From: Alexander Rosemberg Holcblat <ar2308@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Fri, 11 Mar 2005 10:12:47 -0500

Paper 1: THE NINTH AMENDMENT AND PERSONAL DATA RIGHTS

Apparently my Apple mail client misbehaved and the format came out
all wrong even though I instructed it to send on .rtf. Sorry about
that.

Alex


THE NINTH AMENDMENT AND PERSONAL DATA RIGHTS


By Alexander Rosemberg-Holcblat

The information age has brought with it one major problem that we
didn’t 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. That information can be aggregated and therefore
mined to produce inferences. If the information is handled
accurately, 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. Yet,
things go wrong. People go wrong and people programming computers
can make mistakes that in turn make those computers make mistakes.
Moreover, such personal data can be said to be in use indistinctly
by both government and private parties. 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’ve been describing
is topped by recent identity theft scandals concerning major data
brokers such as Choice Point and Lexis.

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?
Recent outcry has prompted Congress to move towards enacting
legislation on the matter, and yet, I sustain that this legislative
approach could end up leaving us as we were, without a solution. 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.

 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. However, we must first analyze if the
Ninth Amendment is susceptible of being expanded this way as to
allow for such 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 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
“find” the rights reserved by the people in the Constitutional body
of law.

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

The second hurdle is certainly the focus of our attention here, for
how can we find a constitutional personal data right within the
“non- enumerated” rights contemplated in the Ninth Amendment? Taken
that the Supreme Court hasn’t touched on the issue of Ninth
Amendment interpretation since Griswold, 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.

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’s main submission is that if we
didn’t apply to the Ninth Amendment the rules through which we
usually ascertain what the meaning of the law in the common law is,
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. 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.

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’s 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.

I don’t 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’t 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.

Reference:

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

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




-- 
"I do not beleive that god plays dice with the world, do you?"
A. Einstein

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