This article is part of The Nation’s 150th Anniversary Special Issue. Download a free PDF of the issue, with articles by James Baldwin, Barbara Ehrenreich, Toni Morrison, Howard Zinn and many more, here.
Imagine a state that compelled its citizens to inform it at all times of where they are, who they are with, what they are doing, who they are talking to, how they spend their time and money, and even what they are interested in. None of us would want to live there. Human-rights groups would condemn such a state for denying the most basic elements of human dignity and freedom. We’d pity its citizens for their inability to enjoy the rights and privileges we know are essential to a liberal democracy.
In fact, this is the state in which we now live—with one minor wrinkle: the US government does not compel us directly to share any of the above intimate information with it. Instead, it relies on private companies to collect such information—and then it takes it from them at will. We “consent” to share this information with the companies that connect us to our intensely hyperlinked world. Our cellphones constantly apprise the phone company of where we are, as well as with whom we are talking or texting. When we send an e-mail, we share the address information, subject line and content with the Internet service provider. When we search the web or read something online, we reveal our interests to the company that runs our browser or search engine. And when we purchase anything with a credit card, the company that issued the card maintains a record of the transaction.
In short, we share virtually everything about our lives—much of it intensely personal—with some private company. (While some Internet companies, such as DuckDuckGo, promise not to collect personal information, most do, both to provide you their service and to capitalize on the information they thereby gather.) In theory, we can also refuse our “consent”: we can choose to live as hermits, cut off from all the forms of communication that dominate modern existence. But that’s a high price to pay for privacy. Surely we can have our smartphones and our privacy, too?
While we don’t consent to share our personal electronic profile with the government, a series of Supreme Court rulings dating back to the analog age holds that what we share with “third parties” like Google is no longer private, at least vis-à-vis the government obtaining that information from the third party. So if the FBI wants to find out whom we’ve been calling and where we’ve been, it can demand our phone and location records from the phone company. If it wants to know what websites we’ve been visiting, it can demand those records from the Internet service provider. Under the Supreme Court’s third-party disclosure rule, the government can obtain this information without any basis for suspecting us of wrongdoing, and without bothering to get a judicial warrant.