Index: [thread] [date] [subject] [author]
  From: Alexander Rosemberg <ar2308@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Fri, 11 Mar 2005 08:53:32 -0600

Paper 1: THE NINTH AMENDMENT AND PERSONAL DATA RIGHTS


--Apple-Mail-5--898373583
Content-Transfer-Encoding: quoted-printable
Content-Type: text/plain;
	charset=ISO-8859-1;
	format=flowed

THE NINTH AMENDMENT AND PERSONAL DATA RIGHTS

By Alexander Rosemberg-Holcblat

=A0

--Apple-Mail-5--898373583
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=ISO-8859-1

<fontfamily><param>Garamond</param>THE NINTH AMENDMENT AND PERSONAL
DATA RIGHTS


By Alexander Rosemberg-Holcblat


=A0

</fontfamily>=

--Apple-Mail-5--898373583--


--Apple-Mail-6--898373582
Content-Transfer-Encoding: quoted-printable
Content-Type: text/plain;
	charset=WINDOWS-1252;
	format=flowed

The information age has brought with it one major problem that we=20
didn=92t use to have. We now not only leave a physical trace in the =
world=20
as we move through it, but also have a digital one. People request or=20
appropriate pieces of our personal information at every step we take.=

--Apple-Mail-6--898373582
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=WINDOWS-1252

<fontfamily><param>Garamond</param>The information age has brought
with it one major problem that we didn=92t use to have. We now not only
leave a physical trace in the world as we move through it, but also
have a digital one. People request or appropriate pieces of our
personal information at every step we take.</fontfamily>=

--Apple-Mail-6--898373582--


--Apple-Mail-7--898373582
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

That information can be aggregated and therefore mined to produce 
inferences. If the information is handled 
--Apple-Mail-7--898373582
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>That information can be aggregated
and therefore mined to produce inferences. If the information is
handled </fontfamily>
--Apple-Mail-7--898373582--


--Apple-Mail-8--898373581
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

accurately, 
--Apple-Mail-8--898373581
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>accurately, </fontfamily>
--Apple-Mail-8--898373581--


--Apple-Mail-9--898373581
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

the inferences made of it could also turn out to be right.There are now 
programs that tend to make the elaboration of those inferences seem 
effortless, some would say even perfect.
--Apple-Mail-9--898373581
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>the inferences made of it could
also turn out to be right.There are now programs that tend to make the
elaboration of those inferences seem effortless, some would say even
perfect.</fontfamily>
--Apple-Mail-9--898373581--


--Apple-Mail-10--898373580
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

Yet, things go wrong. People go wrong and people programming computers 
can make mistakes that in turn make those computers make mistakes.
--Apple-Mail-10--898373580
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>Yet, things go wrong. People go
wrong and people programming computers can make mistakes that in turn
make those computers make mistakes.</fontfamily>
--Apple-Mail-10--898373580--


--Apple-Mail-11--898373579
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

Moreover, such personal data can be said to be in use indistinctly by 
both government and private parties.
--Apple-Mail-11--898373579
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>Moreover, such personal data can be
said to be in use indistinctly by both government and private parties.</fontfamily>
--Apple-Mail-11--898373579--


--Apple-Mail-12--898373578
Content-Transfer-Encoding: quoted-printable
Content-Type: text/plain;
	charset=WINDOWS-1252;
	format=flowed

The same data sets serve both sectors and therefore if a mistake is=20
made on one end, it may end up costing us dearly on both. All of what=20
I=92ve been describing is topped by recent identity theft scandals=20
concerning major data brokers such as Choice Point and Lexis.


