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The CISPA is back and it would eviscerate basic privacy rights here in the US. Specifically, it would:

--Grant broad legal immunity to companies who share users private information with the government;

--Authorize companies to disclose user data directly to the NSA, a secret governmental agency;

--Allow user's personal private information to be used for a range of purposes beyond computer and network security.

This is part of a war against the American people by corporate, government, and political interests. In other words, anything I say can be turned over to the government. The whole problem with this approach is that it ignores over 200 years of precedent affirming the right to privacy as a basic Constitutional right. And furthermore, laws of this nature open a back door to unintended consequences. Specifically, a corporation could blackmail a prospective whistleblower to keep silent in the face of wrongdoing or face the exposure of all their data to the NSA and risk facing terrorism charges in court. This is the sort of brave new world that the purveyors of this law would create.

In the face of these repeated corporate and governmental attacks against privacy, the words of Supreme Court Justice Arthur Goldberg, writing in the case Griswold vs. Connecticut, are very much relevant. While he was talking about marital privacy, his reasoning can just as easily be applied to other forms of privacy as well. He starts out by noting that although that right is not explicitly mentioned in the Constitution, the right to privacy thanks to the language and history of the 9th Amendment is within the protected penumbra of the specific guarantees of the Bill of Rights.

Specifically, he notes:

The Court stated many years ago that the Due Process Clause protects
those liberties that are "so rooted in the traditions and conscience of
our people as to be ranked as fundamental."  Snyder v. Massachusetts, 291 U.S. 7, 105. 
He quotes Meyer vs. Nebraska, which states as follows:

While this Court has not attempted to define with exactness the liberty
thus guaranteed, the term has received much consideration, and some of
the included things have been definitely stated.  Without doubt, it
denotes not merely freedom from bodily restraint, but also [for
example,] the right . . . to marry, establish a home and bring up
children. .
. .
This was a 1923 case in which the SCOTUS ruled that a state could not mandate english-only in the schools because it violated the 14th Amendment.

Goldberg then goes on to give a history of the 9th Amendment:

"The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." 
He then quotes Madison as follows:

It has been objected also against a bill of rights that, by enumerating
particular exceptions to the grant of power, it would disparage those
rights which were not placed in that enumeration, and it might follow,
by implication, that those rights which were not singled out were
intended to be assigned into the hands of the General Government, and
were consequently insecure.  This is one of the most plausible arguments
 I have ever heard urged against the admission of a bill of rights into
this system, but I conceive that it may be guarded against.  I have
attempted it, as gentlemen may see by turning to the [p490] last clause of the fourth resolution [the Ninth Amendment].
 In other words, without the 9th Amendment, it doesn't do any good to have the first eight. To do without the 9th would have invited tyrants to figure out other ways of denying and disparaging the rights of the people. That is why the 9th was meant to be a safeguard.

Goldberg continues:

To hold that a right so basic and fundamental and so deep-rooted in our
 society as the right of privacy in marriage may be infringed because
that right is not guaranteed in so many words by the first eight
amendments to the Constitution is to ignore the Ninth Amendment,
 and to give it no effect whatsoever.  Moreover, a judicial construction
 that this fundamental right is not protected by the Constitution
because it is not mentioned in explicit terms by one of the first eight
amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that [p492] "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
We hold that the right to privacy regarding one's personal information is a right that is basic, fundamental, and deep-rooted if we apply Goldberg's logic here. If you don't believe me, then Google up "Identity Theft." The very first page is full of products, services, websites, and information about identity theft. The Federal Trade Commission defines Identity Theft as "Stealing information without your permission." In other words, the right to privacy regarding one's own personal information is fundamental if others require your permission before using it.

And incidentally, this brings up another possible unintended consequence if CISPA becomes law -- more people get hold of your personal private information in the course of their work. The more people that get their hands on your personal private information, the more likely that it will fall into the wrong hands. In other words, CISPA encourages Identity Theft even though it purports to enhance security. In other words, what is there to stop some unscrupulous person from getting a job managing personal private information and then selling it to the black market for a lot of money?

Goldberg then goes on to explain the limits of the 9th Amendment:

In determining which rights are fundamental, judges
are not left at large to decide cases in light of their personal and
private notions.  Rather, they must look to the "traditions and
[collective] conscience of our people" to determine whether a principle
is "so rooted [there] . . . as to be ranked as fundamental."  Snyder v. Massachusetts, 291 U.S. 97, 105.  The inquiry is whether a right involved
is of such a character that it cannot be denied
without violating those "fundamental principles of liberty and justice
which lie at the base of all our civil and political institutions." . . .

Powell v. Alabama, 287 U.S. 45,
 67.  "Liberty" also "gains content from the emanations of . . .
specific [constitutional] guarantees," and "from experience with the
requirements of a free society."  Poe [p494] v. Ullman, 367 U.S. 497, 517 (dissenting opinion of MR. JUSTICE DOUGLAS). [n7]
So what do freedom of speech, freedom of the press, the right of protection against illegal searches and seizures, and freedom of religion all have in common? Privacy. In other words, it is none of the government's business what church you go to or what you say or what you write. These basic rights are part of our collective conscience.

Goldberg then goes on to argue against the dissidents' view:

The logic of the dissents would sanction federal or state legislation
that seems to me even more plainly unconstitutional than the statute
before us.  Surely the Government, absent a showing of a compelling
subordinating state interest, could not decree that all husbands and
wives must be sterilized after two children have been born [p497]
 to them.  Yet, by their reasoning, such an invasion of marital privacy
would not be subject to constitutional challenge, because, while it
might be "silly," no provision of the Constitution specifically prevents
 the Government from curtailing the marital right to bear children and
raise a family.
The same logic is being used by the proponents of the CISPA. Their logic is that since there is nothing specific in the Constitution against passing on one's personal private information to the government, they can pass such a law. But the Constitution was never meant to be interpreted in such a wooden legalistic manner. In fact, the 9th Amendment was specifically designed against such thinking that leads to monstrosities like the CISPA.

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Comment Preferences

  •  We need (1+ / 0-)
    Recommended by:
    Eternal Hope

    a Constitutional Convention.  Every nation on earth has revised and revisited their fundamental legal structure more recently than we have, and despite its much-vaunted flexibility, our Constitution was never designed to function in the 20th century, let alone the 21st.  Until we address the issues that have been raised by social and technological changes in the last three centuries, we will be forever at the mercy of powerful interests, both public and private, which specifically take advantage of the "lack of enumeration" of basic rights which were unquestioned before piss-testing could determine what you had for dinner or a single piece of hair at the crime scene could definitively identify an individual who was present, or a conversation could be conducted between New York and California in realtime.  New technologies have left us open to levels of observation and coercion the Founders could never have dreamed of, and our Constitution offers little or no protection from them, at the same time as preserving a relic of life in the middle of an ongoing invasion by enshrining the unlimited personal ownership of deadly weapons.

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