Re: Suggestions for new constitution on digital liberties

[Bibek Paudel]

I am including parts of a document i prepared for the Media Workshop held a few months back. I will try to send a Nepali version of the document tomorrow. Please give your suggestions. Not all of the points are suitable for inclusion in the constitution. Many of them should probably be addressed in the laws prepared later.


Topics to be addressed:

Electronic voting
filesharing should be legal.
Consumer rights -> eg: ISPs
Right to information
Platform neutrality -> eg: consumers right to information shouldn't be dependent on the technology and platform they use. Nobody should be discriminated on the basis of the technology they use.
Right to free speech and expression rights of both the speaker and the audience
Right to anonymity
Right to privacy
Digital Rights Management
Internet blocking, censorship
Use of Free/Open Source Softwares in schools, government, public institutes
Computer Curriculum of Schools
Open Documents and Standards
right of bloggers to access public information, attend public events with the same rights as
mainstream media
Right to Protect the Server and other devices from Government Seizure
Oppose governmental effort to promote, coerce or mandate the rating or filtering of digital
content
Ensure the continuation of the Internet as a forum for open, diverse and unimpeded expression
and to maintain the vital role the Internet plays in providing an efficient and democratic means
of distributing information around the world


Why?

While modern technologies have changed our lives, societies and governments, providing us unprecedented ways to exercise democracy and express our rights, these technologies also provide similar powers to governments, corporations and criminals, making it easier for them to infringe on our liberties. Unfortunately, rather than because of the technology itself, this happens because very few citizens and civil liberty groups understand the technology well enough to understand the importance of these issues. Our rights in the digital world come under frequent attacks- we need to be able to defend them. Free/Open Source Software Community of Nepal (FOSS Nepal) champions the cause of freedom and liberty in the digital world.

Thanks,
Bibek

On Fri, Jun 12, 2009 at 1:15 PM, Bibek Paudel <eterna...@gmail.com> wrote:

Hi all,
Nepal's new constitution is in the process of being drafted (hopefully). I was informed by Subir dai and Prabin of a conversation they had with a Constituent Assembly member, Gagan Thapa on incorporating issues of free-software and digital freedoms in the new constitution. For that, our community needs to prepare a draft suggestion to the "Fundamental Rights Committee" of the CA in a couple of days as they're finalizing their draft early next week.

Lets discuss the issues we want to be included in the new constitution.

Thanks,
Bibek

[Jitendra kumar]

Bibek, I would like to add a point to this.
I think we need to ask the government to ensure provision of providing the digital content that government has like digital maps, population statistics, etc. at no cost or very reasonable cost and if possible online. And, while the government can ask to be attributed by mentioning the source, there should be no bar on how the data is used...

I have faced this problem a couple of times. And, really want the government to address this..

I hope the new constitution addresses this issue as well.

Regards,
Jitendra

[Bibek Paudel]

On Fri, Jun 12, 2009 at 10:06 PM, Jitendra kumar <jitendra...@gmail.com> wrote:

Bibek, I would like to add a point to this.
I think we need to ask the government to ensure provision of providing the digital content that government has like digital maps, population statistics, etc. at no cost or very reasonable cost and if possible online. And, while the government can ask to be attributed by mentioning the source, there should be no bar on how the data is used...

Yes, all public data (data collected/generated by public organizations, government etc. basically utilizing public money) should be available and made accessible (in open formats).

Suggestions on other topics?

Is it ok to place surveillance cameras in public places or not? Is it ok to ask me submit my digital records or not? Is it ok for me to encrypt my data and be immune to decrypting it to government agencies or not? is it ok for ISPs (or anybody else) to store their customers' data in unsecured formats or not? is it necessary for organizations to abide by some privacy policy or not? is it ok to share digital files or not? is it ok for bloggers to be provided the rights at par of journalists of news agencies while attending public events and accessing information or not?