--Apple-Mail-12--898373578
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=WINDOWS-1252

<fontfamily><param>Garamond</param>The same data sets serve both
sectors and therefore if a mistake is made on one end, it may end up
costing us dearly on both. All of what I=92ve been describing is topped
by recent identity theft scandals concerning major data brokers such
as Choice Point and Lexis.=20


</fontfamily>=

--Apple-Mail-12--898373578--


--Apple-Mail-13--898373577
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

The question that arises then is: What is the legal system to do? What 
protections should be afforded to the general population? And what 
rights of action should be guaranteed to protect the people?
--Apple-Mail-13--898373577
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>The question that arises then is:
What is the legal system to do? What protections should be afforded to
the general population? And what rights of action should be guaranteed
to protect the people?</fontfamily>
--Apple-Mail-13--898373577--


--Apple-Mail-14--898373577
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

Recent outcry has prompted Congress to move towards enacting 
legislationon the matter, and yet, I sustain that this legislative 
approach could end up leaving us as we were, without a solution.
--Apple-Mail-14--898373577
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>Recent outcry has prompted Congress
to move towards enacting legislationon the matter, and yet, I sustain
that this legislative approach could end up leaving us as we were,
without a solution.</fontfamily>
--Apple-Mail-14--898373577--


--Apple-Mail-15--898373576
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

My proposition here is that there might be no need to resort to 
legislation on the matter because there exists, if correctly 
interpreted, enough protection in the Constitution to deal with the 
issues that the problem posses.


--Apple-Mail-15--898373576
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>My proposition here is that there
might be no need to resort to legislation on the matter because there
exists, if correctly interpreted, enough protection in the
Constitution to deal with the issues that the problem posses. 


</fontfamily>
--Apple-Mail-15--898373576--


--Apple-Mail-16--898373575
Content-Transfer-Encoding: base64
Content-Type: text/plain;
	charset=ISO-8859-1;
	format=flowed

oA==

--Apple-Mail-16--898373575
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=ISO-8859-1

<fontfamily><param>Garamond</param>=A0</fontfamily>=

--Apple-Mail-16--898373575--


--Apple-Mail-17--898373575
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

The Ninth Amendment has been greatly underutilized to ensure the 
protection of Americans against this type of abuses, yet if coupled 
with the Fourth Amendment, we might end up finding that there is 
limited need for legislation
--Apple-Mail-17--898373575
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>The Ninth Amendment has been
greatly underutilized to ensure the protection of Americans against
this type of abuses, yet if coupled with the Fourth Amendment, we
might end up finding that there is limited need for legislation</fontfamily>
--Apple-Mail-17--898373575--


--Apple-Mail-18--898373574
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

.However, we must first analyze if the Ninth Amendment is susceptible 
of being expanded this way as to allow forsuch protection. Mainly 
because of two objections that might be posed against our proposition, 
the first of which would be how to extend constitutional guarantees to 
acts carried out by private
--Apple-Mail-18--898373574
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>.However, we must first analyze if
the Ninth Amendment is susceptible of being expanded this way as to
allow forsuch protection. Mainly because of two objections that might
be posed against our proposition, the first of which would be how to
extend constitutional guarantees to acts carried out by private</fontfamily>
--Apple-Mail-18--898373574--


--Apple-Mail-19--898373574
Content-Transfer-Encoding: quoted-printable
Content-Type: text/plain;
	charset=WINDOWS-1252;
	format=flowed

individuals, and the second how do we actually go about expanding the=20
rights conceived in the Fourth Amendment, through the Ninth Amendment,=20=

when the Supreme Court has been so reluctant to =93find=94 the rights=20
reserved by the people in the Constitutional body of law.


--Apple-Mail-19--898373574
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=WINDOWS-1252

<fontfamily><param>Garamond</param>individuals, and the second how do
we actually go about expanding the rights conceived in the Fourth
Amendment, through the Ninth Amendment, when the Supreme Court has
been so reluctant to =93find=94 the rights reserved by the people in the
Constitutional body of law.=20


</fontfamily>=

--Apple-Mail-19--898373574--


--Apple-Mail-20--898373572
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

With respect to the first question, a possible answer might be that 
since the lines have blurred so much between private and public actors, 
and since the government has been procuring progressively more of the 
collaboration from private parties in order to be able to execute its 
duties under statutes such as the Patriot Act, 
--Apple-Mail-20--898373572
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>With respect to the first question,
a possible answer might be that since the lines have blurred so much
between private and public actors, and since the government has been
procuring progressively more of the collaboration from private parties
in order to be able to execute its duties under statutes such as the
Patriot Act, </fontfamily>
--Apple-Mail-20--898373572--


