Sunday, Sep 14, 2014
Columns

Right to privacy is inviolate


Published:

We now know the NSA routinely collects our normally private communications. The American people must respond. If there isn't a strong enough outcry, these practices will become institutionalized.

The entire case raises important civil liberties questions. Should the government be able to collect and store all of our phone calls and electronic correspondence? Or should Americans have a right to the privacy of correspondence?

The constitutions of many other countries guarantee and protect the privacy of correspondence. The United States does not.

The Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The right to the privacy of correspondence is one of these unenumerated rights.

The Founders claimed that people have natural rights. These rights are not granted by the government.

The first principle of these natural rights would be the right to own ourselves.

The Founding Fathers were not being hypocritical, holding slaves while declaring all men have a right to self-ownership. Benjamin Franklin, John Adams, Thomas Jefferson and even George Washington, a slave owner himself, all went on record saying to the effect that "there is not a man living who wishes more sincerely than I do to see a plan adopted for the abolition of slavery" (to use George Washington's words).

From this principle flows the right to property. If you own yourself, you own the fruit of your labor.

The privacy of our conversations and correspondence also comes from this point. If you own yourself, you can choose with whom you share your thoughts and expressions. Thus privacy of correspondence becomes a natural right.

Our natural right to the privacy of correspondence should be neither increased nor decreased by either enumerating it or leaving it unenumerated.

However, the American court system today treats enumerated rights very differently from unenumerated rights. Our rights enumerated in the Constitution serve as a paper barrier. Government intrusions on those written words have rallied public outcry more effectively than invasions on our unenumerated natural rights.

Because we don't have an enumerated right to the privacy of correspondence, the government can claim that the Fourth Amendment, which guards us against unreasonable search and seizure, doesn't apply in this case. In essence they can choose to declare legal whatever they want and continue to operate under the veneer of legality.

We propose the following amendment to add the enumeration of this important natural right:

Everyone shall be entitled to secrecy of messages, both sent and received, by any means of communication. The freedom and confidentiality of correspondence in any form of communication shall be inviolable.

No federal, state or local government authority or their officials may collect or store correspondence or metadata on the transmission of correspondence without the expressed permission of all involved parties.

No public or private entity can pay for, promote, encourage, initiate or further the violation of this right. Exceptions to this provision shall be allowed only with the permission of the judicial authorities for the purpose of discovering or preventing a grave crime.

Citizens have the right to become acquainted with information about themselves held by federal, state and local government authorities, in federal, state and local government archives, or to which the federal, state or local government authorities have access, in accordance with procedures determined by law.

A constitutional amendment is a simple response to the growing intrusion into personal freedoms. The vested interests of government officials have little in common with the protection of civil liberties. It is not unreasonable to fear the likely abuse of government surveillance.

Several states have ballot measures whereby citizens can directly propose such resolutions. Others will have to be introduced by state legislatures.

The time is now. We need to protect more of our natural rights by enumerating them.

David John Marotta is president of Marotta Wealth Management Inc. of Charlottesville, providing fee-only financial planning and wealth management at www.emarotta.com. Megan Russell studied cognitive science at the University of Virginia and now specializes in explaining the complexities of economics and finance at www.marottaonmoney .com.

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