America needs a Cyber Bill of Rights

America needs a Cyber Bill of Rights

Summary: The time has come for a Cyber Bill of Rights — a clear, concise, powerful, understandable, and relevant governance guide to our modern age.

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America has changed dramatically since the Bill of Rights was ratified in 1791. The first ten amendments to the Constitution of the United States were designed to patch design flaws and add features to the original functional spec for American freedoms and responsibilities.

The founding fathers were the thinkers and makers of their time. While armed revolution eventually became necessary, the original Continental Congress and the various state delegations worked to draft what would become the fundamental operating system of the new nation.

cyber-constitution-thumb

They carefully considered rights, responsibilities, limits, and even mundane operational policies. Our founders looked at what it was like to live in the British colonies and what they wanted it to be like living in the new American nation, and coded a set of laws that became the DNA, the BIOS, of our society.

Freedom of speech, freedom of press. The right to keep and bear arms. Protection from unreasonable search and seizure, due process, fair trials, protection against cruel and unusual punishment... these were all key elements that would define life in the United States for more than 200 years.

Astonishingly, all ten Amendments amount to less than 500 words.

Our founders found a way to communicate fundamental truths with a brevity and clarity that could be understood (and debated endlessly) by all.

The existence of a united States (which is how it was originally written) is, itself, astonishing. Each of the individual states had wildly different interests, agendas, belief systems, laws, and even currencies. And yet, through the unique mess, ugliness, and wonderment that is American politics, they managed to agree on a uniting set of fundamental rules.

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The Constitution and Bill of Rights became an API that everyone in the U.S. could hook into. They built a system that citizens could grasp, that lawyers could work with, that lawmakers could extend, and that merchants could use as the foundation for commerce.

Americans had an identified set of operational freedoms and structures to work with. People knew, generally, what to expect and were able to move forward growing the original 13 colonies into the 50 states we all now know and love.

Fast forward to 2013 and beyond

The America of today is vast and very different from Jefferson and Madison's day. More to the point, how we communicate has changed in ways even Ben Franklin could never have imagined.

The Constitution was written for a spoken word and paper-writing world. Over the years, as technology has changed, our laws have imperfectly attempted to encompass the additions of telephones and wireless communications.

Now, we're moving to an all-digital realm.

We communicate with smartphones, over Facebook, via Skype, by texting each other, through Twitter, and via email. We can reach anyone in a second, and almost any one of us can reach thousands of people in the time it takes to click "Tweet."

We conduct almost all our business online, store our memories, view our entertainment, plan activities with our friends, collaborate with our co-workers, design our products, and even create real-life 3D objects. It's all made up of digital bits stored in our phones, tablets, laptops, PCs, servers, and cloud providers.

If the Constitution and Bill of Rights were written today, if somehow the greats — Madison, Jefferson, Franklin — were able to put their minds to building an America engulfed in digital data, you can be sure our digital reality would find its way into those documents.

Our problems are different and yet the same.

Sure, we're using Facebook and not parchment, but we're still threatened by enemy nations and violence. Sure, we use Twitter rather than relying on a town crier, but there are still spies and criminals who want to take advantage of our citizens.

When the Bill of Rights was written, it factored in both freedoms and national necessity. Take Amendment IV for example. The amendment protected people "against unreasonable searches and seizures" but also allowed for warrants to be issued for probable cause.

More specifically, Amendment IV even took into account specific circumstances, stating, "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."

Describing the place to be searched, and the persons or things to be seized. Very specific. Very understandable. Very clear.

That one amendment, a mere 54 words, stated both protections and legal necessity in a way that anyone would have time to read and understand. It was very elegant societal coding.

In fact, it's so well-written and so timeless that, even today, it may be applied to the recent actions of our government (in particular actions alleged of the NSA in its attempts to protect us against threats foreign and domestic).

Even so, it's becoming clear that the 18th century Bill of Rights isn't enough to lay down clear and careful rules for our digital nation. It's still relevant, but it's incomplete. It doesn't account for the scope of our digital nation.

Today, we Americans are rightly freaked because we think our own government may be spying on us.

We're upset, because we worry that our trusted cloud service providers may be in cahoots with the men in the black vans. Americans are now growing more and more paranoid — not just scared of terrorist threats, but of our own government, of saying, emailing, or texting something today and having it indexed, cataloged, and used against us at any time in the future, for any reason.

We Americans may disagree amongst ourselves. We may be Democrats and Republicans, Liberals and Conservatives, Tea Partiers and Blue Dogs. We may even be Mac, Windows, Android, iOS, or Linux lovers.

But we're all Americans, and we do understand the difference between a threat from a foreign terrorist and the implied threat from G-men listening in on our phone calls.

In its rightful quest to save Americans from terrorist threat, our agencies have gotten aggressive about big data analytics, data mining, trend analysis, and sentiment tracking. They have to. The challenge is huge and even a single missed signal could spell death to our citizens.

But that quest has come at a price.

