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How Should a Constitution Protect Digital Rights?

Soulskill posted more than 4 years ago | from the digital-guns-and-bombs-don't-work-so-well dept.

Government 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.

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151 comments

Rimshot (1)

negRo_slim (636783) | more than 4 years ago | (#28314037)

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!

BocnpRHet pog lIOgCKoj (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28314465)

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Re:BocnpRHet pog lIOgCKoj (1)

retchdog (1319261) | more than 4 years ago | (#28315219)

I'm just guessing here: you put a printed Cyrillic document through English OCR, right?

Re:Rimshot (0)

Anonymous Coward | more than 4 years ago | (#28315321)

Well they RIAA could say that they produce bull shit lawsuits, would that count?

Treason Definition (1)

maz2331 (1104901) | more than 4 years ago | (#28315723)

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.

why? (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28314061)

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

Re:why? (5, Insightful)

eldavojohn (898314) | more than 4 years ago | (#28314109)

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? (5, Insightful)

nine-times (778537) | more than 4 years ago | (#28314339)

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? (3, Insightful)

donaggie03 (769758) | more than 4 years ago | (#28314615)

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? (1)

Mikkeles (698461) | more than 4 years ago | (#28314889)

An activist court could decide that a tail is a leg; a sheep still only has four legs.

Re:why? (2, Insightful)

donaggie03 (769758) | more than 4 years ago | (#28314971)

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? (3, Interesting)

PopeRatzo (965947) | more than 4 years ago | (#28315195)

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 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.

Re:why? (2, Insightful)

donaggie03 (769758) | more than 4 years ago | (#28315461)

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? (1)

nine-times (778537) | more than 4 years ago | (#28314979)

Are imaginary papers protected under the 4th amendment?

I can't see why they shouldn't be. Yes, I can imagine a world where those files are considered immune to this amendment, but on the other hand, I can imagine a world where car trunks are also considered immune. I can imagine lots of worlds where the government gets away with unjust and irrational distinctions, but I don't believe that a Constitution alone can prevent that.

Re:why? (1)

donaggie03 (769758) | more than 4 years ago | (#28315053)

Are imaginary papers protected under the 4th amendment?

I can't see why they shouldn't be. Yes, I can imagine a world where those files are considered immune to this amendment, but on the other hand, I can imagine a world where car trunks are also considered immune. I can imagine lots of worlds where the government gets away with unjust and irrational distinctions, but I don't believe that a Constitution alone can prevent that.

Well then I think you give your fellow man too much credit. The people around you really believe there are "tubes" and "clouds." Your average rational person generally understands that these rights apply to physical issues like car trunks or briefcases or whatnot. It is a lot easier to convince that same man that his password or encryption key is not protected because it is not a real physical object.

Re:why? (1)

Atlantis-Rising (857278) | more than 4 years ago | (#28315417)

That's not what he's saying, though. What he's saying is that the law means nothing without the people who interpret it. The law is, ultimately, it's interpretation; safeguarding the law requires more than a law without loopholes, it requires people who enforce the law to want to uphold its spirit, not only its letter.

In that sense, adding digital 'rights' to the constitution is irrelevant. Unless there are people in the government who want to uphold digital rights, they will not be upheld.

I believe it was Lawrence Lessig who elaborated on this most clearly when he said that a constitution is really nothing more than a piece of paper. It cannot stop anyone. It is nothing more than an ideal to live by.

Re:why? (1)

donaggie03 (769758) | more than 4 years ago | (#28315569)

And you are missing what I am saying too. Of course the constitution is just words on paper, and you need people in government who will abide by the spirit of the document, and even fight for it. But it is also a lot easier for these constitutional protectors to do their jobs if they can say "look, it says RIGHT HERE that the right to bear arms shall not be infringed." The fight to keep that right has been raging for years, and if it wasn't for the fact that it is spelled out so clearly, it would have been taken away a long time ago. In fact, the only real argument for limiting that amendment's scope has been the undying question of how important the "militia" part is. If a sentence is vague and open to many interpretations, then even if you have people fighting tooth and nail to preserve the intent of that sentence, they could still lose the battle because some judge thinks they know better than the constitution.

