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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.
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.
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.
... general dissent about the government may transpire between me and my friends in my home. But what if it happens through Gmail or Gchat?
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
My work here is dung.
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.
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
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.
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.
"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.
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.
The good and new comes from no quarter where it is looked for, and is always something different from what is expected.
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.
Three days from now?? Thats tomorrow!! ~Peter Griffin
The real answers are, yes, yes, and no.
The right to privacy is a recent idea (in terms of it being a right guaranteed by the US Constitution).
It's not actually in there, and I think court cases that have interpreted it as being in there have been flat out wrong.
I do think we need the right to privacy (actual privacy, not the bullshit we have now), but we do NOT have it, even as a reserved right (in terms of interpreting anything not in the Constitution).
Privacy rights are so hard to define because we could use them as a justification for literally everything (or at least as a justification against getting prosecuted for said things).
We NEED to define them, and we NEED to get the people involved, NOT the politicians, NOT the lawyers, NOT the corporations, NOT law enforcement goons.
There is no need for a separation of digital privacy rights vs non-digital privacy rights. Such a separation is unnecessary, and merely presents potential loopholes for attacks.
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."
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
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.
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.
The right to privacy is a recent idea (in terms of it being a right guaranteed by the US Constitution). It's not actually in there, and I think court cases that have interpreted it as being in there have been flat out wrong.
Well first of all, I wasn't necessarily talking about the question of whether we in the US have a "right to privacy", but just noting that it's a question to ask when formulating the constitution.
However, I disagree to some extent. If you understand the structure of the US Constitution and the political philosophy of the people who wrote it, then it should be clear that the Constitution does not need to grant citizens a right in order for them to have that right.
The "founding fathers" believed that men essentially had god-given rights that no government should be permitted to deny. The Constitution was not written in order to grant citizens certain rights, but rather as a means of documenting which powers the citizens were granting to the government. In the actual Constitution, those powers are listed explicitly, and though there's room for interpretation of intent and application, the Constitution does not grant the federal government any powers not listed.
The Bill of Rights is also not granting rights, but listing some of the citizens' innate rights that the founders believed important enough to strictly and explicitly forbid the government from impinging on. However, it's not intended to be an exhaustive list of those innate rights that the citizens have (as is made explicit in the 9th and 10th). Furthermore, some of the rights (1st, 3rd, 4th, and 5th) have a definite connotation of allowing citizens to keep secrets and enjoy private communication without interference.
Because of this, I find it very hard to deny that citizens generally have a right to privacy. However, that doesn't specify the specific boundaries of that right. Citizens are specified to have the right to bear arms, but we deny arms to prison inmates, obviously.
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.
Three days from now?? Thats tomorrow!! ~Peter Griffin
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.
You are welcome on my lawn.
And if an "activist" court decides that a black man has the same rights as a white man, or a gay person should have the same rights as anyone else, then it will be so.
Whenever you hear someone use the term "activist" judge, you should understand that their definition of "activist" is "someone who doesn't agree with me".
What's more "activist" than telling a state to stop counting ballots in a Presidential election?
"Originalist" is another bullshit term often used. If the people that like to use the term "originalist" ever had a chance to really understand the "original" intent of the Founding Fathers, they would piss on themselves.
You are welcome on my lawn.
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.
Three days from now?? Thats tomorrow!! ~Peter Griffin
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.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
"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
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...
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.
A loop, by its nature, continues. If that didn't make sense, start reading this sentence again.
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.
Don't forget the courts only interprets the law they absolutely never write them. The only time the courts ever come even remotely close to writing law, is when the law was so poorly written is was open too interpretation. So it is up to the legislature to keep track of the courts and the way the laws are being interpreted and introduce new laws and amend old ones to ensure those laws remain within in the moral intent that formed the original basis of those laws.
It is pretty obvious to anyone that the police, the courts and the government have been playing fast and loose with citizen's digital rights, the extension of a citizen within a electronic networked framework. The time has come when a citizens digital rights should be discussed across a broad forum, their maintained right to privacy, their possession of the digital identity, strict and tight controls to prevent analysis and manipulation of an individual and of course open access to the shared electronic existence.
The internet has broken the strangle hold of mass media on the exchange and formation of societies moral and behavioural consciousness and this needs to be protected and nurtured, not only as a work of society but also protecting the individuals access and participation in it. Society is currently being rewritten as both more liberal as in more open minded and more conservative as in living a more conservative and balanced life both public and private.
Chaos - everything, everywhere, everywhen