Isabel Simon (PO ’18)
In October 2016, the Federal Communications Commission (FCC) under the Obama Administration voted to require that broadband providers (Comcast, Verizon, AT&T, etc.) get permission from users before collecting and selling their private information. The requirements were set to take effect later this year. On March 28th, Congress voted 215-to-205 along party lines for a bill, S.J. Res. 34, that would derail those plans, and obstruct similar ones in the future. In other words, the bill would allow broadband companies to sell user information and metadata for marketing purposes without their consent. Three weeks ago, on April 3rd, President Trump signed the bill into action.
This bill, initially introduced by Senator Jeff Flake (R-AZ), aims to “protect consumers from overreaching Internet regulation,” and loosen restraints on broadband companies. The bill would put Internet providers more on par with Internet companies such as Facebook and Google. While Internet providers fall under the jurisdiction of the FCC, the Federal Trade Commission (FTC) regulates Internet companies, and does not consider browsing history or app use to be private or protected information. As a result, these companies enjoy less oversight than broadband services, and users have less privacy protection.
Opponents of the bill say that it chips away at user’s Internet privacy. However, many technology experts assert that Congress’s vote will not actually change all that much about Internet privacy: we already give up personal information constantly through our smartphones. To the average Internet user, the main effects of the bill will be more personally targeted ads, and users have never had legal protection against these annoyances. But opponents of the bill look at its enactment as an indicator of a greater, more dangerous trend that needs to be stopped: the diminishing right to privacy in the use of technology. The right to privacy, opponents state, is a constitutionally recognized one. Indeed, the Fourth Amendment of the United States Constitution says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
The explicit right to Internet privacy, however, is not clearly listed. Of course, the Framers of the Constitution could not have conceived of the Internet when they drafted the Bill of Rights. Yet, the Supreme Court, in Griswold v. Connecticut (1965), elevated privacy to a level of constitutional protection through the Fourth Amendment. Since the inception of modern technology, particularly the Internet, local and federal courts alike have grappled with applying the Fourth Amendment to the ever-changing technological sphere. Even before the the Internet, for example, in Katz v. United States (1967), the Supreme Court had to determine whether or not the unwarranted wiretapping of a public telephone booth conversation by police violated the Fourth Amendment. The Court determined, with a principle that still stands, that the Fourth Amendment protects “people, not places.” In other words, the right to privacy extends beyond the intrusion of a physical space.
The Supreme Court has never officially overturned Katz, and its rationale has technically survived to this day. But 40+ years of technological advancements can alter the application and meaning of a legal standard. It is increasingly difficult to consistently apply a right to privacy in a modern context as the Internet expands and becomes more intertwined with corporate interests. While the inventor of the Internet envisioned it as a tool for equal access to information, it has transformed into a marketplace where corporations are the consumers, and a user’s Internet activity is the product.
Between the increasingly corporate nature of the Internet and its ubiquitous presence in all aspects of daily life, online privacy has been, and will continue to be a contentious issue. On one side is the argument of a constitutional right to privacy; on the other side is a more conservative argument for deregulation of the web. Additionally, the compromise between national security and privacy plays an important role in these debates. The U.S. Patriot Act, passed days after the September 11, 2001 terrorist attacks in Manhattan, offers a good example of conversations about balancing rights with a national interest.
While the bill enacted a few weeks ago might make minimal waves in everyday Internet usage, it does signal a symbolic movement towards online privacy deregulations. Clearly, there is strong support for such deregulation in the government. But there is also strong opposition, and it is unlikely that it will waver. With the current political composition in Washington, it is likely that we will continue to see a further erosion of online privacy rights in the next few years. This will come at the expense of the average citizen, and will greatly benefit corporations who have an interest in our information. This debate underscores the difficulty of balancing rights, particularly newer ones, with national interests when modern technology is moving forward at a faster pace than Washington.
