From: Alexander Rosemberg-Holcblat <ar2308@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Mon, 09 May 2005 17:31:16 -0400

Paper 2: Personal Data Rights, The Ninth Amendment and Mea Culpas

Personal Data Rights, The Ninth Amendment and Mea Culpas
By Alexander Rosemberg-Holcblat

I think I’ve come to make it a habit to write second parts to my
papers, so why stop now. My contention in “The Ninth Amendment and
Personal Data Rights” was that if correctly interpreted and enough
political will existed, the Constitution already provided all the
tools necessary for a comprehensive protection of the rights to
privacy of Americans over the data connected to them and their
personalities. Little did I realize at the time that the argument
was flawed. Such flaws are intrinsically connected to how I see the
process of constitutional development, which is inevitably done by
men in public service posts, be them Legislative, Judicial or
Executive, and which I omitted by way of being so engulfed in the
suitability of the legal solution that I was proposing. When men
apply constitutional protections they tend to interpret them
restrictively as to allow for the widest possible discretion on the
part of the executing official who must deal with the issue at hand.
This allows for maneuvering room but also for misinterpretations and
misunderstandings as to what is the alleged “retained right”
supposed to contain and entail. When I realized this I came to the
conclusion that I needed to point to those flaws and try to put
forth ideas to try and salvage the effort.

The first flaw is consequential to the requirement of judicial
creativity in the recognition of rights retained by the people
through the Ninth Amendment. Specifically, if it was left to the
Supreme Court to interpret and “fill” the retained right to
personal data privacy, such an interpretation could come to be
eminently discretionary, lacking control mechanisms other than
those afforded by the rotations in chairs at the Supreme Court and
moreover subject to constant change depending on the political
interests coloring the times. The upside to this is that being
constantly subject to change it would set a precedent for judicial
constitutional adaptation to current technological trends and means
for the violation to the rights of Americans through those
developments that fell outside the previous judicial
interpretation. The downside to the argument is the somewhat somber
likelihood that constitutional spaces will be perennially filled
correctly and unmistakably by the members of the nation’s
judiciary, who more often than not have shown a lack of
understanding for technology and how it can be used.

The second flaw is directly derived from the first. Since such an
effort will be seen as entirely discretionary, Congress would try
to enact legislation filling the right in an attempt to curtail
judicial discretion in the application of the retained rights, so
that it could not only respond to the interests of its political
constituencies but also to create a certain level of specificity
and security as to what the standards to be applied were going to
be. The result would most likely be that in response to this
limitation, the courts would act in the exercise of control of the
constitutionality of the legislation and strike it down for being
contrary to the established criteria. That is, save for the
possibility that political interests of the time could outweigh the
interest in sustaining the rationale behind the judiciary’s
interpretation, and to some extent, ego.

A third flaw could also be construed as part of the solution to the
problem, in that in this exercise of legal creativity I
unconsciously dealt away with the more specific solution of
enacting a constitutional amendment that addressed the issue. The
thought process for this omission was that the passage of a
constitutional amendment would be so complicated and difficult that
a more feasible approach would be to advocate for the usage and
exploitation of the tools that the Constitution already gave us.
The answer to my own objection is contained in the reasoning of
that last paper, in that the likelihood of one or the other option
was entirely the same, with the balance even tipping towards the
constitutional amendment as the solution to the problem. I derive
this conclusion from the judicial reluctance at creative
constitutional interpretation and the length of the period since
last the Ninth Amendment was mentioned in a decision by the Supreme
Court (Griswold 1964).

This brings me back full circle to the root of the problem and a
possible solution to the flaws I’ve pointed to here. Effective
socio-political change of the nature that is required comes about
only with concerted efforts aimed at covering all points of the
problem. In this case, respect for rights comes only when one
manages to include all political actors in the loop. Hence, one
possible solution to the issue would be to engineer change from the
ground up in that if we were to institute a specific constitutional
amendment, not only would congress and state legislatures be
included in the drafting of the figure, giving it form and
subsequently substance in the mode of instituting legislation which
would be adjusted to the fashioned right, being possible also to
control it through judicial checks and executive implementation.

I find however that change as the one proposed comes about most
likely in moments of crisis where political actors and their
constituencies come to breaking point and social movement pushes
for alteration in the status quo. We are only now experiencing the
first waves of social reaction to the problem and it will likely
take some more time for any strong reaction to come about. Still,
I’m uneasy. As I’ve expressed numerous times, social movement and
the practice of change in society comes only when people think
something is inherently in danger, when they’re afraid and the
situation strikes at the core of what they believe in. I don’t see
that type of fear yet, people are only beginning to comprehend the
nature of the problem and they are likely to never have a full
grasp of what lies beneath. I fear the 800-pound gorilla is sitting
at the table, but he’s wearing a dollar made tux.

(GRADUATING)


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

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