The nationwide panic engendered by the Justice Department’s subpoena to Google was, according to many lawyers and scholars, a mistake. Timothy Wu, a law professor at Columbia, said that the only interesting aspects of the case concern technical rules of legal procedure. “This particular subpoena does not raise serious privacy issues,” he said.
It is true that the subpoena demands only a week’s worth of searches and the addresses of a million randomly selected websites. Apparently, these aggregations of data alone cannot link any individual to a particular search or website viewing. Nonetheless, the panic was no mistake. If the subpoena succeeds, it will establish an ominous precedent: that the Justice Department can seize Google’s (and anyone else’s) time and property, without warrant or particularized suspicion and, moreover, the seized property need have only dubious relevance to the defense of a proposed law of dubious merit. ACLU attorney Aden J. Fine was right in identifying the subpoena as “another instance of government overreaching.” Google is to be applauded for its courage in resisting it.
Internet Law specialist Susan P. Crawford warns that, while this subpoena does not seek data that most people would consider private e.g., searches which can reveal a person’s unpublicized goals, preferences and problems, sexual, medical and otherwise nonetheless “the next subpoena could ask for that kind of data.” The solution, however, is not to enact more privacy legislation. What we need is a legal system that defends our right to property and contract.
Warren and Brandeis, in originating a “right” to privacy in 1890, extolled the value of privacy to individuals, but stressed that their newly coined right must often yield to the public interest. Thus arose the “balancing test” approach that is now used whenever a right to privacy is invoked from abortion law to search-and-seizure law to tort law. So, if the Bush Administration decides that it is in the public interest to have legislation preventing minors from viewing pornography on the Internet, then a man’s right to privacy in his Internet searches may be sacrificed in order to defend such legislation, depending on the outcome of the balancing test. A judge will weigh the individual’s interest in keeping his searches private against the public interest in the government’s obtaining the data. How does he decide which interest prevails? By his subjective preferences? By public opinion poll? This is no standard. Thanks to the right to privacy, we enjoy privacy not by right, but by permission.
Perhaps it is contempt for the right to property that sustains our legal system’s idea that the only property entitled to vigorous protection from government seizure is that containing “private” information. But Americans must realize that where property goes, privacy follows. One may choose to keep his thoughts and interests within the confines of his own mind. Otherwise, to prevent unwanted disclosure of information, one needs either an exclusive right to a place in which to store it, or a contractual agreement of confidentiality express or implied with others to whom he voluntarily discloses it. It is therefore only through objective laws protecting property and contract against warrantless government search and seizure, that we can safeguard our privacy.
The term, “private,” when used to describe information, is no more objectively definable for legal purposes than is “obscene” or “pornographic.” The referents of such terms change with the fashions; what was once considered strictly private information is today eagerly shared all over the media and the Internet. The terms “property” and “contract,” by contrast, have definite referents. Whether someone owns property or has entered into a contract is a fact; common law doctrines allow judges objectively and predictably to determine whether such rights exist in a particular case. This takes the decision about what information to disclose away from government and puts it where it belongs: in the hands of the individual.
One essential feature of totalitarianism is a government’s ability to punish citizens, not only for what they do or say publicly, but also for what they think and value in the privacy of their own minds. As one privacy advocate has said, a record of one’s Internet searches is “a kind of shadow of the thoughts within your head your interests, your desires, your hobbies, your fears.” If our government thus begins to have access to the content of our minds whenever it decides that this might serve the public interest, nothing can follow but a future of thought control.
”’Amy Peikoff, Assistant Professor of Philosophy, United States Air Force Academy. Reach her via email at”’ mailto:Amy.Peikoff@usafa.af.mil