Monday, March 22, 2010

Protection not from the government, but from corporations

A lot of the discussion in class and the issues brought up in the readings have to do with a very important issue—how government can or cannot use large databases of information about individuals held by private companies. I think this issue is indeed one that must be analyzed and considered carefully, but I also think that the current laws governing this are more or less on the right track. While there is definitely room for improvement, the general consensus is that there must be restrictions on government invading citizens’ privacy through these extensive databases.
I, however, want to look at a different issue—how these companies can collect and use information about individuals. While we can all be skeptical of government’s use of this kind of data, I think everyone needs to be much more fearful of how a corporation might decide to make use of this information. As we all know, certain companies have vast amounts of information about individuals which could theoretically be used to significantly harm individuals’ lives.
In our discussion about the Fourth Amendment, it has been assumed that the searches being prevented are always searches by the government. Indeed, much of the Bill of Rights is about what the government cannot do to infringe upon citizens’ rights. However, the Fourth Amendment does not say that it is limited to the government. While the clause about warrants does tie the searches to the government, there is a broader way in which the first clause can be read. It seems entirely plausible that the amendment is not only telling the government that it must not infringe upon citizens’ privacy, but that it is also mandating that the government ensures that no other organization infringe upon this privacy. I do not know the full range of scholarly interpretations of the Fourth Amendment, but I am here to express my own viewpoint on it, even if it might be outside what most experts believe. To actually have privacy be a meaningful right we need to focus on what is being protected—not on whom we are protecting it from. I feel no security knowing that my personal information is safe from the government, but that private companies can access it. How can we go about ensuring that people are given adequate privacy protections from companies which have tremendous amount of personal information?
The issue, of course, is that people have willingly given all of this information over to these third parties in various ways. It would seem odd for the government to tell these companies that there are restrictions on what they can do with information that they have legally obtained. However, I believe that this is the genius behind the Fourth Amendment—it mandates that our privacy be preserved, even if we have not done a great job of preserving it ourselves. Even if a person has given over this information by filling out various forms online, he or she never intended to give some company such complete knowledge about him/herself. Ultimately, despite the fact that the person handed over this information in different pieces, that person’s privacy has been violated. For these kinds of cases, I think the government needs to create a set of laws to fully protect a person’s privacy, and not merely to protect their privacy from one organization (the United States government). I am sure some people might see this as unconstitutional, since this gives government significant reach into the operations of private companies. However, is this not a necessary part of carrying out the privacy protection of the Fourth Amendment? I would be interested in what people think about this issue as a whole, and also how specifically to go about crafting this kind of legislation.

1 comment:

  1. Good post, Sam. I share your concern about the things private corporations might do with the personal information they collect from customers. Your idea of characterizing the Fourth Amendment as a positive, rather than a negative, right is interesting and creative. I will say, though, that the general view is that the Fourth Amendment is a negative right, protecting individuals only from searches and seizures by government agents. Even if that's the case, though, you could make an argument that Congress ought to construct a statutory regime that would limit what private companies can do with the information they collect. (It's likely that Congress would have the power to regulate in this area under the Commerce Clause).

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