Our trust has eroded even further, and worse, our trust in the companies we take the most pride in — Facebook, Google, Apple, Microsoft — has been eroded as well.

I believe the time has come to clarify Americans' rights and responsibilities in a digital world. The time has come not for some 2,000-page convoluted law, but for another 500 words setting out what Americans can expect for the next two centuries.

The time has come for a Cyber Bill of Rights, a clear, concise, powerful, understandable, and relevant governance guide to our modern age.

If only we had Madison and Jefferson in Washington today, instead of Obama and Boehner. Even so, we can take up the cause, we can start the ball rolling. We can frame a series of new amendments, a series of foundational rules that we all can understand and all are willing to abide by.

It may not be practical to expect passage of a whole new ten amendments to the Constitution any time soon.

Even so, we can certainly write a set of guidelines that help us all agree upon where we stand, what we won't stand for, and what we understand together. What do you think? If we had a Cyber Bill of Rights, what would your ten amendments be?

Topics: Government US, Privacy

About

David Gewirtz, Distinguished Lecturer at CBS Interactive, is an author, U.S. policy advisor, and computer scientist. He is featured in the History Channel special The President's Book of Secrets and is a member of the National Press Club.

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49 comments
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  • Hopelessly specific

    Trying to come up with a "Cyber Bill of Rights" would be a wasted effort akin to "nailing jello to the wall".

    What rights would you have considered absolutely critical 5 years ago based on then current technology? Consider that Twittr and Tumblr were just getting going in 2006. Hadoop was created in 2005. Android was launched in 2007. The iPad didn't come out until 2010. Finally, we're just starting to deal with the idea of Google Glass.

    Any legislative process would take years to complete and be obsolete before it was even voted on. Beyond that, the real power of the current Bill of Rights comes from decades of court decisions that provide the actual legal interpretations.

    So, I'd recommend that instead of trying to revamp something that seems to work quite well, the concentration should be on reminding everyone that just because something is done electronically today, it does not, in fact, change the nature of the action.
    Robert Crocker
  • Agree completely but ...

    ... "we can certainly write a set of guidelines that help us all agree upon where we stand, what we won't stand for, and what we understand together."
    The thing is ... THE GUIDELINES WRITTEN in 1791 DON'T NEED TO CHANGE VERY MUCH!
    What Americans need to do is:
    - sort out a decent political system, rather than the current ineffective deadlock
    - moderate the rampant corporate control and greed of your major corporations (how about Obama agreeing that APPL, STARBUCKS, AMZN, et al pay some tax abroad already!)
    - stop meddling in other nation's affairs

    Until you get to base camp NOBODY is going to trust you. Correction: everybody knows you are untrustworthy.

    In short, you need to start living up to the ideals of your forefathers.

    Here's my deal again: I - in the UK - will grant you access to my private information and monitoring of my computing systems for fraud, piracy, illegal activities, whatever ... providing you greedy American bar stewards act fairly and provide me with value for money.
    At the moment I, with massive justification, wouldn't trust you as far as I can throw a datacentre.
    (And yes, I know it's crap over here in the UK too, but it's better than Syria.)
    jacksonjohn
    • Generalizations...

      Your mistake in judging Americans is that you are generalizing the actions of our government to be the attitude most Americans have. Most of us despise our government, yet our idiotic two party system, created by the very few rich and powerful, always leaves us choosing the lesser of two evils for every office. It is our government which is untrustworthy, not us. We don't trust our government, either. They are greedy, corrupt puppets who follow an agenda which does not include us. They are entirely in the pockets of rich corporations and as a result, the majority of our laws are designed to protect the profit of those corporations, not the people.

      Your generalizations about our citizens are just as offensive as us saying every Brit is a lazy drunk with rotten teeth who can't pronounce "aluminum" correctly. You sound as though you've based your entire opinion of Americans on a few movies you've seen.
      BillDem
      • No, it's not a mistake.

        When the representatives are elected by the people, their government DOES reflect the general consensus of the people. Your two party argument fails. If the choice was always toward the lesser of two evils, the evil would gradually diminish over time as people kept choosing the "lesser." So, it's not the fault of having a two party system. It's the reality that many Americans today have no problem with the type of government we have.
        baggins_z
        • Your logic is flawed

          If I always gave you the choice between 5 apples, and 2 apples, and you always chose the lesser of the apples your total quantity of apples would not diminish it would just not grow as quickly. By choosing the lesser of 2 evils, the government is still becoming more evil but just at a slower rate than it could be.
          dkramer3
        • False logic.

          Your comment draws a false conclusion which is erroneously supported by false assertions. When BOTH choices are more evil than the previous two choices, the evil grows. It's pretty simple for logical people to grasp. If most Americans have no problem with our government, why are approval ratings in the 30-40% range? That indicates a majority of Americans disapprove of our government. Again, you've reached an unsupported conclusion.
          BillDem
      • No comment

        I didn't make any comment about the American PEOPLE ... other than that you need to get your political system and corporations under control (so do we in the UK ... indeed isn't it true everywhere?).