Re:why? (2, Insightful)

Atlantis-Rising (857278) | more than 4 years ago | (#28315655)

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? (1)

donaggie03 (769758) | more than 4 years ago | (#28315719)

And I contend that the reason for this is because all three systems rely so heavily on judicial interpretation.

Re:why? (3, Insightful)

PopeRatzo (965947) | more than 4 years ago | (#28315143)

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? (1)

donaggie03 (769758) | more than 4 years ago | (#28315311)

No disagreement here. I just want to reiterate the idea that if something is explicitly spelled out in the constitution, it is much harder to trample over. Yeah, some of the things that are spelled out in our constitution have been trampled over, but the fact that they were spelled out may be what kept them from being trampled for 200 years.

Re:why? (2, Insightful)

Nikker (749551) | more than 4 years ago | (#28316197)

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? (3, Interesting)

sexconker (1179573) | more than 4 years ago | (#28314619)

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? (2, Interesting)

nine-times (778537) | more than 4 years ago | (#28314959)

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? (1)

sexconker (1179573) | more than 4 years ago | (#28315093)

As I said, even considering that the right to privacy would fall under a reserved right for the people (by not being listed), it makes no sense.

You can't just claim a right to privacy.

Don't want to pay taxes? By my right to privacy, I won't tell you how much I earned.

Don't want to obey the law? By my right to privacy, you can't know my name or address, office.

Don't want to be drafted?
Don't want ?

I agree that we need privacy rights.
We don't need a general "right to privacy" because it'll just be eroded away like the freedom of speech or the right to bear arms.

Re:why? (1)

nine-times (778537) | more than 4 years ago | (#28315387)

Well whether or not you want a right to privacy, you have one. You have all the rights associated with leading your own life that you/we haven't granted to the government.

But take your example of taxes: the government is explicitly given the power to collect taxes, and therefore (naturally) has been granted to the power to investigate activities that are taxed.

None of your rights are completely unlimited. The first amendment doesn't give you the right to plot someone else's murder. The second amendment doesn't allow prison inmates the right to own rocket launchers. That they're limited in reasonable ways doesn't mean that you don't have those rights.

But then there's this one:

Don't want to obey the law? By my right to privacy, you can't know my name or address, office.

As far as I know, there's nothing illegal about failing to disclose your name and address. There may be forms that the government will reject if those pieces of information aren't disclosed, but I don't believe a police officer can arrest you for simply refusing to give your name.

And these:

Don't want to be drafted? Don't want ?

Now that's a real straw-man argument. I didn't say we have the right to "do whatever we want and not-do whatever we don't want". But yes, we have a general right to privacy-- which I would roughly define this way: the government is in no way entitled to investigate or record your private affairs unless it's in the course of or a necessary component of the government exercising one of its enumerated powers.

Re:why? (1)

sexconker (1179573) | more than 4 years ago | (#28315767)

The point is if we have a "right to privacy" (and I still contend that we do NOT) specified, then it will be eroded, as out right to free speech has, and our right to bear arms has.

The right to free speech DOES give you the right to talk about murdering someone. The fact that you'll get arrested for talking about it is an erosion of that right. You can be scrutinized and investigated without infringing on that right. You can be arrested if an actual plot is uncovered. You can be sued if there is demonstrable harm done, such as to your intended target. But when you are silenced or censored, or punished for what you say, that is an erosion of the right to free speech.

The same thing goes with the right to bear arms.
The government telling me what guns I can own, how many, how long I need to wait to get them, etc., are all eating away at my rights.

The same thing goes for the "right to privacy". As soon as it was interpreted in to the constitution, it started getting eaten away at.

You either have to define the right completely and explicitly (impossible) or define the right broadly, and define any exceptions at the same level (in the constitution itself). Since the right to privacy is not specifically listed, each time a case involving privacy issues comes forward, it's open to interpretation. This is why people always fear Roe vs Wade getting overturned.

Furthermore, a right to privacy would not just be in relation to the government. If a person has a right to privacy, then it is the government's responsibility to protect that right.

Telemarketer calls you? Take them to court. Facebook won't let you delete your profile? Take them to court. Doctor tells you you have aids, and you don't want to reveal that to your partners? You just got out of prison but don't want to register as a sex offender, wear a locating device, and inform your neighbors for the rest of your life?

