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Opening Arguments

Internet rights

Digital-age common sense from the New York Times op-ed page:

FROM the streets of Tunis to Tahrir Square and beyond, protests around the world last year were built on the Internet and the many devices that interact with it. Though the demonstrations thrived because thousands of people turned out to participate, they could never have happened as they did without the ability that the Internet offers to communicate, organize and publicize everywhere, instantaneously.

It is no surprise, then, that the protests have raised questions about whether Internet access is or should be a civil or human right. The issue is particularly acute in countries whose governments clamped down on Internet access in an attempt to quell the protesters. In June, citing the uprisings in the Middle East and North Africa, a report by the United Nations' special rapporteur went so far as to declare that the Internet had “become an indispensable tool for realizing a range of human rights.” Over the past few years, courts and parliaments in countries like France and Estonia have pronounced Internet access a human right.

But that argument, however well meaning, misses a larger point: technology is an enabler of rights, not a right itself. There is a high bar for something to be considered a human right. Loosely put, it must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things. For example, at one time if you didn't have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse. Today, if I were granted a right to have a horse, I'm not sure where I would put it.

The proliferation of all sorts of "rights" is, unfortunately, the effort of choice among progressives today. President Obama has even said our Constitution is flawed because it grants only negative rights -- things the government cannot do to us, like commit torture or deny us freedom of conscience -- instead of positive rights (things government can give us, such as health care and housing). But the more we blur the distinction between true rights -- which we must fiercely keep government from infringing -- and privileges, which the government may grant or withhold at its whim -- the less free we are.

Meanwhile, on the cutting edge of Fifth Amendment debate in the Internet era:

Beyond the log-in screen of Ramona Fricosu's laptop computer lies what federal prosecutors say could be the key evidence in the bank-fraud case against her.

There's only one problem: Prosecutors don't know her password.

Thus, in an extraordinarily rare move, prosecutors in Denver are seeking a court order forcing Fricosu to unlock the computer so that they can obtain files they would use to try to convict her and her ex-husband.

Civil-liberties groups nationwide have taken notice, saying the case tests the strength of rights against self-incrimination in a digital world. Prosecutors, meanwhile, say that allowing criminal defendants to beat search warrants simply by encrypting their computers would make it impossible to obtain evidence in an age when clues are more likely held within a hard drive than a file cabinet.

[. . .]

The Fifth Amendment protects people from being forced to be a witness against themselves in a criminal proceeding. But its protections are not unlimited.

The debate, then, is about which pre-decided scenario this new situation fits into. Is a computer password like a key to a lockbox, as the government argues? Or is it akin to a combination to a safe, as Fricosu's attorneys say?

While the key is a physical thing and not protected by the Fifth Amendment, the Supreme Court has said, a combination — as the "expression of the contents of an individual's mind" — is.

If Blackburn treats Fricosu's password like a key, "the meaning of 'search warrant' will be stretched and the rights to privacy and against self-incrimination shrunk," Fricosu's attorney, Philip Dubois, wrote in a court filing.

I'd go with "combination" rather than "key." Otherwise the government could require us to assist in our own prosecutrion. Nothing more profound than that to say, but these kinds of issues are going to keep cropping up, and we need to pay attention to them.


Harl Delos
Fri, 01/06/2012 - 12:15am

Good call.