Government and private parties

I wanted to bring up the problems that we’ve seen with third parties and non-governmental actors in the Fourth Amendment. One of the problems that Belkin mentions is private power and public-private cooperation. We’ve seen through the Fourth Amendment section that “third parties” and private entities have served as a problem, since the Fourth Amendment only strictly covers governmental actions.

The government seems to have addressed another side of this when it immunized the telecommunication companies from their participation in the NSA’s warrantless wiretapping program. (Incidentally, I read a little more about Qwest later and found out that they had filed a lawsuit against the government for allegedly denying them contracts because of their refusal to participate in this program.) The warrantless wiretapping program on the side of the government is already questionable, but when extended to the private parties it seems that it can be assaulted from both sides: on the one hand, private parties should be protecting our information because it is not as if they provide any sort of security mechanism; and on the other hand, we technically “release” our information to these private third parties, so who are we to restrict how they use the information?

It therefore seems that given the confusingly different and varied array of searches that are available via the Fourth Amendment, ECPA, the various wiretapping acts, etc., which may or may not apply to private actors and the government, that we should have some sort of more streamlined standards for searches. At the very least, I think that we need to admit that there’s been a blurring of the distinction between the government and private actors in this situation. In many ways, the information that private companies amasses through market research, etc., is just as comprehensive as that which the government gets through its methods of data mining. In an age in which the government is effectively applying a lot of pressure on private third parties to cooperate with it, shouldn’t we treat them both equally?

I don’t know if the proper solution is simply to implement more legislation – after all, there’s already such a mess of legislation that yet another law would only seem to really compound the problem. Yet at the same time, it seems like this might be the only solution. I’m also not entirely clear on the exact details of what it would be: we obviously can’t dictate that the government and private parties are exactly the same, but perhaps that in the context of searches and seizures, and especially when data is being given to the government, that private parties should be treated the same?