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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.
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.
How about if you can't explain in one sentence what your company actually produces. You will not be protected by patent, copyright or trademark law!
On the Oregon Cost born and raised, On the beach is where I spent most of my days
Why should digital rights be considered any different than non-digital rights?
We're all legal experts here.
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.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
To be clear, the whole idea of "digital" (versus analog) is that a signal is recorded and/or encoded in a numeric representation of an analog signal or message. The advantage of digital is that the fidelity of the digitally encoded data need never be compromised and so exact replication of the analog object (whether sound, video or both) never needs to be lost beyond its original format.
Why should rights be any different based on this fact? It doesn't need to be. The fact that things can be copied and transferred into different formats more easily and without loss of accuracy is not a concern for anyone except content peddlers. This is not a "constitutional" matter. It should be treated no differently than any other copyright law related matter.
The very idea of a "digital difference" is one brought about by fear from the content peddlers and deserves NO special attention.
The Norwegian Government has decided that all information on state-operated web sites should be accessible in the open document formats HTML, PDF or ODF. This means an end to the time when public documents are published in closed formats only.
- Everybody should have equal access to public information. From 2009 on, Norwegian citizens will be able to freely choose which software to use to get access to information from public offices. More competition between suppliers of office programs will be another effect of the government's decision, Minister of Government Administration and Reform Heidi Grande RÃys says.
The Government's decision is as follows:
* HTML will be the primary format for publishing public information on the Internet.
* PDF (PDF 1.4 and later or PDF/A ISO 19005-1) is obligatory when there is a wish to keep a document's original appearance.
* ODF (ISO/IEC 26300) is to be used to publish documents to which the user should be able to make changes after downloading, e.g. public forms to be filled out by the user. This format is also made obligatory.
- For many years, Norway had no specific software policy. This is now changing. Our government has decided that ICT development in the public sector shall be based on open standards. In the future, we won't accept that government bodies are locking users of public information to closed formats, Ms Grande RÃys says.
The new demands will take effect from January 1, 2009 for state bodies. The Ministry of Government Administration and Reform will be working to formulate regulations making this obligatory for municipal organs as well. The Government's aim is that the regulations should take force from January 1, 2009.
The government decision does not prevent state bodies from using other document formats in their communication with the users, provided that the documents also are produced in one of the obligatory formats, ODF or PDF.
Heidi Grande RÃys says that state and municipal organs as well should be able to receive documents in these formats from their users and partners. - This is the first step in standardising document formats. We are also considering formats for document exchange with the public sector and for the exchange of documents within the public sector, Ms Grande RÃys says.
A list of obligatory and recommended standards in the public sector according to the Government's recent decision is to be found in Referansekatalog for IT-standarder i offentlig sektor (Reference catalogue of IT standards in the public sector, Norwegian edition only).
From regjeringen.no
Currently they are considering what standards to use for audio and video; the current policy of Open Standards apply.
The Long Now Foundation
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.
Don't disappoint your bird dog. Go to the range.
Reference here.
An unfair law is ignored - and should be.
Help stamp out iliturcy.
The U.S. document is a much more general framework, extending to about a dozen pages or so. The European one, rejected by France and the Netherlands after ratification by a dozen other nations, runs to almost 500 pages. Yes, that is per language. There is obviously a vast difference in the meaning of the word "Constitution" depending on where you hale from.
"Rights" shouldn't be separated out as to "digital" or otherwise. Things like a right to privacy and access to public (government) information shouldn't be classified as "digital" or not. You also don't want to specify specific file formats or things like that. Something generic, like all public government publications shall be public domain and available in copyright and patent-free electronic formats. Full specifications for those formats should be available likewise.
This gets you around the obscenity that the U.S. does with things like State building and electrical codes, which are copyright and only available from specific vendors at ridiculous prices in many States.
Learning HOW to think is more important than learning WHAT to think.
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.
Hope is the currency of fools
What you really need is a clause that says any lawmaker or elected official or judge or monarch (or whoever) that even THINKS about violating the letter of the constitution be severely punished. They all you need is reasonable laws in general. With the right kind it should be unnecessary to single out the digital domain as compared to any other.
Oh, and restrict copyrights to 14 or 20 years IN TOTAL and make it unconstitutional to even THINK about extending it. Accepting political donations for any reason whatsoever from a stakeholder who stands to benefit from any official government debate, decision or policy should be SEVERELY punished.