--Apple-Mail-21--898373572
Content-Transfer-Encoding: quoted-printable
Content-Type: text/plain;
	charset=ISO-8859-1;
	format=flowed

then they can be said to be agents of the State and their actions=20
harming private individuals subject to constitutional scrutiny.=A0


--Apple-Mail-21--898373572
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=ISO-8859-1

<fontfamily><param>Garamond</param>then they can be said to be agents
of the State and their actions harming private individuals subject to
constitutional scrutiny.=A0


</fontfamily>=

--Apple-Mail-21--898373572--


--Apple-Mail-22--898373571
Content-Transfer-Encoding: quoted-printable
Content-Type: text/plain;
	charset=WINDOWS-1252;
	format=flowed

The second hurdle is certainly the focus of our attention here, for how=20=

can we find a constitutional personal data right within the =93non-=20
enumerated=94 rights contemplated in the Ninth Amendment? Taken that the=20=

Supreme Court hasn=92t touched on the issue of Ninth Amendment=20
interpretation since Griswold=

--Apple-Mail-22--898373571
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=WINDOWS-1252

<fontfamily><param>Garamond</param>The second hurdle is certainly the
focus of our attention here, for how can we find a constitutional
personal data right within the =93non- enumerated=94 rights contemplated
in the Ninth Amendment? Taken that the Supreme Court hasn=92t touched on
the issue of Ninth Amendment interpretation since Griswold</fontfamily>=

--Apple-Mail-22--898373571--


--Apple-Mail-23--898373570
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

,which came into being in 1965, and it did so not directly interpreting 
the Ninth Amendment, but rather interpreting substantive due process 
rights, it becomes increasingly hard to ascertain what the correct 
interpretation of the rights potentially included under the umbrella of 
that part of the Constitution might be.


--Apple-Mail-23--898373570
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>,which came into being in 1965, and
it did so not directly interpreting the Ninth Amendment, but rather
interpreting substantive due process rights, it becomes increasingly
hard to ascertain what the correct interpretation of the rights
potentially included under the umbrella of that part of the
Constitution might be. 


</fontfamily>
--Apple-Mail-23--898373570--


--Apple-Mail-24--898373570
Content-Transfer-Encoding: quoted-printable
Content-Type: text/plain;
	charset=WINDOWS-1252;
	format=flowed

Still, legal scholars led by Charles Black have proposed that a number=20=

of techniques of legal interpretation might effectively enable us to=20
interpret just what is supposed to be included within the referred to=20
umbrella. Black=92s main submission is that if we didn=92t apply to the=20=

Ninth Amendment the rules through which we usually ascertain what the=20
meaning of the law in the common law is,=

--Apple-Mail-24--898373570
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=WINDOWS-1252

<fontfamily><param>Garamond</param>Still, legal scholars led by
Charles Black have proposed that a number of techniques of legal
interpretation might effectively enable us to interpret just what is
supposed to be included within the referred to umbrella. Black=92s main
submission is that if we didn=92t apply to the Ninth Amendment the rules
through which we usually ascertain what the meaning of the law in the
common law is,</fontfamily>=

--Apple-Mail-24--898373570--


--Apple-Mail-25--898373569
Content-Transfer-Encoding: 7bit
Content-Type: text/plain;
	charset=US-ASCII;
	format=flowed

then we would positively be doing precisely what the constitutional 
amendment precludes us from doing, that is, we would be denying or 
disparaging those rights that were retained by the people. He also 
tells us that the Amendment is there because the framers knew they were 
imperfect drafters. 
--Apple-Mail-25--898373569
Content-Transfer-Encoding: 7bit
Content-Type: text/enriched;
	charset=US-ASCII

<fontfamily><param>Garamond</param>then we would positively be doing
precisely what the constitutional amendment precludes us from doing,
that is, we would be denying or disparaging those rights that were
retained by the people. He also tells us that the Amendment is there
because the framers knew they were imperfect drafters. </fontfamily>
--Apple-Mail-25--898373569--


--Apple-Mail-26--898373568
Content-Transfer-Encoding: quoted-printable
Content-Type: text/plain;
	charset=WINDOWS-1252;
	format=flowed

They also knew that social conditions change over time; therefore we=20
should rely on the values protected at the core of the constitutional=20
system to adjust the enumeration and protection of rights.

