How Low Has Trump Gone to Tap My Internet?

First Trump put Ajit Pai, former lawyer for Verizon, in the role of chairman of the F.C.C. That move foreshadowed where the gains under the Obama administration for consumers were headed. The new Chairman, and Republican majority on the commission, revoked rules requiring telecommunication companies to protect the privacy and security of consumer information. Next Chairman Pai wants to re-reclassify the internet. You all will remember this was the solution to the net neutrality challenge a couple of years ago. Chairman Tom Wheeler, at President Obama’s urging, shifted internet categories from information service to utility. As a utility, the internet must observe “net neutrality” as a common carrier.  Now there is talk of re-reclassify it out of that category.

But wait, wait, there’s more! Using its ancillary powers to manage communications, Congress voted to give “cable companies and wireless providers free rein to do what they like with your browsing history, shopping habits, your location and other information gleaned from your online activity … [and to] prevent the Federal Communications Commission from ever again establishing similar consumer privacy protections.” That is according to Tom Wheeler, in an op-ed piece in The New York Times this week, “How the Republicans Sold Your Privacy to Internet Providers.”

I have a quibble with his depiction of this activity. It is not anywhere established in law that it is “your privacy” to sell. In fact, what Wheeler does not say is that internet companies already do much of this kind of thing. Recently I asked a friend of mine who lives in Northampton, and with whom I was originally having a conversation about internet law and policy, a social question about whether there were any women’s bars left in the area. (Northampton Massachusetts has the highest percentage of same sex female households in the country.) As he had been doing in our professional conversation, he looked up some things about the women’s bars in a search engine on the internet. A straight man, he later joked about how he is now repeatedly being served ads directed to gay men who want to find a lawyer. That’s not magic, that is called target advertising, and it is how allegedly “free” services, such Google or Facebook – and just about every app on your smart phone -- makes money.

Taking the consumer privacy aspect out of the equation for a moment, one could read this new bill as a leveling of the use of this kind of information among both telecommunications and internet platforms. It might be worth mentioning, once again taking consumer interests out of the picture, that the underlying business issue prompting some form of “net neutrality” rules a few years ago was competition between telecommunications and internet companies. Internet companies won with the assumption that they represented the interest of consumers. That assumption has not yet been entirely tested, in my opinion, but what is clear is that consumers are merely the table upon which the ping pong ball is going back and forth.

Let’s put the consumer back into the equation. I quibble with Wheeler’s position because consumers do not have privacy for Congress, or anyone else, to sell. Consumers do not own their personally identifiable information, browsing history or shopping habits. Numerous state laws require entities to report a breach of personally identifiable information as a measure of credit protection, not because the consumer has any right to that information. Intellectual property laws do not apply because in such “facts” there is no “original work.” The United States has no declared right to information privacy (except a far-flung marginal 1970’s supreme court case, Whalen v. Roe, which was really about medical privacy protection and only touched on “information” privacy in dictum). User privacy should be protected across the platforms, not just in one or the other.

Moreover, just because the government has not protected online privacy does not mean that the only conclusion is to go to the lowest common denominator. Another approach would be to say that online consumer privacy joins a thousand other laws that require revision after the emergence of an information economy.  In short, internet companies require regulation on matters of consumer privacy too. We should be moving the dial up, not down. Unfortunately, the Trump administration direction on other public policy issues such as health care, environmental sustainability, education, away from consumers and citizens and towards moneyed, private interests, is being played out similarly with all forms of communications privacy.

That observation goes to my larger point. A telling connection exists between this new bill and Trump’s infamous tweets about President Obama’s phone “taps.” The distinction between government surveillance and consumer privacy in the electronic realm are two sides of the same coin. Meaning: the very nature of the electronic realm collapses the distinctions. The distinctions between government and corporate surveillance are collapsing as well.

We have known this last point since the USA-Patriot Act brought attention to questions about how and in what ways the government can collect information. One method is simply to buy it. Let me be clear: while there are constitutional provisions and protections against the collection of information about individuals in criminal and civil laws such as the Electronic Communications Privacy Act, albeit tremendously compromised under the circumstances of advanced technologies under grossly outdated law, there is no constitutional protection against the government purchasing information about individuals.

Prior to the internet and rise of consumer debt as the modus operandi of contemporary economics and twentieth-century upward mobility, the government would be the entity most likely to compromise an individual’s privacy in the gathering of information, particularly as those activities applied to criminal investigations. After those developments, private entities have tremendously superseded government’s scope. Most observers of privacy, for example Bruce Schneirer, have more concerns about “consumer privacy” in the electronic realm than “government surveillance,” if one wants to think about them as separate categories.

One should think more about their connections. These two areas are not so separate. Not only can the government purchase information about individuals from private data stores, but an array of corporate entities now gather, compile, trade and sell that information. Take one example: the CEO of Axiom immediately following the events of September 11 publicly put himself in the service of government investigative services because he knew that his information company probably had some of the most detailed and well collated transactional data in the world. I am glad that he did under the circumstances, but my concern, and it should be yours, is that prior to and since these extraordinary events, no one, including our Congresses, Democratic and Republican, have taken a step back and said, “Hang on, do we want to put some controls and due process into this flow of information?” We have not, which leads us to this historic moment. Surveillance brought to you by the secret FISA court over which President Trump objects is not so different from what he has allowed Congress to promote with this bill and the carte blanche with which Commissioner Pai now acts to strip away every form of consumer privacy protection.

I was an English literature major, so I know that “A foolish consistency is the hobgoblin of little minds …” But I am also a lawyer steeped in the experience of internet technologies. This consistency is not foolish. Maintaining an academic and/or administrative distinctions between government surveillance and consumer privacy may be that which keeps us from seeing the obvious. Both work hand in hand to diminish the quality of our personal lives and the ability for people to act with dignity in politics. Those concerns should inform consumer and citizen action to assert control and assign rights.  In so doing, we all might begin to make some sense out of what has otherwise become ridiculous. Whether Congress had anything to sell or not, the ridiculous comes at our expense. And while Trump’s tweets and Spicer’s dissembling resembles more a circus than a forum, rich meaning about the integrity of our lives and democratic republic lies not too far beneath the surface.