January 23, 2014

Do We Need A Constitutional Amendment Restricting Private-Sector Data Collection?

Adam Thierer

Former Senior Research Fellow

In an editorial in last Sunday’s New York Times (“Madison’s Privacy Blind Spot”), Jeffrey Rosen, a leading privacy scholar and the president and chief executive of the National Constitution Center, proposed “a constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T.”

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In an editorial in last Sunday’s New York Times (“Madison’s Privacy Blind Spot”), Jeffrey Rosen, a leading privacy scholar and the president and chief executive of the National Constitution Center, proposed “a constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T.”

Rosen’s essay lacked details, but during a debate with me on NPR’s “On Point with Tom Ashbrook,” he said his proposed amendment would limit “outrageous and unreasonable” collection practices and would even disallow consumers from sharing their personal information with private actors even if they saw an advantage in doing so.

There are several problems with Rosen’s proposal—legal, economic and practical. The bottom line is that a constitutional amendment would be too sweeping in effect and that better alternatives exist to deal with the privacy concerns he identifies. 

Conflating Two Different Things

First, it goes without saying that a constitutional amendment is not a matter to be taken lightly. It alters the underlying fabric of our republic and represents the ultimate legal constraint. Rosen nonetheless thinks one is needed to cover both governmental- and private-sector data collection practices, even though the Fourth Amendment already applies to government.  

Many people are rightly outraged about the extent of government surveillance activities that have come to light in the wake of the Snowden revelations. A crucial component of these revelations is that our government is increasingly vacuuming up data from private entities—sometimes with their consent, but often without those private entities having any choice in the matter (or perhaps not even knowing about it at all).

This leads many privacy advocates to make a big leap: Because much of the data that our government collects today originates from private data collection efforts, we should just treat those private entities the same as government actors. “Once data is collected by private parties, the government will inevitably demand access,” Rosen says. Therefore, he says, we should impose the same data collection restrictions on private actors that we impose on governments.

Of course, it’s always been true that “the government will inevitably demand access” to private data, but to the extent it is a growing problem, Rosen and other privacy advocates should redouble their efforts to constrain government surveillance powers and the ability to indiscriminately suck up privately held data. We could start with strong ECPA reform, elimination of the third-party doctrine, and other bolstered Fourth Amendment constraints on national security and law enforcement powers.

A Private Entity Is Not Anything Like the Government

Importantly, a private entity is just not the same as a government entity, and we should continue to distinguish between them when crafting data collection policies. Rosen says that “distinction between surveillance by the government and surveillance by Google makes little sense,” but in reality, the differences between public and private entities remains profound. Private entities cannot fine, tax or imprison us. And while we can escape the orbit of private companies and their services, the same is not true for governments.

We need to have serious discussions about how to help people better manage their privacy preferences, but if we begin those conversations by mistakenly conflating government and corporate power, then the end result will be sweeping controls on our modern information economy.

Which is the next problem with Rosen’s proposal: It would create serious social and economic trade-offs that he fails to consider. In terms of social trade-offs, a constitutional amendment limiting data collection might conflict with certain speech and information-gathering freedoms. As Professor Eugene Volokh has noted, at least here in the U.S., “We already have a code of ‘fair information practices,’ and it is the First Amendment, which generally bars the government from controlling the communication of information … whether the communication is ‘fair’ or not.” Meanwhile, recent commercial speech jurisprudence—such as the Supreme Court’s 2011 decision in Sorrell v. IMS Health Inc.—has bolstered First Amendment protections for data-gathering and use.

There would also be economic trade-offs associated with Rosen’s proposed amendment. Private data collection is the fuel that powers our information economy. It creates value for consumers by making possible innovative goods and services at a great price—often free. Banning private data collection and use will likely mean fewer choices or higher prices.

That’s why many of us already trade away some of our personal information in exchange for digital services that improve our lives in other ways. For example, the same location “tracking” techniques that Rosen and many others decry as privacy violations are also what enable the free mapping and traffic services that we rely on daily. Shouldn’t we be allowed to make that trade?

Astonishingly, Rosen doesn’t seem to think that we should be free to do so. During our NPRdebate, he said his amendment would disallow individuals from surrendering private data or privacy because he viewed these rights as “unalienable.” But Rosen should keep in mind that not everyone shares the same privacy values and that many of us will voluntarily trade some of our data for the innovative information services we desire.

If that choice is taken away from us then “privacy regulation,” as privacy scholar Daniel Solove has recently noted, “risks becoming too paternalistic. Regulation that sidesteps consent denies people the freedom to make choices,” Solove argues. “The end result is that either people have choices that are not meaningful or people are denied choices altogether.” By making privacy choices for us, Rosen’s proposed amendment would likely suffer from that same sort of privacy paternalism.

Such paternalism is particularly problematic in this case since privacy is such a highly subjective value and one that evolves over time. As Solove notes, “the correct choices regarding privacy and data use are not always clear. For example, although extensive self-exposure can have disastrous consequences, many people use social media successfully and productively.” Privacy norms and ethics are changing faster than ever today. One day’s “creepy” tool or service is often the next day’s “killer app.”

Finally, practically speaking, a constitutional amendment is overkill since many other options exist for protecting individual privacy from private data collection efforts. User education and empowerment is essential. So, too, is privacy by design and an expanded role for privacy professionals within private organizations. Targeted enforcement of existing laws, torts and other measures will continue to be applied here and perhaps even expand in their focus. And, again, more constraint on government’s ability to commandeer private databases is absolutely essential.

These are all far more practical and less-restrictive steps that can be taken without resorting to the sort of constitutional sledgehammer that Jeff Rosen favors. We can protect privacy without rewriting the Constitution or upending the information economy.