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

This is slashdot

[sakdoctor]

We're all legal experts here.

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.

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.