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How Can We Fix the Constitution?


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Amending the Constitution to protect informational privacy.

Over the next few weeks, some of Slate’s favorite legal eagles will propose their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here’s a fix for the right to a jury trial and the protection against excessive bail, and below is Adam Cohen’s addition to the Fourth Amendment.

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Former Director of National Intelligence John Negroponte in the Threat Operations Center of the National Security Agency

Photo by PAUL J.RICHARDS/AFP/Getty Images.

Informational Privacy (Fourth Amendment)

When the National Security Agency spying scandal broke in 2005, it revealed that the government was engaged in a sweeping program of surveillance of its own citizens. As technology advances, the ability of the government to spy on ordinary Americans is growing rapidly. The government has sophisticated methods of intercepting phone calls and Internet traffic. And the FBI has just told Congress it wants to expand its ability to monitor Web-based communications, including Facebook and Twitter, in part by requiring these services to build special "back doors" for the government to use for monitoring. We are also being observed every day by spy cameras, throughout major cities and suburban shopping malls. The public has no way of knowing how much information the government is collecting and what it is being used for.

At the same time, private corporations are collecting an enormous amount of data. Internet advertising companies are tracking what websites people go to. Email companies are storing our email for years. Phone companies, through our cellphones, have elaborate records of where we have been on an hour-by-hour basis. This data is currently in private hands, but it is not hard for the government to get much of it, either with a subpoena or through a simple request. One of the biggest revelations of the NSA spying scandal was the degree to which government and the private sector were quietly working together.

We are creeping toward an Orwellian, all-knowing state. The dossiers aren’t collected by armies of secret police, as in the old Soviet Union, but rather through mass technological surveillance and data aggregation by the government and the private sector.

The Constitution does not have an express protection for privacy. The Fourth Amendment covers some aspects of privacy, but it is woefully inadequate. A gaping hole is the Supreme Court’s 1976 holding, in United States v. Miller, that the Fourth Amendment does not protect information people have voluntarily given to third parties, such as bank records. In the digital age, most of us have a great deal of information—including years of emails and location records from our cellphones—in the hands of private companies. This stored data is likely to be constitutionally unprotected. Street cameras may also be beyond the reach of the Fourth Amendment, since they record our actions in a public place.

It would be nice to think that informational privacy could be protected through legislation, but Congress has been unwilling to pass a comprehensive privacy law. Opposition from large technology companies, which make a great deal of their money from harvesting data, has successfully blocked efforts to enact even a weak law.

Informational privacy is a right that belongs in the Constitution. Because assessments about what reasonably should be private are not easy to draw—and because it is a constitutional provision—my proposal is broadly drawn: “The people’s right to privacy in their data and communications shall not be abridged.”

As with protections like freedom of speech and of religion, it would be up to the courts to give it full effect.

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