Copyright and the 1st Amendment - Literature review Example

?Amber Steimer Media Outlaws December 19 Argument and Analysis: Copyright and the 1St Amendment The corporate world has led developments in copyright law, which favors curtailment of fair use this is according to McLeod. Another side of the copyright law is the fair use, which aims to protect innovations by encouraging them through reproduction and use of parts of copyrighted material (Public Law 112 - 131). However, curtailment of fair use is a part of a violation of a much more important right, namely the right to freedom of expression awarded under the1st Amendment. According to McLeod, privatization of previously public information and spaces has curtailed the 1st Amendment, no longer leaving much space for any type of expression on behalf of individuals. Though McLeod rightly claims that our rights under the 1st Amendment have been curtailed through a rise in copyrighted material, he is wrong to include in his arguments gathering and protection of personal information for homeland security purposes. McLeod notes, “Information about citizens is collected by private companies and guarded for corporate purposes, or the use of the highest bidder” (245). The “Multistate Anti-TeRrorism Information eXchange (MATRIX) is such a program. With the MATRIX program, the US government collects information from private databases and uses it to its own ends” (McLeod 245). Though McLeod is not completely wrong to point out and argue against the dangers of this innovation. The MATRIX program implies that most of the information that was previously public is now proprietary thus it is privately owned. MATRIX collects data on every citizen. According to McCleod, “MATRIX collects a wide range of data, including pictures of the subject, one’s neighbors and family members” (McLeod, 245). Also, this information is proprietary. Although this information is a collection of events and facts from a personal as well as public life of an individual, the owner and creator of this information, i.e. the individual whose data was collected, has no access to it. The Freedom of Information Act does not extend to ordinary citizens as the information has been privatized (McCleod 245). According to the Privacy Act of 1974, 5 USC 552a, cl.e, the executive has the right to collect personal information for the purpose of protecting the homeland security. However, individuals have a right to be informed of changes or disclosures of such information. By 2004, data was collected on 120,000 individuals, who were viewed as having “high terrorism factor” (Krouse 3). In cases where the use of MATRIX program is not kept in check then, the misuse of the privatized information is bound to happen (McLeod 247). McLeod cites Lt. Col. Ralph Periandi, deputy commissioner for operations with the Pennsylvania state police, who argues that these data will not be used for anti - terrorist activities only (246). They are open to misuse by the members of the US law enforcement agencies. Democracy will be cut by such actions of misuse of private information The democratic right to innovate too is tied up by such practice, as the case of ElcomSoft proves. An employee of this company attended a conference where he intended to make public an ebook reader, a tool which would allow consumers to copy books legally onto a personal computer, once they paid for this service (McLeod 248). The employee was arrested, though later acquitted together with his company, as US jury decided that they were not aware of US laws regarding intellectual property rights. Despite the arguments made by McLeod, some points about legal protection of the right to privacy should not be missed. Indeed, companies use cookies to collect private data such as IP address, or the social security number (Legal Information Institute). And databases collecting data about every aspect of a person’s life intrude the private sphere. However, some of this data is given away consensually by individuals. Laws attempt to protect every sphere of an individual’s private sphere. According to the Privacy Act of 1974, individuals have a right to be informed of changes or disclosures of such information. This can be done through email notification with the consent of the individual users. In addition, The Gramm-Leach Bliley Act of 1999 provides individuals with a right to have their financial information protected by financial institutions, and requires the latter to keep their customers informed of the extent of protection, and any changes to the protection policy that might occur (Legal Information Institute). Children are also protected through the Children’s Online Privacy Protection Act of 1998.This means that whenever a person does any transaction online then they are liable by the websites they are using to protect the credit information to stop online fraud by hackers, the same applies with children where they are protected from online stalkers and given the consent the child would be monitored to reduce cases of child pedophiles and online pornography. There are countless laws protecting the individual’s right to privacy although these laws mostly focus on prohibiting dispersion of personal information. By prohibiting arbitrary dispersion of information on behalf of third parties, the government protects the individual who failed to keep information private. Most data sometimes fall in the wrong hand depending on the source of the data further more the law has minimum monitoring in such a case, a good example is in the internet usage. Internet or any other electronic media are sometimes in transnational use and