I would like to see if you could pull off an interesting idea. See if you can get the Nepal government to allow the citizens to use whatever level of encryption they see fit. I believe my government does not allow an encryption level so high that they can never hope to crack it. It's strange, companies are allowed to implement DRM at whatever level they see fit yet I'm restricted, especially if it might be exported.
Take a look at this and see if you can get your country grouped into level 1 at the bottom of the page. Unrestricted levels of encryption would be a nice liberty to enjoy.
My work here is dung.
digital rights and freedoms logically flow from that
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
Amendment I
...That should about cover it. Ho modeled VietNam's Constitution on the USA's, there's no reason Nepal can't borrow a bit.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
46. The Hobo smiles, his eyes glaze over, and he burps. "Beware the man who has lived longer than the Wasteland."
"Digital rights" provisions may actually enter the constitution, and if they do, that's great. If they don't, the legislature can approximate their effect.
It's far more important to put provisions in the constitution that will slow the onset of corruption. Corruption rots a state from the inside out; no matter how well-protected rights are in a constitution, those protections are worthless if the government becomes an entity that serves the few, not the many. Keep in mind that the U.S.S.R., in its constitution, guaranteed freedom of expression. That didn't work out so well. The United States guarantees freedom from unreasonable search and seizure, yet we have civil forfeiture. The constitution only means something when there is some mechanism to hold accountable those who violate it.
The problem with that is that many people still equate computers and paper as separate mediums. The rules should not be separate for digital and paper, but any such rules should elaborate with well crafted language something to the effect of "this includes digital media."
Also, Another post further up insists that all government information be available in free and open standards of formatting. This is one rule you can't express in terms of paper, because there is no equivalent problem in paper media. You want to make sure all digital documentation is readable in the next 50-100 years, so an open published standard, published in an open format, can be reconstructed by any one so inclined. There are going to be some exceptions like that you might want to include.
"All great wisdom is contained in .signature files"
(Not a student of the law or constitution)
I'm not sure why you want to add anything as specific as file sharing or platform neutrality to a document like a constitution, as it will just turn into an absolute nightmare of trying to enumerate the rights and privileges of your citizens.
A constitution should be a general statement of principles and (just as importantly) an outline of how your citizens elect to be governed. I think what you're trying to do is a good thing, but you might be better off trying to stick to general concepts. If you MUST enumerate the most basic and important liberties that your people retain, be as broad as possible. When you get specific, even with the important ones, people (politicians, certain groups, etc) are always gnashing their teeth to try to find "loopholes," in a violation of the very spirit of the document. Just look at the line "the right of the people to keep and bear arms shall not be infringed" from the American constitution. It's hard to get more blatant than that, but it has still brought us a lot of headaches from people who feel the need to interpret.
I would suggest looking to America's constitution, at the very least, for examples of broad general principles. Some of the very best (IMO) parts of our constitution are the very broadest (Amendment I, IV, VI, IX, X). We may have fallen on hard times recently, but it's still a hallowed document and there are some excellent ideas to be found there. The current state of affairs isn't a fault of the constitution, but rather as a direct result of fear / war mongering.
Anytime anyone uses some kind of DRM, require them to provide the government with a copy of the key and a release date - when the copyright ends. Charge them a small yearly fee for key storage. If they stop paying the fee (i.e. they go bankrupt and no one takes over the fee payment) or the copyright protection date ends, the keys become public property, available for free.
excitingthingstodo.blogspot.com
Set aside rights of way for infrastructure. Make those rights of way available as franchises to all infrastructure providers. That way, it will be harder for one provider to behave like a dictatorial monopoly.
Don't let the infrastructure providers (the people who own the cables) get into the content business.
Ability to access human information networks must be one of the human rights.
This access has to be untampered, unrestricted, non-censored and privacy has to be respected.
US/EU constitutional amendment should be issued to support this cause.
Also net neutrality has to be of utmost importance. Preventing corporate influence and fair competition in the global networks. Constitutional amendment should cover this also.
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".
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Do people have a right to access the Internet? Because that right, if it exists, is not enshrined in the first amendment.
Many argue it should be a right; how effective can you be in this modern world without access to the wealth of information the Internet puts at your fingertips? If this is a right, does this mean the government has a responsibility to ensure access is available? There are plenty of northern communities where access is not available in Canada. There are many public access points in most larger Canadian cities, but these access points often close at 5:00pm, which makes them practically impossible to use for many people.