There are countless examples of where it is just fucking impossible for a "right to privacy" to exist. These are not straw-man arguments (anyone using that term as a rebuttal loses, by the way - it's the internet equivalent of sticking your fingers in your ear and singing "i can't hear you!"). You've defined it well with regards to an exception for the government. What about in dealings with non-federal entities? Or does this right ONLY apply to dealings with the federal government (if so, it's not a RIGHT, and it's pretty useless).

Re:why? (1)

nine-times (778537) | more than 4 years ago | (#28316031)

The point is if we have a "right to privacy" (and I still contend that we do NOT) specified, then it will be eroded, as out right to free speech has, and our right to bear arms has.

So your contention is that speech would be *less* eroded if we didn't recognize it as a right? That's silly. We have laws against conspiracy to commit murder for obvious reasons, and that's not a real erosion of your freedom of speech. No one ever intended that you could formulate a plan to murder someone, instruct someone to do the deed, and then walk away without prosecution because you weren't the person who literally pulled the trigger.

But really, when all things are considered, our freedom of speech in the US is not very eroded. People are constantly criticizing the government, and they aren't prosecuted. Your freedoms get eroded much more easily when they're not recognized as general human rights. I would say that our privacy is already much more eroded than our freedom of speech or even our freedom to bear arms, and I think that's because there are a lot of people who refuse to acknowledge that you have any reason to expect that the government won't spy on you.

We had some years where people were seriously suggesting that the government should be permitted to put citizens under active surveillance indiscriminately, without cause and without warrant. People contended that it should be fine for the government to tap your phone and search your library records without reason, just for data-mining, just in case you might possibly be up to something. That's a very dangerous thing that occurred only because so many people were convinced that there's no "right to privacy".

Re:why? (1)

jonnat (1168035) | more than 4 years ago | (#28314433)

That's a good point, but it misses the OP intent.

If the constitution guarantees the right to privacy, it should not matter whether this privacy may be violated in the physical or digital worlds. Your basic online rights should be ideally imbued in your constitutional rights. The fact that there are many more ways to invade your privacy digitally means that this right should be more strongly enforced digitally.

Re:why? (2, Insightful)

sam_handelman (519767) | more than 4 years ago | (#28314493)

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? (1)

donaggie03 (769758) | more than 4 years ago | (#28314765)

I like that idea. Instead of distinguishing between digital right and non-digital rights, simply specify within the constitution that rights should be interpreted as broadly as possibly, not as limited as possible. Or even better. The only limiting factors to constitutional rights bust be spelled out within the constitution itself (i.e. not by wishy washy congress or activist judges).

Re:why? (1)

QuoteMstr (55051) | more than 4 years ago | (#28314855)

I agree that rights should be given in broad, technology-agnostic terms. But there should be particular and specific restrictions on the government that ensure that violations of a constitution's spirit are also egregious violations of its text.

In particular, "due process" is vague and hasn't stopped the United States from violating [wikipedia.org] the rights [wikipedia.org] of its citizens. One exception to the destruction of civil liberties, however, has been the right to a jury trial, which has not been touched, and will probably stand as long as the country does. What makes the right to a jury trial more durable than the other due process rights is that it's spelled out directly in the constitution, while other rights are merely implied by phrases like "due process" and qualified by exceptionally flexible words like "unreasonable".

Re:why? (1)

treeves (963993) | more than 4 years ago | (#28314719)

I don't know, but then, why should civil rights be considered any different than "non-civil" rights? It's just a convenient term that categorizes a subset of rights that have their own particular difficulties and applications, I suppose.

Re:why? (1)

htdrifter (1392761) | more than 4 years ago | (#28314895)

People have rights, things do not.
Laws control the rights of a person to possess and use things.
The delivery method should not be relevant.

This is slashdot (4, Funny)

sakdoctor (1087155) | more than 4 years ago | (#28314069)

We're all legal experts here.

Re:This is slashdot (1)

impaledsunset (1337701) | more than 4 years ago | (#28314283)

Someone is asking for constitution drafting advice on Slashdot? And I thought I had seen everything.

What's next? Mars human base construction advice?

Re:This is slashdot (1)

camperdave (969942) | more than 4 years ago | (#28314385)

What's next? Mars human base construction advice?

