The Transparency Amendment: The Under-appreciated Sixth

Transparency and a growing web of surveillance are again in the news,
starting with an interview I just gave ZDNet in Britain, discussing
the recent use of streetcams to identify rioters and moving on from
there to many broader topics, comparing a world dominated by “Big Brother” to one oppressed by several billion “little brothers.”

A core point from my book The Transparent Society – is that there will be no escaping surveillance. The cameras get smaller, faster, better, cheaper and more numerous at a pace exceeding Moore’s Law. (Brin’s Corollary)

Trying to pretend this isn’t happening, or that well-intentioned laws have blinded the mighty, will only prevent us from getting sousveillance, the power to look back.  I imagine that will be an issue in the show at some point, as the “Machine” ruthlessly evades any possibility of eyes looking back at it.  We’ll be watching.

== THE BASIC RIGHT TO LOOK BACK ==

All of this is related to one of my principal topics. A week or two ago I was crowing victory, in the Federal court case that ruled in favor of citizens recording their encounters with police. Now this is reinforced as an Illinois judge recently ruled the state’s eavesdropping law unconstitutional as applied to a man who faced up to to 75 years in prison for secretly recording his encounters with police officers and a judge. “Such action impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information,” he wrote.

Let me qualify my fervent support for these decisions. I think both rulings put too much emphasis on the First Amendment “press” freedom aspect, and too little on the 6th Amendment’s declaration of an absolute right of citizen access to testimony that might exonerate – in other words, using the core weapon of the Truth to protect against abuse of authority and power. Let me be plain, I find the first Amendment so heavily used that it becomes squishy, amorphous, in many cases rather unreliable.

I often find I have to remind people that the 6th — the “forgotten Amendment” — is actually one of the most important and powerful of them all! It is the transparency amendment, making clear that our real bulwark of freedom is not the passive, hunkering “right to remain silent” or even the blustery right to speak….

….but the aggressively assertive right to “compel testimony” on our behalf, even from reluctant witnesses. The logical extension of this to a universal ability to record our interactions with authority is direct and logical and vital…

…and I hope some attorneys make this point about the Sixth Amendment soon, instead of staring only at the First.

Still, whatever basis is given, the ruling clearly established the core point of law we all needed… that is, till the Supreme Court does its thing. Do any of you still have faith that Justices Scalia, Thomas and Roberts are on our side?  I remain hopeful, ever.

Let there be no mistake, this issue is still fragile! “Judge Richard A. Posner isn’t known  for his genteel treatment of parties whose arguments he doesn’t agree with. When an attorney for the American Civil Liberties Union began to make his opening statement at a Tuesday oral argument, Posner cut him off after 14 words. “Yeah, I know,” he said dismissively. “But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police….Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

I’ve met Justice Posner and argued with him about this before.  He is a very smart fellow. Alas. I hope that he can learn to see with 21st Century eyes.

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4 Comments

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4 responses to “The Transparency Amendment: The Under-appreciated Sixth

  1. I’m with you on this David. Who shall watch the guardians? The people.

  2. At present, Witness.org looks like the go to place for acting on this. Most recently, “… video advocacy non-profit Witness.org used the ACLU’s montage of protest footage from Puerto Rico as an example of effective video advocacy on its blog. The post dissects how the video contributed to the ACLU’s larger effort to bring awareness to police brutality and other civil rights abuses…”
    http://www.aclu.org/blog/free-speech-human-rights/aclu-police-brutality-video-showcased-witnessorg
    Parenthetically, “Justice” Posner knows precisely what he’s doing.

  3. Bytowner

    Mildly surprised at the relative lack of comment on the Sixth Amendment point.

  4. David: The 8th Amendment interpretation has merit, but it needs currency. Currency for a little-known interpretation of the Constitution could come from a popular movement that affirmatively asserts that interpretation outside of court.

    What would you think of a movement to promote the right of citizens to record what they encounter? Imagine a web site “We-Do-Record.com.” The site declares that when a citizen displays “We-Do-Record.com,” those who approach the citizen (a) are notified that the citizen does record what he encounters and (b) consent to this recording. The site further declares that when the citizen displays “We-Do-Record.com” the citizen is asserting her constitutional rights to record. The site would go on to explain that those constitutional rights include the 1st Amendment, the 6th Amendment and possibly others.

    Participants in the movement could display “We-Do-Record.com” on their apparel, their vehicles and so on.

    Your thoughts?

    –Benjamin Wright
    Attorney
    SANS Institute Instructor: Law of Data Security and Investigations

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