Computers, Privacy & the Constitution

Technology Driven Rights

-- By AlejandroMercado - 26 Feb 2012


Even if we acknowledge that the Constitution is animated by old century thought, its efficacy and that of any other existing rights will henceforth be contingent to the changes in technology. Were we to rewrite the Constitution, amend it, or enact laws to resolve the challenges confronting our individual rights - arising as a result of advanced computing - in this day in age no provision of law will ever be prescient enough to provide a comprehensive answer to all future developments. Technology has proclaimed itself as the driving force that will shape our rights in the 21st Century. Accordingly, the focus of privacy advocates should shift towards securing “technology driven rights” through the development and adoption of technology that enhances and/or secures their privacy.

Spy vs. Spy

Spy vs. Spy

As advancements in computing become increasingly fast our system of law will be forced to transform itself from one that is driven on the expansion of rights through the interpretation of existing laws, to a system of law where the government will be constrained to decide whether to limit or expand rights that individuals or entities will come to expect to have through new technology. Whether these so-called rights operate for the purpose of serving Americans or corporate entities will depend in great part on the technology that is developed and by whom.

Already our privacy rights are languishing, not mainly as a result of government action, but as a result of private sector use of technology that is making us identifiable in every way. And to our misfortune, the existing privacy framework constitutes a patchwork of laws unstructured to address the challenges arising from the collection of personal data for commercial purposes.

An example of this conflict is seen through the indiscriminate practice of collecting customer information for the sake of consumer convenience, while truly motivated by a desire to increase profits through enhanced targeted advertising. Not only is said practice legal, given the absence of laws prohibiting the same, but consumers do not seem to have the freedom to prevent it. That is to say, although certain laws such as the FairCreditReportingAct might protect individuals from inaccurate practices in collecting their information, they can’t stop third parties from doing so. The only restrictions are those imposed by the federal government on itself – e.g. PrivacyActOf1974, RightToFinancialPrivacyAct. After all, the Constitution itself was never intended to protect individuals from the private sector.

Accordingly, it can be said that companies have acquired through their marketing technology the “right” to collect information of individuals. And Congress has simply confined itself to dictate the limits in which the collection and reporting of said information will be held. This should not be surprising if we consider it not to be in the government’s interest to outlaw private sector efforts of collecting information on individuals. Why? It is much less intrusive and bypasses the Fourth Amendment. Certainly, their stake in such information varies from immigration, fraud and terrorism purposes.

We can then say that the advocacy of privacy rights has turned into a game of “Spy vs. Spy”. If individuals are to protect and/or expand their privacy rights against the collection efforts of the private sector, they are to adopt and support the development of technologies that protect their information. Already, there seem to be a plethora of promising free software available or in development. For example, the use of encrypted communications – e.g. Secure Socket Layer – or other services – e.g. TrackMeNot, BetterPrivacy – are already available to protect Internet users from data profiling. Needless to say, individuals could also adopt practices that limit the voluntary sharing of personal information through social media.

By adopting such types of technologies and practices individuals will lay the groundwork for their privacy expectations when the time comes for Congress to address the challenges that cyberspace and technology will present it with in the new millennium.

“If you’ve done nothing wrong, you have nothing to hide.”

Domestic Spying

Against this backdrop, some concerns remain. Would improved privacy technology also serve to protect terrorists? If individuals have nothing to hide, giving up a little privacy in exchange for security does not seem too much of a sacrifice.

Of course, the caveat is that computers are far from perfect. More so, when they rely on human subjectivity. Computer data might be inaccurate and there are no limits on how the government might interpret it. Take for example the cases of Denise Mansfield or Michael Berry.

Having the government speculate upon the reasons of a particular search, purchase or trip represents a scary thought to our freedom. Individual citizens could be marked as pedophiles, stalkers, etc. without our knowing. Who knows, our behavior might even be used against us for employment purposes. So, where do we draw the line? Today we are spied on for the sake of terrorism. And tomorrow? Close watch over students of nuclear physics? Computer science? Or even citizens who are encrypting their communications for private purposes? It foreshadows the beginning of an Orwellian society.


In the years to come, our rights will be determined and/or secured by the technology we adopt. Waiting on government to enact privacy laws does not seem promising. First, it will not have the capacity to respond fast enough to its changes and it is not in its interest to have American citizens conceal all information about their lives. Second, it is easier to have third parties collect information on behalf of the government for commercial purposes. Once the information is out there, it is impossible to retrieve.

Therefore, the most dangerous surveillance seems to be the one being led by the private sector as they collect our information to advance their commercial interests. Thus, the focus of privacy advocates in developing better technology to secure privacy rights should not be on government, but on the private sector, which has fewer restrictions. Through the development and adoption of these technologies will they be able to lay the groundwork for their privacy expectations in the years to come.

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r2 - 11 Jan 2013 - 21:48:48 - IanSullivan
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