I don't know about Mars, but I find it interesting that an Earth-normal atmosphere constitutes a lifting gas on Venus. In other words, we could build a giant blimp on Venus, filled with normal air, and live inside it. We could have our floating cities. All it needs is an envelope that can survive the sulfuric acid clouds and rain, and the temperatures.

Re:This is slashdot (1)

morgan_greywolf (835522) | more than 4 years ago | (#28314865)

All it needs is an envelope that can survive the sulfuric acid clouds and rain, and the temperatures

And now, you see exactly what impaledsunset means. We're about as good ask for legal advice.

Re:This is slashdot (1)

networkBoy (774728) | more than 4 years ago | (#28315081)

Depending on what altitude you actually reach neutral buoyancy on Venus, you may not have that much temperature to deal with, just acid... Garbage disposal would be fairly easy, just drop it if it's not recyclable.
-nB

Very simple (5, Insightful)

Anonymous Brave Guy (457657) | more than 4 years ago | (#28314103)

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.

But digital rights deserve elaboration (1)

hellfire (86129) | more than 4 years ago | (#28314477)

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.

Re:But digital rights deserve elaboration (3, Insightful)

ring-eldest (866342) | more than 4 years ago | (#28314655)

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:But digital rights deserve elaboration (1)

donaggie03 (769758) | more than 4 years ago | (#28314809)

Mod UP! That is exactly what I was trying to say a few posts up, but you explain it much more concisely.

Re:But digital rights deserve elaboration (1)

JesseMcDonald (536341) | more than 4 years ago | (#28314757)

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.

A constitution should be technology-agnostic. Framing it purely in terms of paper would be just as bad as framing it purely in terms of digital technology. The problem does exist with paper, in any event; even without computers you need standard processes for recording data, storing it, indexing it, requesting it, communicating it, etc. The means be which these questions would be answered for paper information storage can be applied to digital systems as well.

Anyway, the real problem (as I see it) is that they're only discussing a constitution. Certainly such a fundamental document should be short, clear, and well-written, with as few loopholes and period-specific references as possible. However, you need something more to ensure that it isn't twisted or misinterpreted by others who might not think like you. A large body of case studies is required, demonstrating not only how you mean for it to be interpreted in specific situations, and why, but also the underlying reasoning and principles on which the constitution was based. Analyzing the case studies will also help you to shore up any weaknesses in the constitution itself.

The constitution sets the tone, and summarizes your shared principles. The rest is there to answer the question "How does all this apply to me?", and is arguably the more important of the two documents.

Re:But digital rights deserve elaboration (1)

bertoelcon (1557907) | more than 4 years ago | (#28315079)

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."

There is a problem that ensues if we use a statement like "this includes digital media". It can imply to the here and now but the technology can be changed and a new phrase used to describe it. Therefore in some number of years the same predicament will occur just as it is now. I don't think that there is any lasting way to fix it that does not create a mass of loopholes, but it is never going to have an end all solution. It will have to be as adapting as humankind will allow and the business models can work around, which is the largest source of the problem in it now.

Re:Very simple (4, Insightful)

nine-times (778537) | more than 4 years ago | (#28314485)

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:Very simple (1)

rolfwind (528248) | more than 4 years ago | (#28314819)

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?

What a fucking perversion of the interstate commerce clause. The lawyers twist it to mean anything. How else do you think that states can really legalize pot now, even though that pot could stay within the state's borders the entire time? Via interstate commerce clause, they argue, because it COULD go out of state. Just like I may commit a crime one day, so lock me up now before it happens.

Mail was delivered for 160+ years in this country before the interstate highways. I never once thought "Gee, this highway is here to deliver mail". It never occured to me, because that's a benefit of the highway but not the main purpose. (I'm not saying highways aren't beneficial, but that's a seperate discussion).

Re:Very simple (1)

nine-times (778537) | more than 4 years ago | (#28315267)

I'm not talking about a perversion of the interstate commerce clause. I'm talking about the following (article I, section 8):

To establish Post Offices and Post Roads

Now I don't know if this was ever raised historically to justify the interstate highway system, and really that wasn't my point. My point was that, aside from that one line about "Post Roads" (and arguably the interstate commerce clause), the federal government has no legal authority to do anything regarding national infrastructure.

