A few thoughts on privacy and the public/private distinction

In another place, a commenter suggests that by "reserv[ing] the right to search your information (basically, anything on their servers in any shape or form) for nebulous research purposes[,] Google is doing harm...." Asked by me to clarify what the "harm" involved is, she asks if I would raise the same question if one substituted "FISA" for google. Setting aside the problem of terminology (is it FISA that is of concern, or the matters that FISA regulates?), I infer that their concern is privacy.

But government and private sector are apples and oranges, so Google and FISA make poor analogs, albeit in an interesting way (interesting enough to reproduce over here, apparently!). There is a great deal of information that we willingly hand over to the private sector with nary a thought but that we would balk at handing over to government. As I see it, the crux of the controversy over the warrantless data mining program, for instance, wasn't that the telcos had certain kinds of information, it was the government's getting its grubby mitts on that data that worried people.

The analysis applies to all sorts of private activity, but two more examples will suffice to make the point. Credit card companies, almost of necessity, build up a detailed record of what you have bought and where, and if you carry a cell phone, your provider can track your location quite precisely as your phone registers with various towers. Most citizens happily understand and accept giving this information to private companies, but many of the same citizens would hesitate at the idea of providing such a detailed record of movement to government. And it's really government that people have a problem with, I think, not just the aggregation of data that attends government collection as I think Justice Breyer hints at in Active Liberty; if you had a conglomerate that provided both cell phone service and a credit card, the combination of this location and activity data in one set of hands would not trouble most customers. At an instinctive level, most Americans understand that government is not to be trusted. That is a healthy trait, albeit one that has been under assault from the left for nearly a century and that is finally threatening to give way as the nation collectively bawls "mommy! I hurt myself!" over healthcare.

My interlocutor responds to the foregoing by saying that Google and the government can be considered similar insofar as they "could have the same intentions for your data, and you have to 'trust' them to handle it in a legal, respectful and diligent matter." She points out that she can "vote people out of office that support things like FISA, and I can choose to not use Google for that reason as well."

This is unpersuasive, in my view - specious, in fact. Of course one may participate in the democratic process, but while the component parts of such participation - voting, for example - are individual rights, self-government is necessarily a collective right. While an individual participates in that collective right through the exercise of individual rights, and while those individual rights are themselves important, participation in a decision is quite different from deciding. You, as an individual, can choose not to use Google if you have privacy concerns. But you as an individual cannot "vote ... out of office" a President who has done things you don't approve of (still less, a legislator who has supported things you don't approve of). You can vote against a President. You can vote against a legislator, if you happen to live in their district (hence the paranthetical in the last-but-one sentence: there are any number of bills that may pass on the votes of legislators you can't vote for over the objections of the ones that you can). But this is to participate in the decision, not to make the decision. You have no direct personal control over government that turns only on your own choices, in direct contrast to your purely volitional relationship with any given private entity.

In many ways, I think that's the taproot of the government / private sector distinction: you as an individual can do nothing vis-a-vis government without the assent of the community, and cannot stop something that has such assent. That lack of control over matters in which one has significant personal stake is one of the primary reasons why the sphere in which government can legitimately and legally act must be tightly limited to only those functions that are irreducibly and clearly needful of direct governmental administration.

Post facto:
The power of the keys (2/25/10)