with data from the hard drive to secure a conviction. Anyone who trades child pornography could presumably be convicted, as evidence of trading should be available on another person's property. Anyone who solicits child pornography could likely be caught through their dealings with those who produced or distributed such images.

The suggested clause would also stifle attempts to introduce a local equivalent of MediaSentry et al, as such organisations rely heavily on evidence from users' computers and on the logging of the IP addresses of people who download copyrighted media.

Such a clause would also hinder the introduction of victimless criminal offences which are falsely alleged to discourage the commission of harmful crimes; the British and American legislators have begun to introduce such laws to bypass allegations of creating a police state obsessed with the concept of pre-crime. In the UK, for example, it is illegal for a person to possess information which could be useful to terrorists, on the absurd basis that anyone who wishes to view such material intends to engage in terrorist behaviour.

The reality is that the excuses provided for intrusion into peoples' digital lives are generally an excuse for the state to investigate the private lives of anyone who is presumed to wish to challenge the state, or anyone who may offend the electorate which legislators are forced to represent in order to maintain their seats.