In the wake of revelations about the National Security Administration’s PRISM programme and the federal government’s unprecedented collection of data about our phone calls, internet usage, and emails, a new Pew Research Center poll finds that most in the US – 56 percent of those polled – still think the administration’s practice of monitoring and mining is “acceptable”.
President Obama was careful to tell us no one was “listening” to our phone calls and many commentators have pointed out that US phone and internet companies already were collecting this information. The implication is that we already give away these data, so we should not care that the federal government is collecting it. The flaw of that argument is its failure to acknowledge the tremendous difference between entering a relationship with a private company by choice and the government’s wholesale appropriation of that data.
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Facebook – and the other communications giants reportedly involved with PRISM – is free to the user because the information about when and how we click, and which of those clicks lead to purchases, is valuable information. Facebook sells that information to advertisers so that they can customise the experience for the user and, hopefully, generate more sales for the products advertised; that is its business model.
As such, when we sign up for Facebook we are making an exchange. While sometimes annoying, we give permission – you could even think of it as “selling” information about our internet habits – in exchange for a wonderfully easy way to connect and share with our family and friends. No-one is required to be on Facebook, but if you are, you willingly entered into this bargain.
Think also of your grocery discount card. In exchange for saving 25 cents when you purchase your favourite cereal, you agree to allow the store to sell your purchasing history to companies that “mine the data”. Analysts figure out that most people who buy your cereal also buy a particular kind of yogurt. The next thing you know, that particular brand of yoghurt is one of the discounts available on your discount card or, if the pattern is strong enough, the products are sold near each other in the store. Sales for the cereal and yogurt go up for the company and you get a discount. Again, the private company and the consumer have made an exchange.
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The federal government is not a grocery store or a social networking site. The government has a special relationship with its citizenry. The terms of that relationship in the US are spelled out in the Constitution of the United States of America. The right to be “secure in our persons, homes, and papers” has a long history of protection in the United States. In response to the tyranny of British rule, this country was founded on principles that embody freedom from government intrusion in our lives.
Unless and until the government – in the form of police, federal agents, or a prosecuting attorney – can show that there is probable cause to believe that a person is engaged in criminal activity, we have rights against the government (what legal scholars call “negative rights”). This can be thought of as the list of things that the government may not do to you or take from you without proving to a judge that they may take it from you. And you are entitled to a fair determination on that question – this is your “due process” right.
What can’t the government take from you without due process? Your property, your life, and yes, your privacy. I have argued above that our clicking behaviour is valuable, so you might think of your internet footprint as your property.
Although you do not have a lot of bargaining power in the contract with Facebook, you do have a choice about whether this exchange seems fair to you: the use of Facebook for the value of this information. If the government wants to take your property – for example, to build a new airport runway or military base – then they have a high burden to meet. The government must pay fair value and the private property owner has the opportunity to appeal. That is the guarantee of due process in action.
But wait, you might say, no-one’s life is at stake in the airport example. So what about bone marrow and organ donation? There are some 120,000 people in the United States waiting for life saving organs at any given time. That’s 40 times the number of people killed on 9/11. And yet, the idea that the government could compel everyone to become an organ donor is unbelievable.
What if they required us all to bank our DNA and mined that data for matches? We would all be horrified. That kind of medical information and medical procedures are – and should be – private decisions made in consultation with one’s doctor and family.
The federal government has a sacred relationship with its citizenry. Ensuring that the government meets its burden before taking something from us is the way we ask our government to live up to our founding principles. And so, Americans, just because Mark Zuckerburg has this information does not mean the government is entitled to it. We have not only the option to oppose this massive violation of our privacy, but also a constitutional obligation to resist the Obama administration’s intrusion into our private behaviours.
Laura Beth Nielsen is an Associate Professor of Sociology and Director of Legal Studies, Northwestern University, and research professor at the American Bar Foundation. She is the author of License to Harass: Law, Hierarchy and Offensive Public Speech and is part of The OpEd Project’s Public Voices Fellowship at NU.