Do people have a right to publish software, and a right to mathematics? You'd think that, since software is just text written in an obscure language and mathematics are just ideas you ought to be able to express in English, freedom of speech should cover it. However in the US, it is illegal to publish software which would circumvent a digital lock, thanks to the DMCA. Some would argue the DMCA is unconstitutional in this regard, however the DMCA has been around for a long time. If this right were explicit, would that be the case?
There are also many places in software consumer rights where the US and Canada fail epically; if I buy a piece of software in Canada and it doesn't work, that's tough, I can't return it. Why is that? (Although perhaps the right to return software is a bit outside the scope of a constitution).
I think that's an equivalent question. Both are imaginary/purely concepts.
"Thanks for all the money you paid to us. We've used it to buy off ISO among other things" -Microsoft
The DMCA, and a host of other laws, blatantly violate the ideas of the enlightenment upon which the constitution was based. That the DMCA stands, far from demonstrating the nuances of our constitution, instead merely shows that generation after generation of negligence and corruption will lead to the rot of even the best-laid institution.
I absolutely agree with this principle. However "digital rights" are a useful thing to think about when composing your statements of fundamental rights. Sometimes technology changes things in a way that wasn't predicted, which may cause the particular wording of your constitution to not really cover issues that it should.
For example, the 4th Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This wording is quite specific to physical objects, and the extensions of these rights (or not) to data and communications has been very patchy, and often based on whichever analogy is most convenient to those in power. The existence and increasing scope of supposedly legal warrantless wiretapping is a strong reminder of this.
There are absolutely better ways to word this to be more technology agnostic. It is important when developing this wording to enumerate all the specific cases you can think of, and then as you write the generic wording go back and make sure that it at least covers the currently known and easily foreseeable cases.
How about we start by defining what "digital rights" are exactly? I'm still not sure what those really are. If the definition is something like "As a consumer I have the right to do what I want with goods/services I have legally purchased, whether digital or otherwise" then I'm all on board.
On the other hand, if digital rights are all about a publisher telling me that the product I have spent my money on isn't really mine, that I can't reproduce the contents of digital media in my garage with the door open, or that I can only install the digital instructions for a game I have purchased three times or on certain computers, well, I believe I have the right to tell those producers to stuff it, either digitally or mechanically, or through some other analog means (like with my middle finger.)
Python: 'And then suddenly you have a language which says "we're all stuck with whatever the whiniest coder wants".'
Why can't you return purchased software? You were when software sales to consumers started out, in line 1978 for CP/M. But it is really, really easy to install a product and then return the packaging to the store saying you don't like it. You win, you got the software. The store loses, they have a "return" or an "open box" item to either return to the publisher or sell at a discount.
The publisher loses, loses, loses because it is now obvious that you don't have to pay to use their software.
Returns were dropped from just about everywhere except the geekier tech-favoring computer stores. Then when people figured out they could return software there, that got abused also.
If people didn't believe piracy was their right, or at least it was their right to have stuff for free you could return software like you can return any other item. But everyone wants stuff for free, so you might as well just download it. You do know trying to buy software makes you somewhat of an oddball, right?
Based on the troubles we have been having in the United States (and a bit of knowledge of history), I would make these suggestions:
(1) Original written works (stories, novels, magazine articles, poems, music, and software are properly governed by copyrights, not patents. Ever. [This eliminates the innovation-stifling patent wars we have been having over stupid things that should never have been granted patents in the first place.]
(2) Copyright must be claimed by the creator of the work BEFORE a violation occurs, or it is not enforceable. (E.g., a magazine may have a small section in which they claim copyright of the contents.) Possible exceptions here might be professional photographers and artists, for whom the copyright to a work would be assumed once it is created. [This eliminates lots of stupid fights over a couple of sentences that nobody cares about except the creator anyway. If a work is worth copyrighting, then claim a copyright. Otherwise, you lose the right to hassle other people about it.] A claim to a copyright is not the same as a registration. A copyright must be registered in order to pursue violations, but registration can occur after the fact. A copyright claim is something along this line: Copyright © 2009 My Name
(3) Copyright to an original work lasts for 20 years, after which the work becomes public domain. [This restores the original intent of copyright, which was to foster the public good by giving incentives to create original works. Modern U.S. and international copyright law gives a creator right to the work for life and even then some... which does not leave much for the "public good".]
(4) Patents should have the usual protections against prior art and obviousness. A patent must be for a device or object that does something new. Mere combinations of existing objects are not patentable, unless the combination produces a result that is other than and in addition to the expected result of using each component.