However, it's hard to read the failure to enumerate "to build and maintain national infrastructure" as an attempt to preclude the federal government from being involved in infrastructure, given the mention of Post Roads. Well given that, and also given that the whole thing was written before the Internet, telephones, and the automobile were invented; before electricity was really understood; and before indoor plumbing was common. The fact that there basically wasn't any such thing as large-scale infrastructure except for roads and maybe aqueducts probably had something to do with it.

Re:Very simple (1)

Xarin (320264) | more than 4 years ago | (#28315585)

What a fucking perversion of the interstate commerce clause. The lawyers twist it to mean anything. How else do you think that states can really legalize pot now, even though that pot could stay within the state's borders the entire time? Via interstate commerce clause, they argue, because it COULD go out of state. Just like I may commit a crime one day, so lock me up now before it happens.

Mail was delivered for 160+ years in this country before the interstate highways. I never once thought "Gee, this highway is here to deliver mail". It never occured to me, because that's a benefit of the highway but not the main purpose. (I'm not saying highways aren't beneficial, but that's a seperate discussion).

The interstate commerce clause is also used to justify the civil right act of 1964. Your argument also applies to segregation as well. The question being, if I have a restaurant in the middle of nowhere and the state is fine with what I do, what right does the federal government have in telling me how to run my business. Without a broad interpretation of the commerce clause, the federal government loses its ability to affect social change. It seems one can not have their cake and eat it too. I am all for state rights but not at any cost.

Re:Very simple (1)

Anonymous Brave Guy (457657) | more than 4 years ago | (#28315421)

So in this new constitution, what role do you want to assign the government in terms of creating/maintaining/regulating communications infrastructure?

None whatsoever. Regulation of specific communication channels in specific ways is well short of a constitutional issue. Heck, even the existence of specific communication channels is well short of a consitutional issue. The right to make political statements via any public medium without fear of government persecution is the sort of things that needs to be enshrined in a constitution.

As it happens, I think there's also a decent argument that if you allow artificial legal entities such as corporations then you also mandate a limit on their powers at the same legal level. That might include provision for controlling competition/collaboration/monopoly exploitation, which would clearly be relevant to communication channel providers.

But any essential regulation follows from broad principles such as these. There is no need for specifics in a constitution-level document; in fact, having them there is actively harmful.

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?

Well, I don't believe in absolute freedom of speech, so personally I wouldn't have needed a constitution-level loophole for that one.

But in any case, the mistake the US made there was saying "for a limited time" without giving any specific criteria to define what that limit is. Such a constraint is, as we have seen, meaningless.

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?

No. Again, these sorts of provision are far too specific for a constitution.

The government should be compelled to disclose all information requested by any citizen within a reasonable (specified) period and at a cost no higher than some specified level (as in, no more than the direct costs incurred by the government exclusively and necessarily in the course of disclosing the requested information, not as in a specific amount of currency). If there is to be any exception whatsoever, there should be a specific statement of the criteria to be met, and I would argue that there should be provision for a statutory, independent authority whose approval must be obtained by any government department any time it wishes to appeal to the exception, such as a constitutional court. As with corporations, this is a case of if you create a loophole for someone at constitutional level, you have to regulate it at the same level.

The format of the disclosure merely needs to be something that is readily accessible to the citizen who requests the data. It doesn't matter what that is. Heck, I don't care if the only copy of the government records that is accessible to the public is stored in paper files on the moon, as long as the government provides safe and cost-effective lunar transportation system so anyone may retrieve it reasonably quickly and without undue expense. (It will soon become apparent that the costs incurred in this case are not necessary and the government will get spanked for it accordingly, of course, sooner or later probably leading to some official library arrangement or similar.)

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?

Once again, specifics are inappropriate. The point is that the government should not be keeping any records on any citizen beyond those reasonably necessary to administer the system (e.g., keeping a register of electors) and to fulfil its statutory duties to the public. Once again, the default should be that no-one in government can keep any records on anyone for any reason, and the exceptions to that rule need to be monitored in a specific way, if only by a constitional court.

Re:Very simple (1)

nine-times (778537) | more than 4 years ago | (#28316211)

Every one of your objections amounts to, "we shouldn't put specifics into the constitution," but I didn't advocate getting specific in the constitution.