        That you choose to spell and pronounce aluminum as such, instead of aluminium, ... is ironically highlighted by the ZDNET spell checker, which says aluminum is incorrect. It is also entirely trivial in comparison to the other issues which we discussing.

        One of my favourite films is 'The Matrix', where the entire population is labouring obliviously under a false 'reality', when in fact their lives are controlled by a hidden elite.
        I guess you're right: you call the projected reality 'The American Dream'.
        jacksonjohn
        • ZDNet does not have a spell check to my knowledge.

          Any spell check going on is the spell check inherent in the OS you are using. OS X counts Aluminum as correct when the region is set to US and Aluminium as correct when the region is set to UK.

          I think the biggest issue with people is they read the Declaration of Independence and being "... that among these are right of life, liberty and happiness" instead of the correct "... that among these are Life, Liberty and the pursuit of Happiness."

          We all have the right to pursue happiness and success but it has to be a choice an individual makes and it often takes a great deal of sacrifice. There is also no guarantee of success only the pursuit.
          Bruizer
      • "Most of us despise our government"

        I don't think this is remotely true. I think most actually like major aspects of our government but see areas where it is broken. This is far from "most despising" IMO.
        Bruizer
  • Ummm...

    As if the US government respects the Constitutional Bill of Rights. Those days are long gone...
    NoAxToGrind
  • There is no need for a cyber bill of rights

    The original bill of rights was designed to check government. It applies to pretty much every situation because it was written with a profound understanding of human nature and government. The problem is, the people no linger subscribe to its principles. Case in point? Obamacare is patently unconstitutional to anyone who has read the document, but even our highest court had no problem with it.
    baggins_z
    • There are a ton of unconstitutional things...

      If you go back to the original constitution, the Federal Reserve is unconstitutional. The IRS is, too. In fact, the federal government has overstepped its bounds in nearly every way possible. Originally, the individual states were to be self-governing, while the federal government was financially supported by the states, primarily to provide for the common defense of the states against foreign threats and to facilitate interstate commerce. The reason some states have more representatives was in order to give the more populous states, which paid more into the federal government, a larger representation. Over the many years since, the federal government has constantly granted itself more powers of control over the nation and its people. The majority of the powers our federal government currently enjoys are unconstitutional and were granted by self-serving amendments which contradict the original intentions of our forefathers.
      BillDem
      • But the original Constitution is no longer in effect.

        There are these things called "Amendments". You might want to read up on them. If you think all the framers of The US Constitution were of a single mind when it came to states rights VS federalism, you are sadly mistaken.
        Bruizer
  • Bill of rights

    was written deliberately vague, the Constitution was deliberately written that way, in 1791 as is today it is not possible to predict what issues are going to be important in the future.

    So the Constitution needed a living entity to interpret the Constitution in respect of the issues of the day.

    This is the Supreme Court, So make the Constitution vague and have a specific court to interpret the constitution.

    That is why the 10 bills are only about 500 words long, they are not specific about "cruel and unusual punishment' for a reason, they left those decisions up to the supreme court.

    Constitution is not a 'specification' it's not like a 'rough outline', the 'operational details' are the domain of Supreme Court interpretation.
    Aussie_Troll
    • The process for updating

      the Constitution is spelled out within the Constitution itself: the Amendment process and the calling of a Constitutional Convention. There is no need for courts or elected officials to determine what the document actually means.
      baggins_z
      • Interpretation IS the job of the courts

        As the prior poster pointed out, "cruel and unusual punishment" requires court interpretation. So does "probable cause". These interpretations are not amendments; they are performing the functions of the judiciary.
        cuhulin1
      • Sure there is

        There have been disagreements about the meanings of specific constitutional provisions almost from the beginning (many members of Congress voted against the First Bank of the United States because they thought it was unconstitutional). And the framers anticipated this by giving authority to arbitrate constitutional disputes to the federal courts (look it up).

        Just because you think the whole document is self evident and needs no interpretation doesn't mean there are never any disagreements about it.
        John L. Ries
  • Not the problem

    If the Constitution and Bill of Right is meaningless to the government now, what difference would it make if a new one were drafted?
    Astringent
  • Bill of rights

    was written deliberately vague, the Constitution was deliberately written that way, in 1791 as is today it is not possible to predict what issues are going to be important in the future.

    So the Constitution needed a living entity to interpret the Constitution in respect of the issues of the day.

    This is the Supreme Court, So make the Constitution vague and have a specific court to interpret the constitution.

    That is why the 10 bills are only about 500 words long, they are not specific about "cruel and unusual punishment' for a reason, they left those decisions up to the supreme court.

    Constitution is not a 'specification' it's not like a 'rough outline', the 'operational details' are the domain of Supreme Court interpretation.
    Aussie_Troll
    • This is a modern interpretation...

      since the original founders didn't even make a building for the Supreme Court, telling you what esteem they held the court!
      Tony Burzio