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Is it time for a digital Bill of Rights?

Protecting ourselves from our own technology

Like many of you, I have been following the whole NSA/Prism/Snowden story since it first broke. While I wasn't naive enough to think that something like this was not going on (sorry for the double negative there), the shear scope of the operation has shaken my faith in our government to its roots. I don't necessarily think that what has happened to date is the worst it could be, either. I think, in fact, that with this precedent the potential for abuse is much worse. But that doesn't mean I am happy with it even now.

Like performance enhancing drugs in sports, I firmly believe that if the means exists, someone, somewhere will abuse it. It happens in sports, it will happen in science and it will happen with abusing technology. The question is will enough people view this potential abuse as important enough to say and do something about it.

That, for me, is the crux of the issue. My friend Brad Feld wrote a post in his blog the other day about Lavabit closing down and the FBI visiting a hacker house in Kansas City. Brad has a voice in our industry that is heard louder and over many others, but this is what he said about it:

We are just beginning to understand - and struggle with - the crossover of humans and technology. When you ponder the NSA, it's starting to feel like a giant computer run by humans, where the computer dominates and the humans are just the mechanics. Sure - the humans want to feel like the ones who are actually running things, but it doesn't take much imagination to see this evolving along the same lines as Battlestar Galactica.

I accepted a long time ago that I had no actual privacy - that all of my data was being captured somewhere. I gave a talk at my 20th business school reunion in 2008 where I stated directly that "we no longer had any privacy." But it's getting worse - fast. Even if we work hard to have privacy, as in using Lavabit to send email, the government can still break through this privacy, or force the service to shut down.

I'm fascinated by all of this. Not scared - fascinated. It's easy to be cynical, or scared, or angry. But our civilization is going to evolve in very strange and radical ways over the next twenty years. Hang on - it's going to be a crazy ride.

Later on in a response to a comment, Brad writes: "I have a hard time taking a "real stance" since I feel helpless to actually do anything."

Do we have a right to privacy? Should we not be upset by what we are seeing in the news everyday? Just because we feel powerless, should that stop us from taking a real stance? These are all important questions that we should ask ourselves.

There are many who agree with Brad that we have no actual privacy anymore. Somehow, we traded privacy for the privilege of living in this magical digital age where so much information and communication is available to us. But there are many others who disagree. They think our privacy is an inalienable right, like the rights to liberty and the pursuit of happiness.

I firmly believe that we have a right to privacy. However, we need to be clear about what we retain of that right. We can't put all of our private information up on public forums and then complain when it becomes public knowledge. But communications that are not meant for public forums should be private and remain so without due process of law.

What I struggle with is whether or not our current laws are sufficient to protect us. Is it simply a matter of repealing the Patriot Act and similar statutes and just rolling back the clock? I don't think it is that easy. I think the genie is out of the bottle. In fact I don't think it is a Patriot Act thing at all. The technology is just too readily available and too alluring not to be used. Without specific safeguards in place, we cannot be free from the specter of abuse trampling all over our right to privacy of communications.

What is needed is a new "digital bill of rights." Something that clearly spells out what expectations of privacy we might have in our digital communication. Something that sets a high-enough bar before a government or even a private organization can violate our legitimate rights of privacy.

While the founding fathers of our nation were forward-thinking individuals, I don't think they envisioned a time of an Internet allowing the free flow of information and communication as we have today, along with the potential for governments or others to spy on our own citizens.

People who don't speak out because they feel powerless are not exempt or immune. Whether powerless or not, failing to speak out is akin to standing idly by while some dictator performs crimes against humanity. I don't mean to be melodramatic here, but it is the duty of every single one of us who is appalled at the potential for abuse here to speak up and demand reform.

It is going to take each and every one of us to do so, but otherwise how we can ever be safe in our own country to have protected communication?

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