Looking at the US constitution again as an example, it says the president should inform the congress of the state of the union "from time to time", and so we have a State of the Union speech every year. It didn't mandate that it be broadcast on TV (which would be overly specific, besides being anachronistic), and it doesn't dictate the form or content of that communication. Still, it requires that the president informs congress of the state of the union. Allocating powers and duties doesn't need to be specific.

So my example about posting laws on the Internet in advance, you could have something much more vague and not relating to particular technology. You could say something to the extent of, "all laws must be made available in a publicly available forum by review of the citizens before they can be put to a vote."

As far as regulating infrastructure or granting copyrights, you don't have to deal with it on a very fine level, and you don't have to use the words "infrastructure" or "copyright", but either your Constitution will allow your government to do those things or it won't.

Or let me put it another way: someday, someone in the government will propose a law to regulate the construction of some piece of infrastructure. Someone else may ask, "Is that something we're even constitutionally empowered to do?" Whatever the answer is, it'd be good if there were some hint or guideline in the Constitution that would help answer that.

Interstates Are Specifically Mandated (1)

maz2331 (1104901) | more than 4 years ago | (#28315717)

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.

Re:Interstates Are Specifically Mandated (1)

nine-times (778537) | more than 4 years ago | (#28316183)

Yeah, I know. That's what I was referring to when I wrote, "However, the federal government is given the right to create roads for the purpose of delivering mail." So there's the slightly expanded version of my argument:

The government was not explicitly and specifically given the power to create an interstate highway system, but of course they wouldn't have been given that power because there were no cars. They weren't give any general powers to build infrastructure like telephone networks, the Internet, electrical grids, or trains, but none of those things existed back then, either.

So since you can't expect that they would have anticipated these technological developments, we kind of have to go looking for intent next. So does the Constitution give any hint of what the founding fathers would think of interstate infrastructure, like roads or communications infrastructure? Why yes, it precisely does. It says the government is empowered to develop the most advanced communications infrastructure available at the time (post roads and post offices).

Given that, I would argue that the founding fathers, were they to write the Constitution today, would probably grant the government a more general power to build, maintain, and regulate interstate infrastructure.

Analogies are tricky; pick your wording carefully. (1)

pavon (30274) | more than 4 years ago | (#28314933)

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.

The notion of "Digital Rights" is ridiculous (1)

erroneus (253617) | more than 4 years ago | (#28314105)

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.

Re:The notion of "Digital Rights" is ridiculous (1)

Gospodin (547743) | more than 4 years ago | (#28314523)

While all you say is true, let's be generous and assume that the story poster really meant "information rights".

My own thought on that question is that if Nepal wants to put in a couple of clauses of information rights, great. But it seems to me that they have bigger fish to fry: get basic freedoms, separation of powers, checks and balances, etc. right. Otherwise your information rights are pretty much irrelevant.

Related thought: It ill serves a Constitution to be long or attempt to be complete. It should be general; it should be brief; and it should only grant powers (i.e. it should say things like "the government can only do X, Y and Z", rather than "the government can do anything except X, Y and Z"). It's quite possible information rights don't make this cut (I'm not trying to make that case, just pointing out that because something is good doesn't necessarily mean it should be in the Constitution).

Re:The notion of "Digital Rights" is ridiculous (2, Insightful)

QuoteMstr (55051) | more than 4 years ago | (#28314707)

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 [wikipedia.org]

...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" [wikipedia.org] part of the Copyright Clause [wikipedia.org].

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.

Open Standards. (3, Informative)

Narpak (961733) | more than 4 years ago | (#28314119)

At least regarding open standards this is my country's (Norway) current policy:

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 [regjeringen.no]

Currently they are considering what standards to use for audio and video; the current policy of Open Standards apply.

Re:Open Standards. (1)

Narpak (961733) | more than 4 years ago | (#28314295)

You might also be interested in SINTEF [sintef.no]s report eCitizen2.0 [regjeringen.no].

New report: The government must use the culture of sharing on the Internet

Web users wish to spread information from public sources through internet communities. However, there is a risk that the government is slowing down this process, according to the report eCitizen 2.0, received by Minister of Government administration and reform, Ms. Heidi Grande RÃys, recently.

