28th Amendment
The state and federal governments, in furtherance of the existing bill of rights and other creeds, shall not infringe on the rights of the people to encrypt own data and effects.
Amendment V assures rights for accused people and guards against self-incrimination. The proposed 28th Amendment (above) will ensure that people are free to use any form of technology to encrypt their own data and effects. It is on realization that data and effects of individuals are private property, and their security is guaranteed under and consistent with other provisions of privacy in the constitution.
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The United States Constitution does not explicitly set out privacy rights. Its rightful interpretation is subject to the whims of the reader. The reader has to read the individual parts touching on privacy together to reach a better conclusion. Privacy is now a concern for many people because of their uptake of pervasive technologies and need for security. Precedent-setting cases of Meyer v Nebraska (1923), Griswold v Connecticut (1965), Stanley v Georgia (1969), Ravin v State (1975), Kelley v Johnson (1976), Moore v East Cleveland (1977), Cruzan v. Missouri Dep't. of Health (1990), and Lawrence v Texas (2003) have all shown that privacy does not feature much in the constitution. These cases touched on education, health, death, searches and seizures, personal space and religion (Tran, 2015).
Privacy is a wide topic; there is privacy of an individual’s sexuality, physical security, privacy of a home, car, or office, privacy of communication, health, education, and many other areas of social life. As such, the Bill of Rights is read with the Constitution. The following provisions in both documents relate to privacy: Amendment I (Privacy of Beliefs), Amendment III (Privacy of the Home), Amendment IV (Privacy of the Person and Possessions), Amendment IX (General Protection for Privacy), and Liberty Clause of the Fourteenth Amendment (Rossum & Tarr, 2010).
When read together, Amendments IV and V guards against incursions of the inviolabilities of an individual’s home and privacies of life. They both guarantee the place of an individual’s spiritual being, feelings, and mind. Amendment IV secures against intrusion, search, and seizure of individual places without reasonable warrant and description of targeted persons, place, and items. The proposed amendment will ensure the privacy of data owned and held by individuals (Flaherty, 2014).
As the country’s future is data-driven and decisions made on data, it is important to guard against any infringements on privacy of data for any purpose. Data mining is driving policy and competition, and it is only fair that there is a law in place to protect against unlawful access and retrieval of data held and owned by individuals. The governments will use all means to collect data but cannot do so by invading the privacy of individual’s data. On the other hand, individuals are free to use any form of encryption, and the government has no right to force individuals to decrypt own data (Flaherty, 2014).
The proposed amendment will reinforce the Amendment IV and V by explicitly giving the people the right to protect data in their lawful custody from being seized or accessed by government or any other entity. The understanding is that any data and effects created and owned by individuals are extensions to such those individuals. Any infringement means that the privacies of those individuals have been violated. Therefore, the proposed amendment reinforces other prior amendments on privacy.
References
Flaherty, D. H. (2014). Protecting privacy in surveillance societies: The federal republic of Germany, Sweden, France, Canada, and the United States . New York: UNC Press Books.
Rossum, R. A., & Tarr, G. A. (2010). American Constitutional Law, Volume 2: The Bill of Rights and Subsequent Amendments . Boulder: Westview Press.
Tran, J. L. (2015). The Right to Attention. Indiana Law Journal , 91, 1023-2016.
