How Should a Constitution Protect Digital Rights? 151
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.
As a Member of the Unwash Masses (Score:2, Interesting)
Take a look at this and see if you can get your country grouped into level 1 [rsa.com] at the bottom of the page. Unrestricted levels of encryption would be a nice liberty to enjoy.
Corruption (Score:3, Interesting)
"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.
Re:why? (Score:4, Interesting)
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.
Re:why? (Score:3, Interesting)
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.
Re:why? (Score:4, Interesting)
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.
APC Internet Rights Charter (Score:3, Interesting)
The Association for Progressive Communications (APC) produced their Internet Rights Charter [apc.org] 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.
Re:why? (Score:3, Interesting)
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.