- There are enormous possibilities for dialogue and distribution of information, if the government and the users of web communities are cooperating. This report will provide us with better knowledge of how the government can meet the citizens where they are, Ms Grande RÃys says.

The second title of the report, which has been commissioned by the Ministry from the research institution SINTEF, is âoeThe ordinary citizen as provider of public information?â SINTEF recommends that the public sector to a larger extent must regard the citizens as collaborating partners rather than as passive recipients of information.

- Todayâ(TM)s web users expect to be able to share and edit texts, pictures and videos they find on the internet. The challenge will be to create a culture of sharing, in which public information is distributed by the citizens themselves, without losing important content or trust in the process, Grande RÃys says.

The recommendations from the researchers imply that public information should be made freely available and reusable, and that public institutions to a larger extent must be willing to experiment and take risks. The report mentions examples of innovative services from other countries, like the US and Great Britain.

- There is a lot of useful government reform in an active ICT policy providing possibilities for inclusion, sharing, openness and dialogue. This is all about the ability of the government administration to be innovative in developing public services, and how we can improve our services by utilizing the usersâ(TM) competence, the minister says.

eCitizen2.0 - The ordinary citizen as a supplier of public-sector information (PDF) The report is made by Petter Bae Brandtzæg and Marika Lüders in SINTEF.

SINTEF:

The SINTEF Group is the largest independent research organisation in Scandinavia. Every year, SINTEF supports the development of 2000 or so Norwegian and overseas companies via our research and development activity.

Business concept
SINTEF's goal is to contribute to wealth creation and to the sound and sustainable development of society. We generate new knowledge and solutions for our customers, based on research and development in technology, the natural sciences, medicine and the social sciences. /quote

Re:Open Standards. (1)

MobyDisk (75490) | more than 4 years ago | (#28314365)

Those a good standards. But none of those things should be in a constitution. Perhaps something simpler like "the right to open access to government documents" could be in a constitution.

Re:Open Standards. (1)

Narpak (961733) | more than 4 years ago | (#28314557)

Of course, my posts were simply to give some information about the developments regarding Open Standards in my country. This is policy decisions and not in anyway a part of the Norwegian Constitutions. If any thing should be written into a constitution then it should, hopefully, be written and rewritten until it is a clear and single point that don't specifically mention formats or anything that might change several times over the next century or so.

Rights are Rights. (2, Insightful)

ScentCone (795499) | more than 4 years ago | (#28314131)

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.

Re:Rights are Rights. (0)

Anonymous Coward | more than 4 years ago | (#28314425)

"Constitutions are about what the government cannot do..."

The U.S. Constitution expressly states what the government can do. Everything else is assumed to be illegal. Of course, this is mostly dead in today's modern era due to court interpretations. I'm interested in knowing if other nations have similar schools of thought in regards to their constitutions.

Re:Rights are Rights. (0)

Anonymous Coward | more than 4 years ago | (#28314713)

Also, in several cases, what the government cannot do... "shall make now law," "shall not be infringed", etc...

Re:Rights are Rights. (0)

Anonymous Coward | more than 4 years ago | (#28316003)

^^ You are right. No one is wise enough and with the internet in its infancy to even know what the rights should be at this point. Just protect the basics and apply it to the medium instead of drafting up ideas that could be out of date or irrelevant in 10 years.

Define "Constitution" (1)

chill (34294) | more than 4 years ago | (#28314169)

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.

There's no such thing as Digital Rights (2, Insightful)

xednieht (1117791) | more than 4 years ago | (#28314199)

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.

What you need (1)

PingXao (153057) | more than 4 years ago | (#28314229)

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.

As a Member of the Unwash Masses (2, Interesting)

eldavojohn (898314) | more than 4 years ago | (#28314251)

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 [rsa.com] at the bottom of the page. Unrestricted levels of encryption would be a nice liberty to enjoy.

They're not that different from RL rights, really. (0)

Anonymous Coward | more than 4 years ago | (#28314253)

Many of the laws that restrict some medium or other or perhaps assign rights to some party or other for whatever noble or less noble reason, create differences that are wholly artificial not to mention arbitrary. If you look at the actual rights issues, you often see that the medium itself has little to do with it, and where it does the structure of the medium can be abstracted and made more general.

