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As people are moving information previously hidden in locked file cabinets or safes into their personal clouds, companies have inadvertently gained unprecedented power over who can access and control information about individual citizens. This shift in control over personal data to the private corporate sector has created a new guard of corporate intermediaries that, by circumstance, have unwittingly become arbiters of law. Corporations, rather than individuals and judges, are deciding when and how information should be shared, destroyed, taken down, or concealed. The result is a disconnect between individual citizens and the judicial process that robs individuals of the opportunity to protect their rights and interests in the courts, including their right to free expression and to be free from unwarranted searches and seizures. In light of the revelations regarding the National Security Agency’s large scale collection of data from consumer technology service providers, it is imperative that we analyze the role companies play in managing data collected and stored on behalf of individual citizens, including the legal structures that regulate (or don’t regulate) what companies can and cannot do with an individual’s information. The need is even more urgent in light of the growing investment in “big data” by venture capitalists and the like.
Large online service providers are starting to address this problem head on by challenging these types of requests in the courts. Twitter has gained a reputation for protecting its users against unwarranted government requests, and Yahoo has recently gained some praise for quietly challenging the legality of a government order requesting information under the Protect America Act. Other service providers are offering encrypted email, texting, phone, and video chat services to help individuals proactively protect online communications from being intercepted. Still, most companies lack the legal resources and expertise to challenge these types of requests, and as a society, we should ask ourselves whether we want to relinquish control over the judicial process to intermediaries whose interests may be at odds with our own. This is not to say that companies should stop implementing policies and processes to help protect their customers from unwarranted intrusions of privacy or suppression of protected speech. Rather, we should revisit existing legal mechanisms and structures to ensure that we as citizens are capable of exercising our right to due process to protect the civil rights and liberties that create the foundation for a free democratic society.
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