ownership. National laws cannot affect individuals living outside of the national border. An individual can provide personal data to a company located outside of one’s home country. In other words the protection of the individuals’ data is beyond the US jurisdiction. In order to prevent electronic access to private information, electronic media would need to be eliminated. Already in 2000, Klosek wrote about the perils of electronic media. Klosek argued that wide availability and use of electronic networks ease the transfer of information among participants (1). Klosek considered Internet to be the most important of the electronic networks which could be misused (1). When information about an individual is circulated, a wide circle of people can gain access to it in a short period of time. Already a simple contest entry online requires personal information which can be then made available to a large number of individuals (Klosek 1). Usage of Internet keeps on increasing as more individuals can afford it, or as production and usage costs decrease. The solution in this case could be eliminating the electronic media which is quite impossible as the positive usage of the electronic media, internet included have far much impact than the liabilities therefore a compromise in terms of strict monitoring of the online data would prove quite resourceful. By its nature, Internet is open to misuse and will most likely always be. However, most would not eliminate the benefits Internet has brought along. Despite the disadvantages of information collection, its advantages should not be forgotten. Without access to information on dangerous individuals, law would not function as efficiently. Concerns about privacy of information have been a concern for centuries. Klosek cites an 1890 article written in the Harvard Law Review by Louis Brandeis and Samuel Warren, where authors argued about the right to privacy (7). Klosek argues that the cause of this concern is existence of media of information transportation (7). However, even aboriginal cultures had a way of transferring information through oral means. Collection of personal data in the USA, which includes usage of latest of technologies, is not something new. Already in 1967, in Katz v. United States, the court argued that wiretapping without a warrant violates the Fourth Amendment. Thus, privacy concerns have been around for decades, even in absence of Internet. In case of cordless phones, courts ruled in favor of the interceptor, as phone calls are not encrypted and are easily intercepted (State v. McGriff). Thus, even before the existence of Internet, information has been accessed and stored on individuals for law enforcement purposes. Back then, terrorists or criminals were limited to these tools, and thus infringement upon privacy by the government and law enforcement agencies only included wiretaps and physical surveillance. With satellites and Internet communication, surveillance has taken on a completely new meaning: anywhere and anytime, on anyone. As a result, infringement upon privacy is easily done. With almost every inch of the planet visible to the satellite, any person can be followed and observed. The major issue that is being discussed on privacy of information is thus not only the fact that Internet can easily transport information about and on such individuals as argued by Klosek, but also the fact that individuals are not used to more efficient method and tools of such activity like surveillance. Historically, individuals have had little privacy in most countries around the world. The East German Ministry for State Security (MfS), also called the Stasi, spied on millions of its citizens. There were an estimate 167 citizens per a Stasi agent, not counting the informers (Koehler Chapter One). Before that, the famous secret service police were the Gestapo. Then, the KGB in the former Soviet Union has been known for their atrocities and infringement upon the privacy of the Soviet citizens. Almost every country in the world has a secret service, which in some way infringes upon the privacy of its citizens (Pike). Little has changed over the ages. According to Sheldon, there is proof that individuals were spied on already in ancient Rome and Greece (49). Though this is not an argument in support of violations of the Fourth Amendment on behalf of the US government, it is an attempt to depict how individual’s needs and rights are sometimes circumvented for a greater good, even in a democratic society such as the US. Current definition of warfare has changed. Fifty years ago, wars occurred between states, or a state and internal guerrilla forces. Nowadays, wars take place everywhere, and they include citizens and foreign combatants who respect no borders, and use whatever tool is at their disposal, including Internet. Such is the case with Al – Qaeda and the US government and its civilians (United States v. Bin Laden). Because these groups are not American but aim to cause harm in the US, anyone assisting them relinquishes one’s fundamental rights (United States v. Bin Laden). The fact that information about others was historically available to most people in the community anyway is a point that is being ignored. In traditional communities, such as a small village with less than five hundred residents, there was little communication with outsiders. Villagers produced most needed goods, and exchanged with others if necessary. There was little privacy in such communities. Crimes too were oftentimes punished by local councils made up of elderly, which meant that most villagers had access to details of local crimes. The modern notion