Why Google can't be your avatar in court: Avidan Y. Cover

Google, Facebook and other powerful tech companies say they tried to resist assisting the U.S. government in its massive surveillance operations. Tech titans like Yahoo reportedly challenged government surveillance requests in court, albeit mostly unsuccessfully.

But you know who hasn't been able to challenge these requests in court? We the people.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In the digital surveillance age, however, tech companies are our avatars. They speak for us and act as the primary check on government overreaching.

The exclusion of you, me and every American from challenging government surveillance has its origins in the third-party doctrine. The basic concept, embraced by the Supreme Court, is that when you share information with a third person, you can't say your privacy has been violated if the person shares that information with the government.

Similarly, you don't have a reasonable expectation of privacy in the phone numbers you dial through Verizon or AT&T or the email address you type in Gmail. Whether you have a reasonable expectation of privacy even in the content of your emails is still unsettled law. The Internet provider or online retailer decides whether it will challenge the government's request for user data.

When it comes to national security, the Foreign Intelligence Surveillance Act and the Patriot Act require tech companies to comply with government requests for customer information. Tech companies can challenge the requests both on their own behalf and their consumers', but the whole process is secret. With a reduced standard of suspicion in FISA court, and approval of surveillance applications hovering at 99.9 percent, tech companies are our primary line of defense against intrusions of privacy and government abuse.

But we shouldn't count on tech companies to speak for us. Corporations are different from individual people. Even if Google is committed to do no evil, it may be unable to empathize with the adverse effects that surveillance has on an individual person. After all, Google also is monitoring you, if only for financial profit.

Tech companies such as Microsoft and Amazon also have entrenched, highly profitable relations with the government. They may not want to upend significant sources of revenue. Litigation against the government is both complex and costly. Legislative extension of immunity to tech companies also means they have less reason to fear consumer lawsuits. Finally, the cloak of secrecy that surrounds the surveillance process may lead companies to comply, believing their cooperation won't see the light of day.

To be fair, tech companies have fought some government requests. And they may have good reasons for challenging surveillance: terms of service agreements assuring consumer privacy, maintaining customer trust, sincere unease with government surveillance and secrecy, and inconvenience caused by compliance.

But even with the best of intentions, tech companies shouldn't be relied on to make effective arguments asserting their individual customers' rights. Because of secrecy rules, they can't confer with individual people to ask how monitoring affects them. By inserting the tech companies in place of the people, this avatar dynamic upsets the structure of the Constitution and the Fourth Amendment. The purpose of the Fourth Amendment is not simply to guard individual privacy but to keep the government in check through the people's oversight. By limiting the government-checking function to a handful of powerful tech companies, we break faith with that tradition.

Google and other tech companies have called for greater transparency, requesting the release of the number and scope of national security requests and FISA disclosures. That is a start. Pervasive secrecy is an enemy of government premised on checks and balances. But further change is needed in the law. We should overhaul the third-party doctrine.

As Justice Sonia Sotomayor suggested last year in the Supreme Court's decision holding warrantless GPS surveillance unconstitutional, disclosure of information to Verizon or Amazon should not result in a loss of privacy. At a minimum, notice should be given to tech company customers, the subjects of surveillance, as soon as is practicable, so that they may challenge such surveillance if they so choose.

Going online should not push the Fourth Amendment's protections offline.

Avidan Y. Cover is assistant professor of law and associate director of the Institute for Global Security Law and Policy at Case Western Reserve University School of Law.

Source: http://www.cleveland.com/opinion/index.ssf/2013/07/why_google_cant_be_your_avatar.html

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