Thanks,
Bibek
 

[Bibek Paudel]

I just found a nice book relevant to the topic of discussion. "Constitutional Rights and New Technologies: A Comparative Study (Information Technology and Law)" by Ronald E. Leenes, Bert-Jaap Koops, Paul De Hert and Susan W. Brenner published by Cambridge University Press (available for preview in Google Books) provides examples from 7 countries about how changed their countries' constitution vis-a-vis ICT. Also talks of the related laws and other provisions, thus proving a helpful resource for policy makers and academicians. If there are experts of the legal system in this mailing list, please try to have a look at this book, or at least the excerpts.

A presentation containing excerpts from the book is available at: http://www.ies.be/files/080312_P_DeHert.pdf

Thanks,
Bibek

[Bibek Paudel]

Well, if you're not interested to discuss it here in the mailing list, I hope you'd like to do it on Slashdot: http://ask.slashdot.org/story/09/06/12/2011213/How-Should-a-Constitution-Protect-Digital-Rights

Bibek

[Abhudaya Sagar]

wow cool

right of bloggers to access public information, attend public events
with the same rights as
mainstream media

mailing list mai chal phal garu na

--
Mr. Abhudaya Sagar Kshetri (ASK?)
Url: www.sagarkshetri.com.np
email:con...@sagarkshetri.com.np

[Jitendra kumar]

Nice initiative, Bibek. The article on slashdot has really been helpful in getting others' opinion on the matter.

I just happened to go through the comments posted in the slashdot article. Well, many people feel that the digital rights should not have a separate clause and should be a part of the basic human rights. We just need to broaden the applicability of the constitution's article and clauses. Only in case, when some of the rights that we want to ensure does not apply to other mediums, we got to be specific. And, they are true in saying that being very very specific can result in so many loopholes. And, moreover constitution has to be concise.

I guess so many people can't be wrong..So, lets organize our documents in a way that they get merged with the fundamental rights that we have.

Regards,
Jitendra

[Suvash Thapaliya]

I would agree with what Jitendra says, as being discussed in Slashdot.

One more thing i am interested by is that the discussion also somewhere mentioned the ways things were done in Norway(if i remember well). Such an obligation to strictly adhere to open-ly consumable digital information etc.. if could be etched in law/rights and practiced/monitored would simply be awesome.

Being specific on "digital rights" will possibly not be future-proof. Hence IMO it will be nice if the rights could be based on the various civil rights and then be extended to include the digital domain.

[Bibek Paudel]

The pioneer of the Free Software movement, Richard Stallman's (RMS)
has some suggestions for Nepal's new constitution, communicated over a
series of mails during the last week. I am separating each mail by a
separator like the one below:
-------------------------------------

Here are some suggestions.


[No patents on software, writing, art; no business method patents]

No patent-like monopoly shall limit the right to make, and
subsequently to distribute, use, and authorize the use of, literary or
artistic works, or the right to perform activities consisting of
manipulation of information, data or knowledge, or the right to
carry out business methods.


[Right of reverse engineering]

The right of any citizen to study the operation and structure of any
technological product that he owns, and to study nondestructively any
technological product that he is lent, and to publish the knowledge
obtained from such study, shall not be limited by any law, or by any
contract accepted by the citizen without real negotiation, regardless
of where the contract was signed.



[Rejection of the misguided concept of "intellectual property"]

Copyrights and patents are privileges granted as artificial incentives
for activities expected to promoting progress.

The state may through legislation increase or decrease the extent of
existing copyright and patent privileges, or future ones, in order to
achieve the best balance between two public interests: promoting
progress, and the public's freedom to use published works and ideas.


[Freedom to photograph and record]

The citizen's right to occasionally make recordings of sights, sounds,
and events, when in a place where the public may freely enter, and to
publish these recordings, shall not be limited by any law, order,
private rule, or contract.


(In particular, the copyright on posters or sculptures that appear
in a photo, or music heard playing in a sound recording, cannot
interfere
with publication of the photo or recording.)

(This has no effect on concerts or movie showings that require buying
a ticket, because those are not places where the public may freely
enter.)


[Freedom from unjustified surveillance]

No person, entity, public agency, or combination of those may use
computing technology to systematically and automatically store beyond
a short time any information about individuals, except when the
individuals are in a place off limits to the public and with
permission of the owner of the place, or when inherently necessary for
dealings those individuals enter into, or pursuant to a court order
detailing the individuals to be surveilled and the type of information
to be stored.


