Who Watches The Watchmen?

By John R. Mariano

It should be just as illegal for Google to download private data as it is for the U.S. government to seize data without a warrant.

The laws that would protect my privacy are also laws that did not anticipate how technology houses private data. If my two-year-old iPhone is already a dinosaur, why are we relying on quarter-of-a-century old laws to regulate the Internet? Internet law is regulated by a privacy law that dates back to 1986.1  4thArtworkNow, in 2014, the evolutions of the information age and technological revolution have outdated laws at a more rapid rate than the previous 80 years.

It is true that laws are written to stand the test of time, but we are asking governments to legislate laws to regulate technology that did not exist or affect most of the population when the laws were originally written.

Back in 1995, 0.4 percent or roughly 16 million global users were using the Internet. Today almost 40 percent of the population or 2.7 billion users access the Internet. The laws that regulate the Internet were written in 1986, nine years before commercial ISPs connected a broader user base and created the modern Internet.2

Yet, one law that some might consider antiquated deserves to carry more authority over privacy rights than major web-based companies appear willing to allow: the Fourth amendment to the U.S. Constitution. Here’s why.

Right now, privacy is a hot button target. Major companies like Facebook and Google would have us believe that their primary objective is to protect our privacy. This is nothing more than a public relations smokescreen. These companies currently take advantage of the very laws that they seek to update.

For instance, in March of 2013, Google’s legal director of law enforcement and Internet security, Richard Salgado, lobbied lawmakers to update the 1986 laws to reflect today’s views on privacy. This stance would lead the public to believe that Google is a defender of their rights. This stance is in direct contrast to Google’s actions between 2007 and 2010.3

Google shutterbug cars were used toward the end of the 2000-10 decade to capture street view images for Google Maps. These very cars were also used to capture Internet data from unprotected wireless networks in over 30 countries. Google was spying on us and in the process they compromised emails, usernames, passwords, private videos, and documents.3 Read more about this issue here.

Google’s actions raise several ethical questions about their policies. To whom does Google have the greatest responsibility to protect privacy? What responsibility does Google have to follow it’s own code of ethics? Where does privacy end and public domain begin? When should Google start to follow its policy? Why is the government waiting to update these Internet laws? How can the public trust Google with their data when Google contradicts its very own policy?

In looking at Google’s Privacy Policy, Google claims that it will not share user information unless certain extenuating criteria are met. Google claims that it will not share user information unless the user consents, a user’s domain administrator requests it, it is an external processing request, or for legal reasons.

Google would have its users believe that the government requesting user data can be justified legally. The key phrase in Google’s Privacy Policy is: “We will share personal information with companies, organizations or individuals outside of Google if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to meet any applicable law, regulation, legal process or enforceable governmental request.” The great debate is this: How enforceable is this governmental request?4

Google is a private company that houses private information with little regulation from the government. But whether they own that information is an unsettled question. Google’s business is unprecedented in the history of the world, let alone the United States. The information they read and house has never before been readily available. It is not encased in an envelope like mail. Google administrators might reason: Why should they be regulated when they help build the technology and infrastructure that houses the information? If I willingly correspond using their service shouldn’t I be held accountable for making my information readily available to Google?

Google might have my data, but that doesn’t mean that the data is their property. When I deposit mail into my mailbox, the government cannot search its contents without a warrant. One may argue that the United States Postal Service is a federal entity and held to a different standard than a private company such as Google. Yet UPS and Federal Express mail are bound by the same regulation as USPS.5 The government has no right to open mail delivered by either of those two private services any more than it has to its open U.S. mail.

The federal postal service, which handles U.S. correspondence, has been an American institution since 1775. The laws that regulate our postal service should also regulate our email correspondence. Although the Fourth Amendment is an old law, it is also part of the foundation of our country. It was also created to protect citizens from abuse of power.

Why is it illegal for any person other than myself to open mail addressed to me, but companies such as Google can release email content to the U.S. government with as little as a subpoena, when a warrant is required for search and seizure. Google currently polices itself, which is commendable, but why are they held to a lower standard than the postal service? Email is just the next step in evolution of private correspondence and should be regulated by the same laws as other, more traditional mail delivery services. When Google read unencrypted data from its cars, it was in violation of the Fourth Amendment.

Very simply put, the Fourth Amendment protects U.S. Citizens from illegal search and seizure. This was written to protect an individual’s privacy and physical locations. (Think about that the next time Google reads your geo-targeted data.) Google is guilty of violating this very basic U.S. right.

Legal issues aside, Google is not acting ethically if it contradicts itself. Google cannot ethically argue both sides of the coin. Its interpretation of which laws govern email is hypocritical. Until the laws are rewritten to specifically govern the information age, email service providers should honor the Fourth Amendment. This law is not outdated: it is fundamental constitutional law that demands adherence. Google should learn from its own testimony that it acted in an unethical manner.

1 Miguel Helft and Claire Cain Miller, 1986 Privacy Law Is Outrun by the Web, http://www.nytimes.com/2011/01/10/technology/10privacy.html?pagewanted=all (January 2011).

2 Internet World Stats, Internet Growth Statistics, http://www.internetworldstats.com/emarketing.htm (March 2013).

3 John Kruzel, Google Wi-Fi Snooping Case Shows Company’s Contradictory Views On Privacy, http://www.slate.com/blogs/future_tense/2013/09/11/google_wi_fi_snooping_case_shows_company_s_contradictory_views_on_privacy.html(September 2013).

4 Policies & Principles, Privacy Policy, http://www.google.com/policies/privacy/ (December 2013).

5 Law Offices Of Youngs & Associates, Mail Fraud, http://www.criminal-lawyers-miami.com/lawyer-attorney-1570582.html (Date Unknown).

John R. Mariano is one of the original eight members of Adobe Social Creative Services. He is a front-end developer who combines the latest CSS3 and HTML5 trends with a background in social campaigns to deliver innovative applications on the tightest deadlines. As a member of Adobe Social Creative Services, he bolstered Adobe Social’s product features and guides clients through emerging trends. Recently, he has moved into a consulting role for Adobe Social. His new responsibilities focus on educating customers on product functionality and enabling them with customized configuration to fit their needs. One of his core duties is introducing the concept of social analytics to a broad audience.

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