Politicians' Data Envy on Display Again in Senate Committee Hearing

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The Senate Committee on Commerce is in the midst of conducting its long-awaited hearings on privacy. This might seem long overdue, considering the European Parliament has for several years been trying to ensure that companies respect consumer privacy. Even China has enacted privacy legislation. Here in the United States, however, only a handful of states have thus far tried to address consumer privacy legislatively.

The topic of privacy in China, the country which instituted the world’s first Social Credit System, would require a separate article. Still, we might wonder why the U.S. has lagged behind Europe in the protection of individual privacy. This can be explained partly by considering the relative preoccupations of legislators on either side of the pond. Whereas the European perspective generally assumes that law is primarily intended to protect private citizens against the ill-doings of big companies, the American tradition assumes that federal law exists primarily to delineate and limit the scope of government action — to protect citizens first and foremost against government overreach. Is there a reason to break with this tradition with respect to the issue of privacy? In particular, what should we make of the proposal touted during the hearings: not an American GDPR, but instead a new privacy and data security bureau at the FTC?

Data collection today is constantly expanding, seemingly without regard to ethics or scruples, limited only by technical capabilities. Keystroke logging, cross-app tracking, even tracking of an email recipient’s IP address — there are plenty of instruments tech companies use to amass a treasure trove of personal data. Some users are oblivious of the extent to which they have relinquished personal information, but most of us have had the eerie experience of being offered, on a side banner ad, a product we just discussed with someone on the phone or in a message or email. But whether curtailing these collection practices (or the deceptive way in which they are sometimes conducted) is the primary motivation for the Senate Committee’s hearing, is doubtful. We suspect that what our legislators might be doing instead is ogling the huge instruments in the well-endowed Big Tech toolbox, with an eye on their own pursuits and projects. When the Patriot Act lapsed through Congressional default in 2020, we might have been lulled to believe that unwarranted spying on American citizens was finally a thing of the past. But what if instead, turbocharged by Pandemic-lockdown-induced reliance on Big Tech platforms for practically all communication, bulk warrantless surveillance has merely shape-shifted?

Whatever improper data mining might be going on in the semi-private tech sector today, make no mistake about it: Our politicians' main concern in conducting hearings like this, and in whatever new legislation or government agencies which may result from them, is to retain control over and ready access to your personal data. We saw this in the latest "settlement" between the FTC and Facebook. Rubber-stamped by a judge about the same time the Patriot Act lapsed, the settlement arguably gave both the FTC and DOJ warrantless access to your personal data. And we’ve seen numerous Congressional Committees proposing initiatives to take more and more control over the formerly free zone of the internet, not only with respect to the warrantless investigation of crimes — well, really, investigation of anything — but also interfering (for our own good, of course) with the free exchange of information. In light of this track record, we think a new bureau, as part of the FTC, tasked with a mission to protect individuals’ privacy, is the most Orwellian proposal we’ve heard in at least a couple weeks.

Consumer privacy cannot be properly protected unless and until the Supreme Court's ruling in Carpenter v. United States (2018) is expanded to the point where it encompasses, not merely a certain number of days of cell-phone location data, but all data shared with social media platforms — or, for that matter, with any other legal business. If personal information is shared pursuant to a valid contract, made for a legal purpose, government should get a warrant before accessing that information. Period. The proposed FTC bureau will be nothing more than a ridiculously overpriced, vaguely mandated agency, allowing the government to informally obtain what it should not be legally entitled to grab without a warrant based on probable cause and particularized suspicion. If we want to restore and protect consumer privacy, we can’t let politicians and bureaucrats continue to feign concern while offering us Potemkin privacy — on our dime!

Amy Peikoff is chief policy officer at Parler. Benjamin Chayes is a historian.

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