[Prohibition of National ID Cards]

The state shall not issue credentials to individuals except limited to
a specific purpose, and no such credential shall be checked, or its
data requested, for any purpose other than the one for which it was
issued, except pursuant to a specific court order or at the scene of a
crime.
--------------------------

Digital Rights Management

Please do not use the term "Digital Rights Management".
Please call it "Digital Restrictions Management".

--------------------------

Regarding anonymity, I think that the proposed articles to limit
surveillance and prohibit general ID cards will go a long way to do
that.

If a business or agency can't ask people to show their national ID
cards, it is some trouble to identify everyone, so they probably won't
bother.


This quote may be useful, especially since you are so close to Tibet:


From Born in Tibet by Chögyam Trungpa, foreword by Marco Pallis

It is not only such obvious means of intimidation as machine guns and
concentration camps that count; such a petty product of the printing
press as an identity card, by making it easy for the authorities to
keep constant watch on everybody's movements, represents in the long
run a more effective curb on liberty. In Tibet, for instance, the
introduction of such a system by the Chinese Communists, following the
abortive rising of 1959,and its application to food rationing has been
one of the principal means of keeping the whole population in
subjection and compelling them to do the work decreed by their foreign
overlords.

--------------------------

Small changes in these two:


[Right of reverse engineering]

The right of any individual to study the operation and structure of
any technological product that he owns, and to study nondestructively
any technological product that he is lent, and to publish the
knowledge obtained from such study, shall not be limited by any law,
or by any contract accepted by the individual without real
negotiation, regardless of where the contract was signed.


[Freedom from unjustified surveillance]

No person, entity, public agency, or combination of those may use
computing technology to systematically and automatically store beyond
a short time any information about individuals, except when the
individuals are in a place off limits to the public and with
permission of the owner of the place; or when, as and for as long as
- Hide quoted text -
inherently necessary for dealings those individuals enter into; or
pursuant to a court order detailing the individuals to be surveilled
and the type of information to be stored.

--------------------------

Here are more suggested articles for some of the issues you suggested.


[Freedom to share published works]

No law, order, rule or contract shall limit the freedom of individuals
to noncommercially copy and redistribute to other individuals copies
of any literary or artistic work that has been published or otherwise
intentionally made available by its authors to a large number of
people.

[Freedom to use encryption]

The right of individuals and organizations to use technical means
to protect the privacy of their communications shall not be limited
by any law, order, rule or contract.

[Free standards for state-public communication]

To promote competition in ICT, entities forming part of the state, or
controlled or owned even partially by the state, or engaged in
business that requires a specific license from the state, shall use
exclusively formats that are publicly documented and that everyone is
free to implement, for digital communication with the public, for
digital communication with each other, and for archiving of digital
information.

(Note that these formats include encryption formats, so this does not
forbid the use of encryption, but requires that the format and the
encryption method be published and thus given careful study.
Encryption experts say you should never trust encryption software
unless the encryption algorithm has been publicly and carefully
studied; otherwise it is likely to contain a subtle but disastrous
weakness.)

--------------------------

The first 8 or so amendments to the US constitution are very good
defenses of human rights. Nepal should consider them too.

--------------------------

Thanks,
Bibek

[prabin gautam]

brilliant suggestions. but we have to make the committee eat all these things. By today or as of now they know nothing about the issues raised here. I am trying to coordinate Interaction program to explain the committee about suggestions we will be sending to them.

--
Prabin Gautam
Open Source Developer
prabin AT prabin DOT net DOT np
Mob: +९7७9८4१२5९00१

[Akash Deep Shakya]

Just an idea, lets do a FKK on this issue. Prabin dai, bibek and other interest people can shade light over. We can call media peoples, student, or even people from HLCIT and other ICT related firms.


Regards
Akash Deep Shakya "OpenAK"
B.E. (Computer) | Kathmandu University
http://www.akashdeepshakya.com.np
akashakya at gmail dot com
P.O.Box: 8975 EPC: 4235

~ Failure to prepare is preparing to fail ~