of privacy is not the notion of privacy our ancestors had: “In an important sense, privacy is a modern invention. Medieval people had no concept of privacy. They also had no actual privacy. Nobody was ever alone. No ordinary person had private space. Houses were tiny and crowded. Everyone was embedded in a face-to-face community. Privacy, as idea and reality, is the creation of a modern bourgeois society. Above all, it is a creation of the nineteenth century. In the twentieth century it became even more of a reality. “(Friedman 258) According to Friedman, privacy is a modern social construct. Our interactions, architecture and habits turned an abstract notion of privacy into something that has, as McLeod points out throughout his book, become very complex and contested. However, this is a point McLeod misses to account for when criticizing the infringement upon individual’s right to privacy. Privacy was in the past oftentimes synonymous with hidden crimes. According to Friedman, privacy and reputation are connected (4). Reputable individuals are respected. However, reputation is oftentimes earned and kept because of public’s lack of access to non - reputable acts of that individual or company (Friedman 4). In the past, a zone of privacy was there for Victorian men and women who deviated from social norms (Friedman 4). In this zone, they were given leeway to exercise what was deemed as unacceptable by the social norms of the time. Then, modern times expanded this zone to everyone. Current discussion about privacy is unique in the sense that future generations will read about it in terms of a creation of the notion of privacy as we know it today. As mentioned previously, laws govern privacy. At the same time, privacy has been obstructed for thousands of years, without any laws protecting it. Without obstruction of privacy at times, greater good could not have been protected, as the case of law enforcement depicts. Modern times have witnessed the creation of privacy. With each new discussion, privacy is defined in details. Without the discussion on MATRIX, definition of when privacy can be shared with others, given the new and improved media, would not exist. Modern time is the time of restructuring and creation of a new form of privacy. According to the US Constitution, each individual is endowed with a right to privacy. Previously, only respectable men and women owned this right. Now, every individual is allowed to shield one’s behavior from others. On the other hand, celebrities saw this right taken away from them (Friedman 5). Currently, as previously argued, even this notion of privacy is being threatened by electronic media. Friedman argues justly: “As social norms change, laws that touch on reputation and privacy change along with them” (5). Laws are dependent on norms, as are laws governing current notion of privacy. Friedman argues that social norms shaped by society in turn shape the notion of privacy (5). Laws are static if social norms are as well. However, norms change, affecting the way individuals view acceptable behavior. In turn, laws are changed equally. As a result, laws affecting MATRIX and our privacy arise from our own notions of what privacy is or should be. In a way, discussion about MATRIX is a circular notion: privacy is defined by social norms, which define laws, which again lead us to contest privacy. The reason we even worry about privacy is because individuals benefit from it economically and politically. An individual suspected and charged for terrorism because he associated himself with a known terrorism at a mosque, and then later acquitted of all charges, will find it hard to find a job or keep the old one. Neighbors and friends might become suspicious or unwilling to continue a friendship with someone who found himself in close proximity to a dangerous person or a dangerous act, such as terrorism. Yet, because of MATRIX, this individual became associated with a terrorist, as his pictures included the bystander as well. Privacy in the current debate is about side effects of MATRIX, of the right to view individual’s data, and the effects action taken might have on the individual. Current movements in privacy laws affect the right to be protected from bad reputation in public. Though current culture is permissive of most activities once deemed immoral, some are still frowned upon, and can affect one’s economic success, such as a criminal record, or the suspicion of being a terrorist. McLeod’s claims are important and should not be dismissed. MATRIX, just as any other authority that oversees people’s lives, is easily corruptible. As such, any such authority must be viewed with suspicion and not be allowed to foster without any accountability to the same subjects it was created to protect. However, McLeod fails to take into consideration the developments that affect MATRIX and laws governing it. Privacy is a modern notion, and it changes with social norms. They in turn change laws governing privacy. Though McLeod offers an insight into the human rights side of the argument on MATRIX, he fails to take into account this larger picture. Works Cited Friedman, Lawrence. Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy. Stanford: Stanford University Press, 2007. Print. John F. Kennedy Center Reauthorization Act of 2012. Public Law 112 – 131. 17 USC § 107. U.S. Government Printing Office, 8 Jun. 2012. Web. 10 Dec. 2012. Klosek, Jacqueline. The War on Privacy. Westport, Conn: Praeger Publishers, 2007. Print. McLeod, Kembrew. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property. Minneapolis: University of Minnesota Press, 2007. Print. Read More