America Needs a Cyber Bill of Rights
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.
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.
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?