Right of Privacy

Few people noticed in May when the Senate failed by one vote to end the power of the government to search citizens’ internet search records without a warrant. This provision was a part of the Patriot Act, passed in the wake of the 9/11 fears about terrorists plotting under the noses of U.S. security officials. In 2001, few citizens used the internet as they regularly do today, and thus legislators had no idea of the unfettered intrusion into everyday life this provision could wrought. Unfortunately, almost two decades later, when legislators should know better, this blatant violation of the Fourth Amendment was re-authorized rather than dumped in the historical dustpan to join the Japanese interment legislation and Jim Crow laws prohibiting protests by “socialist” labor activists at the turn of the 20th Century.
U.S. history has shown us that the worst time to legislate security measures is in the face of a security threat. During times of national fear, legislators trod over constitutional rights like an elderly person who has fallen in the middle of a human stampede. The Patriot Act passed in the wake of 9/11 is the most recent example of when civil rights succumb to terror—and not just by terrorists. Few people realize that one of the provisions in the Patriot Act empowers the government to view a citizen’s search results without a warrant.
In other words, the average citizen’s daily search of the web for information ranging from financial advice to help with mental health issues, not to mention everyday shopping and socializing, is free for the grabbing by the government. When algorithms are involved, there is no limit to what could be discovered about a person and, worse, how those discoveries could be twisted against someone the government wants to look bad. On one side, every search one does can, via search engine algorithms, lead in directions that the searcher never intended and does not want. On the other side, every search result can, via government algorithms, result in categorizations about a person, and thus conclusions about a person, that may bear little resemblance to that person, but are completely “legitimate” given the design of the algorithm. In fact, given how victims of police brutality have regularly had their private lives, prior records and social contacts smeared in social media by government officials as a defense tactic against those victims’ lawsuits, one should expect government officials to regularly use algorithms to find and twist an individual’s internet searches into dirt, and then to use social media algorithms to spread that dirt quickly and anonymously. Those same algorithms can then be used to expand smear campaigns to virtually every social contact a victim might have via the internet.
I can use myself as example of what could happen. When I was General Counsel of a mass market perfume and cosmetic company, I regularly did internet searches of the company’s trademarks to find instances of trademark infringement and counterfeiting of goods. My searches for “English Leather” turned up so many NSFW sites that I had to be exempted from our IT’s Department’s blocks that prevented the misuse of the company’s network for streaming porn. What if I ended up on an “enemy’s list” of some future administration because of my support of causes and candidates diametrically opposed to that administration?
Without my knowledge and without any limits to the search, the government could unleash an algorithm-based review of all my searches. My completely innocent and rational searches done to protect my employer’s trademarks could easily be used to make me look like someone addicted to sites run by British dominatrixes and BDSM Masters. If those sites happened to use actors who were underage under U.S. law, the fact my trademark search included those sites, even if I had no intention of clicking on the listed links, could expose me to public ridicule and prosecution by government attorneys. Anyone with whom I regularly associate could then be smeared as someone who is a friend of a porn addict and pedophile. My career and private life, as well as those of my friends and business associates, could be ruined as a result of a warrantless search algorithm and a social-media marketing algorithm.
What this demonstrates is that “security” laws passed on emotion rather than reason are likely to have even more heinous ramifications in the Age of Algorithms. In the days of paper records, limitless searches were at least practically limited because voluminous paper records in multiple locations were harder to find and review. Moreover, the government’s misuse of those records might be stopped before the spread became too wide or permanently engrained in the minds of the citizenry. Now, given the ease in which one’s private life can be laid bare, and the ease in which the government can instantaneously and permanently spread mistruths worldwide via the internet, an unfettered government grant of intrusion in the name of security will be far more destructive to individuals’ rights, and thus their lives. If the Fourth Amendment is to survive the Age of Algorithms, legislators and judges should be even more skeptical of police demands for power to search the internet without limitation, and should choose the protection of individual rights over the expansion of police powers.