(5) A "process", by which I mean a sequence of physical operations intended to produce a particular result, is patentable only if the process results in a unique product, or if the process itself is unique in a way that would not be obvious to current practitioners of the relevant science or craft.
(6) Business methods, in general, shall not be patentable. A description of business methods may be copyrightable or protected as a trade secret, but patents are not appropriate.
I'd take that phrase of yours and apply it as broadly as possible. To the greatest extent possible make sure that all laws are written so that they apply equally and explicitly to digital and otherwise. There is nothing fundamental about digital that requires different rights, protections, etc. Given the chance to segregate digital from other concerns, many politicians and law enforcement people will treat them differently even when it's not warranted. Some times this is through ignorance, some times pleading ignorance as an excuse for foot dragging, etc. Likewise, they can seek much greater damages for digital copies than for analog or hard copies of the same work or otherwise prosecute some things differently when the fundamental infraction doesn't differ. Rights and laws are too important to be tied to any technology, stone tablets or data clouds.
"I may be synthetic, but I'm not stupid." -- Bishop 341-B
I'm just guessing here: you put a printed Cyrillic document through English OCR, right?
"They were pure niggers." – Noam Chomsky
I think a "right to teach" and a "right to learn" is a nice way of stating in human-friendly terms the right to perform write-operations and read-operation without limitation.
Article 1, Section 8:
"The Congress shall have power... To establish post offices and post roads;"
Roads are totally Constitutional, especially if any mail is carried over them. Other uses can be considered to be incidental.
Make sure that there's a provision that any official who violates the new Constitution in any way is guilty of treason, and shall be executed.
Go back to the original bargain at the heart of copyright. The government grants you a monopoly on the profit from the work for a limited time, and you agree to not hide the work.
A key here is _limited_ time. That definition has been stretched past the point of credibility these days. It should be something like 5 years, instead of lifetime plus 75. Let's face it, the bulk of the profits on a work will come in those first few years. After that, let the public have it.
The other key would be that any work that enjoys the protections of copyright cannot have DRM. None. If you want the government to step in and protect the work, you have to release it free and clear. If you want to try to protect it on your own, that's fine. But DRM = no copyright.
"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.
"To the future or to the past, to a time when thought is free" ~ Nineteen Eighty-Four
Something that forces companies holding private data to think about security (both physical and electronic). Something that would force companies to stop making web apps with security holes wide enough to drive a 747 through. Something that would force companies to actually give a stuff about phishing. Something that would force companies to put stronger locks on the rooms holding all those personal files they have on you so that people cant steal those. Etc.
The Association for Progressive Communications (APC) produced their Internet Rights Charter to help provide a basis for taking the UN's Declaration of Human Rights into the online world. It's amazing the number of countries that signed onto the Declaration of Human Rights but think nothing of censoring and snooping on people on-line.
Worth checking out and contacting APC in addition to EFF, etc.
I left my body to science, but I'm afraid they've turned it down...
The Constitution is not the place for that.
A Constitution is a meta-law, the law from which all other laws are derived. In it, you put the general, broad principles that are the norm of your society.
The Constitution should not be too specific in the means of effecting rights, as those means will change over time.
Suppose that you did the same exercise 20 years ago, and you put in the constitution “the right to freely gopher on the Internet”. That would not prevent the government from implementing rigorous web censorship, because the technology changed.
See if you can get the Nepal government to allow the citizens to use whatever level of encryption they see fit.
+1 insightful
The right to use encryption of any sort should be explicitly mentioned and permitted in the constitution. The right to encrypt one's personal data is fundamental to the right to privacy. Being forced to give up encryption keys should also be mentioned and protected in the same manner as self-incrimination (such as in the US 5th amendment).
The reason the right to encrypt is vital to place in the constitution is that aggressive or controlling/totalitarian governments (and there are varying shades of this) like to have a lot of control over their citizens. Thus, when they come into power, they can become very fearful of encryption amongst their citizens and erode a real right to free speech under various guises (such as monitoring all communications and banning encryption amongst other things).
Unity in Diversity
And explicitly state the your constitution only gives the government the powers enumerated in the document, and the people have all the rest of the powers.
This is my sig.
I am one of those beleivers that the internet should have no laws. It should simply be a network of computers. Some companies may try to do business using it- but they do so at their own risk. There should be no governance of the transfer of information, harmful or good.
;)
no, i'm not Idealistic- really
The constitution should really do nothing more than restrict the powers of government to a well defined, minimum set.
