An Eerie Feeling of Déjà Vu : From Soviet Snitches to Angry Birds

Abstract

The U.S. government knows a lot about us. Literally, from the moment we’re born to the moment we die, it tags and monitors us. We provide some of that information on the forms we file for licenses, taxes, and major life events. Much of the rest the government collects, without our help, using security cameras, body scanners, license plate readers, and the like. But the data the government gathers itself is a small drop in the ocean of information we constantly generate. To collect and analyze the rest, governments need to outsource to private parties. The traditional way to do this, and the old favorite of totalitarian regimes like the Soviet Union, is to recruit the citizenry. Get them to spy on each other and report back. That method is clumsy, but effective to an extent. The slicker, modern approach used in the United States (and almost everywhere else now) relies on the private sector – the corporations that collect our data in the ordinary course of business. Corporations meticulously record every transaction we have with them, and many transactions we don’t. For a price, it’s all transferable to the government – or anyone else willing to pay – with the click of a button: no need for dark alleys and hushed voices.

The third-party doctrine, which currently gives the government constitutionally insulated access to any information that passes through the private infrastructure, is dangerously outdated. It holds that people have no reasonable expectation of privacy over information they provide to third parties. In this chapter, we propose one possible way to rein the doctrine in – treating many corporations with access to customer data as instruments of state. When a third party acts at the direction or encouragement of the government in collecting information or investigating possible crime, the third party is considered an instrument of the state. Since instruments of state are basically operating as agents of the government, the third-party doctrine doesn’t apply – there are still effectively just two parties, the government and the target of the investigation. We argue that many corporations that exchange data with enforcement authorities should qualify as instruments of state. With respect to the information we disclose to them, Fourth Amendment protections remain in full force.