As briefly stated, my main contention is that in light of our concerns=20=

towards effective protection of privacy rights, an expansion of the=20
wording of the fourth amendment through this type of interpretation=20
could be a plausible solution to make personal data rights a matter of=20=

right and not just a matter of compensation, insurance or monetary=20
value in general. Under an ideal scheme it would give personhood the=20
right to action in pursuance of the data that it=92s connected to it,=20
entailing specially the obligation of diligence in the maintenance of=20
data and the right to request correction and erasure of personal data.=20=

I do recognize that this would entail crafting litigation around=20
specific performance of obligations, which is only granted in the=20
common law on a very specific and limited basis. However, I do believe=20=

that solutions have to be tailored to the problems they are solving,=20
and if what it takes to protect people against unreasonable collection,=20=

use and in general exploitation, then so be it.

I don=92t foresee my suggested solutions being adopted any time soon, in=20=

part because of a lack of political will and in part due to judicial=20
reluctance to undertake effective progressive interpretations of the=20
meaning and content of the Ninth Amendment. This isn=92t likely to =
happen=20
even in cases, as we have proposed, of holistic interpretation of the=20
Constitution within its existent wording. What is likely to happen,=20
much to our dislike, is that ineffective legislation will be enacted=20
protecting political and economic interests to the detriment of the=20
people whose retained rights are supposed not to be denied or=20
disparaged.

=A0

Reference:

Charles L. Black, Jr. On reading and using the Ninth Amendment in: The=20=

Humane Imagination. OX Box Press. 1986.

Samuel J. Levine. Identifying Unenumerated Constitutional Human Rights=20=

And Unenumerated Biblical Obligations: A Comparative Study.=20
http://www.vincenter.org/98/levine.htm


--Apple-Mail-26--898373568
Content-Transfer-Encoding: quoted-printable
Content-Type: text/enriched;
	charset=WINDOWS-1252

<fontfamily><param>Garamond</param>They also knew that social
conditions change over time; therefore we should rely on the values
protected at the core of the constitutional system to adjust the
enumeration and protection of rights.=20


As briefly stated, my main contention is that in light of our concerns
towards effective protection of privacy rights, an expansion of the
wording of the fourth amendment through this type of interpretation
could be a plausible solution to make personal data rights a matter of
right and not just a matter of compensation, insurance or monetary
value in general. Under an ideal scheme it would give personhood the
right to action in pursuance of the data that it=92s connected to it,
entailing specially the obligation of diligence in the maintenance of
data and the right to request correction and erasure of personal data.
I do recognize that this would entail crafting litigation around
specific performance of obligations, which is only granted in the
common law on a very specific and limited basis. However, I do believe
that solutions have to be tailored to the problems they are solving,
and if what it takes to protect people against unreasonable
collection, use and in general exploitation, then so be it.=20


I don=92t foresee my suggested solutions being adopted any time soon, in
part because of a lack of political will and in part due to judicial
reluctance to undertake effective progressive interpretations of the
meaning and content of the Ninth Amendment. This isn=92t likely to
happen even in cases, as we have proposed, of holistic interpretation
of the Constitution within its existent wording. What is likely to
happen, much to our dislike, is that ineffective legislation will be
enacted protecting political and economic interests to the detriment
of the people whose retained rights are supposed not to be denied or
disparaged.=20


=A0


Reference:


Charles L. Black, Jr. On reading and using the Ninth Amendment in: The
Humane Imagination. OX Box Press. 1986.=20


Samuel J. Levine. Identifying Unenumerated Constitutional Human Rights
And Unenumerated Biblical Obligations: A Comparative Study.
http://www.vincenter.org/98/levine.htm


</fontfamily>=

--Apple-Mail-26--898373568--


-----------------------------------------------------------------
Computers, Privacy, and the Constitution mailing list



Index: [thread] [date] [subject] [author]