Please see wikipedia articles on negative liberties vs. positive liberties (sometimes also called negative/positive "rights").
Negative liberties make sense to put into a national constitution. Positive liberties are a recipie for disaster and servitude.
So to the extent that you feel that a "right to privacy" should exist, in terms of how to express it in the constitution, it would place clear boundaries and limits on what the government can do to violate the intrinsic privacy of citizens. This may manifest itself along the lines of proposed data retention or national traffic filteirng laws being found unconstitutional, assuming you have created a good consitution.
A more tricky angle to look at is what involvement, if any, the government would have when there is a privacy "dispute" between two non-government entities. Would someone's "right to privacy", as you see it, make paparazzi illegal? Would someone's right to privacy make it illegal for e-commerce websites to have web logs? Cookies? credit card info? Musn't individuals retain their privacy by not engaging in these activities, and isn't that a reasonable standard?
At it's core, a government being legally barred from violating the "privacy" of its citizens is unheard of anywhere in the world. Governments require you to have and present identification. What could be a more obvious and fundamental violation of privacy? In this context what does it mean for the government to even seriously consider some murky "right" to privacy?
I hope you are able to write an excellent constitution. The US may be shopping for a new one soon, as it hasn't really been using the one it has inherited.
My opinions are my own, and do not necessarily represent those of my employer.
Issues to consider
1) Copying bits is almost automatic operation with current technology. Any legislation that makes restrictions on copying is outdated. If you place limits of what can be copied, you will have millions of people that can be sued on a whim of the copyright owners.
2) On the other hand, creating digital works requires considerable effort. This effort should be rewarded and encouraged. How to do this is open issue which will evolve over time.
3) But there will be large collections of digital works available because of access is not restricted and availability of copies is very different from availability physical goods.
4) But once digital work has been created, digital copying should be encouraged to maximize benefit of technology to the society. (worst kind of digital work is something noone uses)
5) Need to be careful with relying on old technology solutions to new digital problems. For example money or cash is already outdated because it takes more effort to move money than move digital works. Services requiring money transfer have clear disadvantage over services which work only in digital domain. Any solution that ties digital copies to manual movement of cash is outdated.
6) Open source and free software movements have solved the problem copies using a licensing scheme that allows copying, but they create additional problem that people work on their free time receiving no compensation for their time that is used to create digital works. Compensation for creating digital works comes in form of other digital works and is not suitable for buying food for example. (this is slashdot so this was necessary)
7) Digital behaviour of people changes very quickly. Behaviour forbidden yesturday will be necessary survival behaviour tomorrow in the digital world. Make sure you update your system regularly and measure the effect of any changes.
8) There are very small number of activities in digital world that should be controlled or restricted by law. Most activities involving computers are harmless and causes no or only small damage. (including copying of copyrighted works)
9) When you decide to restrict some activity, make sure it is not something used by thousands of people for legimate purposes. If you create hundred thousand criminals from ordinary people by changing the law, something is wrong. (seems that the US copyright people did just that, criminalise huge part of the population and allow punishing them.)
I would be extremely wary about including any "positive" rights in a constitution. The temptation is very strong for people to start including all kinds of things they think of as "basic rights", but without any reasonable way to accommodate that.
See, it's one thing to argue that the government may not restrict the press; it's another to argue that the government must supply them with the ink. Of course, denying them the ink is a violation of even the first construction. Similarly, it's one thing to prohibit the government from making any barriers or prohibitions regarding internet access; it's another to say that the government must provide it to you--which is another way of saying your fellow people. Because if you have a right to a house, that means that (a) your fellow citizens have to pay for it if you don't, and (b) somebody has to build it. If you have a right to a cup of coffee in the morning (absurd, but just for discussion), it means that somebody has to grow the beans, and someone has to make the coffee, and someone has to pay for all that--and since it's a government-guaranteed right, the government will use force to make them do so if they refuse.
IMO, protections of rights should fall out starting from the most basic of things. And I would make declarations of such rights explicitly un-repealable, even if the rest of the constitution might be. Put them in the clearest, simplest language that you can, and avoid any possibly confusing phrases like the militia clause. Include justification and reasoning, if you want, but be careful that you don't limit yourself.
-Right to life. Government can't take it from you, and others can't either. Also, should include the means to defend that right.
-Right to property and the fruits of one's labor. No arbitrary restrictions on what I own, no seizure without due process, etc.