In other words, "the new media" and whatnot is far less unique and different than people make it out to be. What you're trying to protect against is people abusing or infringing other people's rights, and you should probably concentrate on that, not on what medium it happens on. And in any case, you often cannot protect against stupidity anyway. Especially not lawmaker stupidity.

Digital rights (1)

bonch (38532) | more than 4 years ago | (#28314263)

Digital rights? So that means they're going to protect the rights of content creators by being proactive against piracy? Or is this the Slashdot definition of "digital rights" which, for some reason, only includes people getting sued by the RIAA when they get caught pirating music? Just curious whether Slashdotters are going to be as self-serving as usual when it comes to talk about rights.

Fully expecting to get modded down for taking an anti-piracy position on Slashdot (the horror!). I'm used to it.

Simple.... (c) 1791 (1)

Markvs (17298) | more than 4 years ago | (#28314409)

Amendment I
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.

...That should about cover it. Ho modeled VietNam's Constitution on the USA's, there's no reason Nepal can't borrow a bit.

Right to Internet Access? Right to software? (1)

Digital_Quartz (75366) | more than 4 years ago | (#28314845)

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).

Re:Right to Internet Access? Right to software? (1)

QuoteMstr (55051) | more than 4 years ago | (#28314911)

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?

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.

Re:Right to Internet Access? Right to software? (1)

cdrguru (88047) | more than 4 years ago | (#28314983)

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?

Corruption (2, Interesting)

QuoteMstr (55051) | more than 4 years ago | (#28314467)

"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.

Article 1249: ring's right to a free hooker daily (1)

ring-eldest (866342) | more than 4 years ago | (#28314497)

(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.

Require key preservation and release. (1)

gurps_npc (621217) | more than 4 years ago | (#28314507)

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.

Data rights (0)

Anonymous Coward | more than 4 years ago | (#28314513)

Consider data rights as well. In the USA (my country of residence), many things end up in the public domain because of precedent that was established when consequences were poorly understood. A very important point that can be made in a new constitution is that each citizen is the owner of all data they produce. If they set up residence somewhere, that datum is owned by the individual. If a company or government wants to publish the fact that this individual resides at some particular address, they need to negotiate with the rights-holder (the individual). Same for purchases from a vendors. If you initiate and complete the transaction, then the fact that it occurred should be yours, your intellectual property. If the vendor wants to sell it to a third party, they have to negotiate the rights. Same if you register to vote. All that stuff shouldn't just be for sale for the highest bidder without consulting and remunerating the originator/author or all that data. Also make sure that such licenses require actual signatures, not implicit "by shopping here you agree to let us use and resell your information" contracts. Also make sure that those are never required for a transaction, i.e. that it cannot be denied for lack of right licensing.

Open ROW and Content/Infrastructure Sep'n (1)

MarkvW (1037596) | more than 4 years ago | (#28314553)

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.

Absolutely (1)

moon3 (1530265) | more than 4 years ago | (#28314621)

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.

modu down (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28314751)

your own bber Is the group that

Take suggestions from real life (2, Insightful)

Opportunist (166417) | more than 4 years ago | (#28314773)

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".

How Should a Constitution Protect Unicorns? (1)

pembo13 (770295) | more than 4 years ago | (#28314903)

I think that's an equivalent question. Both are imaginary/purely concepts.

There's something missing from the argument... (1)

interval1066 (668936) | more than 4 years ago | (#28314981)

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.)

Some ideas (1)

Jane Q. Public (1010737) | more than 4 years ago | (#28314987)

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.

"Regardless of the technology" (1)

DynaSoar (714234) | more than 4 years ago | (#28315167)

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.

Right to Teach, Right to Learn (1)

Bob the Hamster (705714) | more than 4 years ago | (#28315649)

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.

DRM or copyright, not both (1)

cheebie (459397) | more than 4 years ago | (#28315897)

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.

The Right To Possess Digital Information (2, Insightful)

Brian Ribbon (986353) | more than 4 years ago | (#28315935)

"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.

One idea (1)

jonwil (467024) | more than 4 years ago | (#28316121)

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.

APC Internet Rights Charter (2, Interesting)

grantdh (72401) | more than 4 years ago | (#28316155)

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.

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