for the American Bar Foundation. She is the author of License to Harass:
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 Cente
r
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.
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.
---
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
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.
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