The New Guard | rheacock | December 10, 2013

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The New Guard

Dalia Topelson

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.

At present, companies in the United States are incentivized both economically and legally to take a passive approach when confronted with a takedown request or a government request for information. Challenging a request creates legal costs and puts companies at risk of direct liability for failing to comply with the request or to exercise their right to safe harbor protections offered by the law. In order to challenge a request, a company must assess its legality, but most companies lack the expertise and authority to make these types of judgment calls. This structure is further reinforced in companies’ terms of use and privacy policies, which often give companies sweeping rights to disclose information as they deem necessary. The result is that governments and individuals alike can take advantage of companies’ rational apathy and ignorance to obtain or suppress information uploaded by individuals to these services. This rational, yet passive, corporate behavior comes at cost to individuals, who are progressively using online tools for political expression, creating activist networks and generally championing democratic values.

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.

NOTES

  1. Kim Zetter, “Twitter Fights Back to Protect ‘Occupy Wall Street’ Protester,” Wired, August 27, 2012, http://www.wired.com/threatlevel/2012/08/twitter-appeals-occupy-order/. See also Rachel Weiner, “Twitter earns plaudits for privacy amid NSA controversy,” The Washington Post, June 7, 2013, http://www.washingtonpost.com/blogs/post-politics/wp/2013/06/07/twitter-earns-plaudits-for-privacy-amid-nsa-controversy/.
  2. Mark Rumold, “Yahoo’s Fight for its Users in Secret Court Earns the Company Special Recognition in Who Has Your Back Survey,” Electronic Frontier Foundation, July 15, 2013, https://www.eff.org/deeplinks/2013/07/yahoo-fight-for-users-earns-company-special-recognition.
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December 10, 2013

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