The revelations by Edward Snowden about the NSA’s collection of “metadata” on every phone call that is made in the U.S. has led to concerns about whether the government should be collecting this type of information and whether there are adequate safeguards as when and how the government may be permitted to use the information. Putting aside the host of legal and security issues associated with this program, most Americans probably still are not aware that, for example, the five largest tech companies, Google, Facebook, Apple, Amazon, and Yahoo collect information that contains far more personal details, and is available to the government for the asking. While the exact types of data collected differs somewhat amongst these tech giants, nearly all collect “ad clicks,” “browser information,” email addresses” “IP addresses,” “phone numbers,” “search queries,” etc. The companies aren’t stealing this information but are obtaining it without cost from users, who either don’t care or haven’t taken the time to read the privacy policies of the tech companies which give the companies free access to this information.
Perhaps, what is equally disturbing about the companies’ unfettered use of the information is the very limited legal protection given to such information. The primary and most important federal privacy law in the United States, The Stored Communications Act (SCA), which was originally enacted in 1986, to govern the privacy of computer network communications and grants Internet users a set of statutory privacy rights that limit the government’s power to access a person’s communications and records, but does not cover, for example, search queries. In other words, search records, such as whether a person visited a website for alcohol or drug addiction centers can be disclosed to the government without even a subpoena.
Moreover, while standing alone, each of the type of data may only pose a limited threat to an individual’s privacy, by combining the different types of data generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about familial, political, professional, religious, and sexual associations that can be stored and mined for information years into the future, not only by the companies but by the government as well. Thus, if the search query for drug addiction or alcohol treatment is combined with ad clicks and phone numbers, a much more complete profile of the user is generated which is freely available to the government. Because the information can be acquired by the government at little or no cost there is no monetary restraint on the information collected by the government which can lead to the government having access a substantial quantum of information about any person whom the government wishes and may “’alter the relationship between citizen and government in a way that is inimical to democratic.”
James Madison, the principal author of the Bill of Rights, is reported to have observed, “Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom by the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.” Indeed, this data that can be freely obtained by the government at virtually no lower cost is just the type of “gradual and silent encroachment” into the very details of our lives that we as a society must be vigilant to prevent. Congress should carefully consider whether there should be limits on whether the government can obtain this information and how the information can be obtained. It is too important an issue for the government to decide without the knowledge and consent of the American public.