Surveillance at the Source

17 Pages Posted: 21 Oct 2014 Last revised: 2 Dec 2014

David Thaw

University of Pittsburgh - School of Law; University of Pittsburgh - School of Information Sciences; Yale University - Information Society Project; University of Pittsburgh - Graduate School of Public & International Affairs

Date Written: October 20, 2014

Abstract

Contemporary discussion concerning surveillance focuses predominantly on government activity. These discussions are important for a variety of reasons, but generally ignore a critical aspect of the surveillance-harm calculus – the source from which government entities derive the information they use. The source of surveillance data is the information "gathering" activity itself, which is where harms like "chilling" of speech and behavior begin.

Unlike the days where satellite imaging, communications intercepts, and other forms of information gathering were limited to advanced law enforcement, military, and intelligence activities, private corporations now play a dominant role in the collection of information about individuals' activities. Private entities operate social networks, instant messaging, e-mail, and other information systems, which now are the predominant means through which people communicate. Private entities likewise control the physical and wireless networks over which these systems communicate.

This short Essay separates surveillance into information "gathering" activities and information "usage" activities and examines the distinct, standalone privacy harms potential to each. It then argues that while modern government surveillance focuses primarily on usage activities, private corporations engage in information gathering activities and separately use that information in their profitable business activity. Additionally, the fact that they possess such information makes private corporations a logical "feed" for information used in government surveillance.

Profit-making efforts, unlike public functions, must advance the interests of shareholder return, and can only consider privacy or similar concerns to the extent that those concerns are subject to regulation or can be justified as market competitive. This Essay argues that since neither exception is common, the primary incentives of private corporations are to gather and use as much information as possible, which increases the probability of "chilling effects."

Keywords: privacy, surveillance, public-private partnerships

Suggested Citation

Thaw, David, Surveillance at the Source (October 20, 2014). Kentucky Law Journal, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2014-40. Available at SSRN: https://ssrn.com/abstract=2512121

David Thaw (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

HOME PAGE: http://www.davidthaw.com

University of Pittsburgh - School of Information Sciences ( email )

Pittsburgh, PA 15260
United States

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of Pittsburgh - Graduate School of Public & International Affairs ( email )

Pittsburgh, PA 15260-0001
United States

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