> However with the surveillance society we live in

Or you could change the US constitution so that it includes a right to privacy and data protection, like the EU Charter of Fundamental Rights, or the European Convention of Human Rights

It effectively does: the fourth amendment. More explicit verbiage is unlikely to matter.

Besides, nobody said Europe wasn't a surveillance society.

The constitution doesn't have the word privacy anywhere in it. And the 4th amendment is worded as a specific protection against " searches" and "seizures" not surveillance.

Same in Germany. Our Constitution Court invented a basic right to privacy in the 50s.

Some years ago they got really modern and invented a second basic right, the "basic right to guarenteeing the confidentiality and integrity of data-processing systems".

Both of those things are in the EU Charter of Fundamental Rights. Both the right to privacy and right of data protection.

But our Court invented them as new parts of our Constitution.

And the Charter post-dates the Court's decision on privacy by decades.

Freedom of movement isn't in there, either. Nor is the freedom to use math to secure your documents. Are you claiming these are not rights?

Freedom of movement is in the constitution (all state citizens get the privileges of the several states).

The freedom to use math is as much of a freedom as the freedom to use physics to move things with your hands (that is to say: pretty independent of what one would call a freedom from a legal perspective).

The freedom to secure your documents is also a freedom insofar as the constitution does not seem to grant the government a way to prevent you from doing so (10th amendment). But hey, there's been some creative applications of the commerce clause in the past.

Freedom to use encryption I think falls squarely under the first amendment, because it's a way of communicating with other people. Freedom of movement has been held to fall under the privileges and immunities clause, which is at least plausible considering that one of the purposes of the constitution was to eliminate interstate barriers to trade.

But privacy? I don't think such a right exists, at least not in its modern formulation. You can't find modern articulations of the idea in contemporaneous works.

And that's a big deal. If you're going to say that a 200-year old document prohibits a democratically-elected Congress and President from setting policy, you better prove that the folks who wrote that document intended that prohibition. Democracy is supposed to be the general rule; Constitutional rights the exception.

You don't think it's a stretch to find freedom of movement in the privileges and immunities clause?

Here it is, in its entirety:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Huh. So travel is in there but not privacy?

I just love to watch the gymnastics of making rights enumerated and government powers unlimited and unrestrained except by a list of rights granted by government to the people.

The privileges and immunities clause says that states must give the same privileges to citizens of other states that they do to their own citizens. Since states have always allowed free entry and exit to their own citizens (and indeed, the right to enter is intrinsic to the concept of citizenship), it follows that states cannot restrict the freedom of citizens of other states to enter the state. And the right to travel is moreover consistent with what the framers were trying to do with the Constitution: tear down internal barriers between states.

Privacy does not fit in there because no state has ever granted its own citizens the notion of privacy espoused by certain modern proponents of the "right." Nor can you read the contemporaneous works of the framers and see any discussion of this idea that people should be able to keep certain information private from the government. Instead, in the 4th amendment you see a much narrower concept: that the government shouldn't be able to trespass on your property without a warrant.

Not all rights are enumerated in the Constitution. But that doesn't mean you can make up a right and say the Constitution protects it. The right has to come from somewhere. Otherwise, "rights" become an end-run around democracy. Oh, ACA is unconstitutional because people have a "right" not to be forced to buy health insurance. Oh, you can't require background checks for gun purchases, despite the vast majority of Americans supporting them, because the Second Amendment prohibits that.

> Privacy does not fit in there because no state has ever granted its own citizens the notion of privacy espoused by certain modern proponents of the "right."

So, if a state did that, we would have a right to privacy from, at least, state and local government? We would only have to worry about federal warrants? That would be a step forward. And do we not have a federal right to travel? Would internal passports be kosher? Residency permits?

As for the framers and encryption, some of them knew how to encrypt documents and did in fact use cryptograms to encrypt their notes, not for communications purposes, and would not have hesitated to use cryptograms against government investigations. One-time pads were developed in the 19th c. and remain unbreakable if properly implemented.

But that's beside the point. They surely did not have airplanes, and if you adhere to reasonable regulations, you have a right to fly through the air, found nowhere in the Constitution.

Also, as far as I know, it's not a crime not to buy health insurance. I'd be taxed for not doing so. Background checks, like the required training for pilots, would be a reasonable regulation. As long as the laws are not discriminatory or impose a de facto prohibition, they are constitutional. This is unlike some of the laws regulating abortion providers that are clearly meant to drive them out of business. Those are unconstitutional, because women have a right to control their bodies derived from the right to privacy.

There's big differences. US 4th Amendment is similar to Article 7. However Article 8 covers things that aren't in the US constitution, e.g. the requirement for an independent authority to ensure compliance, the right to access the data, the right for it to be accurate, the requirement that data is processed fairly for specific purposes on the basis of the (informed, unambiguous) consent of the person.

And the 4th Amendment doesn't apply to non-US people who aren't in the USA.

The Court of Justice of the European Union has found that US data protection law is significantly lacking compared to CFREU. If the US 4th Amendment was the same as the CFREU then there wouldn't have been that Safe Harbour case.

https://en.wikisource.org/wiki/Charter_of_Fundamental_Rights...

This[1] 2015 study from the European Parliament explains how the US 4th Amendment is not at all comparable to EU data protection law (& charter rights).

Basically (i) 4th doesn't apply to use EU citizens, and (ii) it, unlike the CFREU, doesn't apply to data you turn over to 3rd parties, like financial records to your bank, whereas Article 8 does.

[1] http://www.europarl.europa.eu/RegData/etudes/STUD/2015/51921...

Both known as "the bogeyman" in the UK and being used as an argument as to why we should leave the EU, by both politicians and press, which many appear to have already bought.

The mind boggles.

The ECHR was used to decriminalised homosexuality in the UK. What a bogeyman!