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.”

And the topic keeps bubbling.  I’ll be tuning in this Thursday to the premiere of “Person of Interest” on CBS (Sept 22 9pm). It looks thought provoking, with a lovely over-layer of dramatized paranoia, expressing a core point from my book The Transparent Society: Will Technology Force us to choose between Privacy and Freedom - 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 can ever blind 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 turning its omniscient gaze around.  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 touting tentative optimism after a Federal court 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!

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor…"

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 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 sacred but over-used 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, but also deeply mired in mid-20th Century ways of thinking, alas. I am hopeful, though, that he can learn to see with 21st Century eyes.

For follow-up see: You have the right to record police.

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