-Right to liberty. Freedom of speech and expression, religion, association, trade, etc. No imprisonment without due process, no slavery or conscription, etc.
-Right to privacy. Protection against search without due process, protection of one's records, prohibition against quartering of troops, etc.
As others have said, clearly delineate the government's powers, and provide for sanction of those who try to violate it.
The meek may inherit the earth, but the strong shall take the stars.
Ask China - they're the ones pulling the Nepalese government's strings.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
The core of the problem is that for some reason "digital" means "different."
Rights are rights, and should apply equally whether the medium is digital or analog. Think about it.
So you could copy an analog tape? But copying a DVD is a crime?
You can call someone out on their misdeeds on a town meeting, and (if wrong) be subject to due process? If you post the same on your blog or an internet forum, no due process.
The notion that free speech, fair use, freedom of expression are segregated between digital and analog is odious, and is used by the enemies of all freedoms to further their goals. Digitizing some sort of bill of rights cowtows as much to the evildoers, nanny states, and control freaks of the world as the honoring of sharia in western legal systems does to islamic extremists. It's sad to see.
- - - Non Caffeine Drink or Drink Error
Turn the information issue on its ear and think of it in a new way. Think about the rights of information and communication. Anthropomorphise it and give it desires. Knowledge wants to be free, it wants to be spread. It wants to move unimpeded throughout your citizenry and live from generation to generation in live documents and not dusty archives restricted by lawyers. Basic knowledge should be unpatentable. Complex knowledge should have a limited patent so as to promote innovation. Same with any kind of restriction (copyright, etc). After a short period all knowledge should become public domain.
In fact, is a blog an assembly?
No, it's a publication.
Don't disappoint your bird dog. Go to the range.
I agree. Some thought the Bill of Rights (amendments 1 through 10) added to the US Constitution was unnecessary because the main body already took care of the issues addressed by those amendments. Of course we don't want such an important document cluttered up with overly specific and unnecessary clauses. But it's pretty well accepted that the Bill of Rights was a good idea. It has been necessary to be clear about the important issues covered in it. If it hadn't been clear, there would have been even more arguing about whether the authors really meant something, often by those who know very well what was meant, but who think they have something to gain by trying to confuse the issue.
I think it's a good idea to have explicit language saying that "digital" speech is a form of speech. Any laws covering information should explicitly say that it applies regardless of the media. I've had ISP's try to pull the old stunt of saying that their customers have to give them 30 days "written" notice to quit, and when I did so via email from my account with them they tried to say that wasn't written notice.
There are many reasons Intellectual Property law is such a mess. The entire issue should be avoided by not having IP law as we know it in the US. No monopolies! No copyright or patent law at all. Trademarks are fine, just as long as they can only serve as trademarks and can't be construed into copyright or patent in all but name. Have many digital registration/notary services, to prevent plagiarism and any issues over that. Have many groups competing with one another to set as fair a valuation as possible on ideas and works of art and science. Collect monies in a variety of ways, perhaps taxes and perhaps through fees levied by professional societies such as ASCAP (but be careful to keep a tight rein on such). And then distribute accordingly.
And finally, sunsets as a general principle. Like copyright was supposed to be in the US, most legislation should be for a limited time. Unless the lawmaking body holds a separate vote to exclude it, all legislation should have an addendum that they will eventually expire. We have so much cruft in the US, and there's always some special interest willing to defend their little benefit beyond all reason. We still have such things as a special excise tax on land lines that was intended as a temporary measure to finance a war in 1898, and agricultural subsidies (sugar and peanuts I think) meant to boost production of critical crops during WW2. We have all these toll roads that were supposed to become free, but somehow for most that hasn't happened.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
Not sure if you'd heard of these guys:
http://internetrightsandprinciples.org/
They used to be the Internet Bill of Rights group but changed their name recently.
While many in this conversation have said we don't need to separate online/computer rights from general rights, this seems to only be the case in a "perfect world." Sadly, all too many countries pay lip service to the UN Declaration of Human Rights (if they bother at all) and even supposedly democratic & free countries butcher our rights in the online/communications world (Echelon, Australia's proposed Internet Filter, data retention acts in the UK & Korea, etc).
Between the efforts of the IRPDC and the Association for Progressive Communications (with their Internet Rights Charter as I mentioned previously in this discussion) there is work being done to raise awareness of our digital rights, not least of which is knowledge that we even have them let alone that they're being ripped from us.
I left my body to science, but I'm afraid they've turned it down...