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Andrew Speidel

Professor Martin

English 1101

4 December 2018

Always Watching

Every day, people entrust large computing companies like Apple or Google with large

amounts of personal information, often with the expectation that it will be kept private. However,

users need to consider how these companies might respond if the government were to ask for that

information. According to Kalev Leetaru, many such companies refused to comment when asked

this, and some even said they would allow the government to use their devices for surveillance

(para. 1). Governments should only be allowed to demand a user’s data from technology

companies like Apple or Google with a warrant because a balance must exist between privacy

and security and governments can misuse data to gain power over its citizens.

The first place any American will point in a discussion about privacy is the Fourth

Amendment to the Constitution, which requires the government to have a search warrant based

on probable cause in order to proceed with the search and seizure of property. This brings about

the debate of whether information is a type of property. As stated by Jennifer Daskal in her

article “Public and Private Eyes,” the Fourth Amendment does not protect citizens from

surveillance from the government; it just prevents unnecessary search and seizure (para. 7). The

Fourth Amendment simply draws a line for the government, defining a moment when it goes too

far. This line is applied to every investigation from petty theft all the way to federal offenses, but

it is often overstepped in the digital world because, in the words of Daniel J. Solove, a law

professor and privacy expert, “In U.S. law, a person does not retain any privacy rights when
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information becomes public. In Canada and many European countries, these disclosures do not

imply the loss of all such rights,” (“The End of Privacy?”104). This means that in the United

States, if a piece of data is collected without a warrant, it cannot be used as evidence in a court of

law, but if it has in any way become public, for example if an ex-lover leaked secrets about a

person, it can be used in court. The same goes for large companies. If Facebook changes its

privacy policy, and something is no longer explicitly protected, it can be considered public

information. This takes away a significant amount of a citizen’s control over their information,

making more of it legal to collect and use than it might seem. Without regulations on

government surveillance, law enforcement could simply search through a person’s search history

and phone calls until they find something incriminating. Digital privacy must be regulated the

same way search and seizure is. More strict privacy laws that directly address electronic

information that require the government to obtain a search warrant before investigating a

person’s online information would help prevent potentially incriminating data from being

collected from people without the knowledge of the individual.

Incrimination, however, is not the only reason for a government to collect data from its

citizens. In an article for the Washington Post, Solove writes that even if the government were to

record only phone call metadata, information like duration, phone numbers, etc., and not the

actual call itself, it can still be used to determine a person’s lifestyle, associations, and ideology

(“5 Myths” para. 4). This means government officials could potentially use this data to influence

elections based on statistics, or even track people with the intent to arrest them if they step out of

line because they have a suspicious search history. If such data collections required a search

warrant, the judiciary branch of the government would be involved to decide whether it is

necessary to collect the data and prevent officials from collecting data for their own benefit.
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Many people would argue that slowing down investigations with such measures would be

a risk to national security, and while this may be true to some extent, it is not completely

accurate. Solove writes, “Most people concerned about the privacy implications of government

surveillance aren’t arguing for no surveillance and absolute privacy. They’d be fine giving up

some privacy as long as appropriate controls, limitations, oversight and accountability

mechanisms were in place,” (“5 Myths” para. 4). Having fewer limitations on the government’s

ability to seize citizens’ data could improve national security greatly, but it would also make it

much easier for corruption to blossom within the government. Instead, it is important to find the

right balance of privacy and security, since too little of either can cause devastating results. With

warrants for access to data, the government could be regulated enough to prevent corrupt uses of

data, but also still be able to access it when it is deemed necessary.

A great example of finding this balance is the British Investigatory Powers Act passed by

Parliament in 2016. Daskal describes it as a statute that allows courts to demand data from

companies and collect large portions of it with a single warrant, but it also requires the executive

branch to acquire a warrant from a judge to collect any of it (para. 2). While it is still

controversial and frequently debated, it creates a balance between privacy and security, and it

creates regulations that are specific to the data being collected, thus preventing misuse of that

data. It also allows the government to collect and use data when it is deemed necessary, leaving

room for national security. The exact same statute might not work for the United States, but

addressing the topic directly with a statute that has room in it for both sides of the argument is

something that needs to be done.

If the government wants to collect data from large technology companies, it should be

limited to only doing so with a warrant to maintain balance between privacy and security and to
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prevent corruption. The United States Government is built, in part, on the principle of checks and

balances and needs to keep any one branch from becoming too powerful, so the regulations on

surveillance and collection of information belonging to citizens must reflect this, so the year

2084 will not look like George Orwell’s 1984.

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Works Cited

Daskal, Jennifer. “Public and Private Eyes.” Foreign Affairs, Foreign Affairs Magazine, 12

Jan. 2018, www.foreignaffairs.com/reviews/review-essay/2017-10-16/public-and-

private-eyes.

Leetaru, Kalev. “Will Governments Turn Our Smart Devices Into A Massive Surveillance

Network?” Forbes, Forbes Magazine, 10 Oct. 2018,

www.forbes.com/sites/kalevleetaru/2018/10/09/will-governments-turn-our-smart-

devices-into-a-massive-surveillance-network/#21c0b12226b6.

Solove, Daniel J. “Five Myths about Privacy.” The Washington Post, WP Company, 13

June 2013, www.washingtonpost.com/opinions/five-myths-about-

privacy/2013/06/13/098a5b5c-d370-11e2-b05f-

3ea3f0e7bb5a_story.html?noredirect=on&utm_term=.353e29c4e7ff.

Solove, Daniel J. “The End of Privacy?” Scientific Magazine, 2008, pp. 101–106.