Turning Internet and Communications Companies into Government Spies

Julian Sanchez details what he calls the governments “Fourth Amendment Shell Game” where the government orders internet and communications companies to collect large amounts of data on customers (data that some of these companies have no interest in or need for) and then the government seizes this data from the companies.  This allows the government to side step the 4^th amendment protections for spying on individuals.  The fourth amendment would require the government to obtain a warrant and obtaining that warrant would be based upon showing “probable cause”.  But by ordering companies to collect this data and then seizing it from them, it is not the government who is spying on citizens but the internet and communications companies. 

            This should be cause for concern because it appears that the government is willfully manipulating and violating American’s Fourth Amendment protections.   By forcing companies to collect this data and then seizing it from them, the government is using private enterprises to do what it legally would not be able to do or would have a more difficult time doing.    Sanchez also states that this “unwisely skews corporate incentives toward broader data retention”.  While many Americans accept that they lose a certain level of privacy by using the services provided by internet and communications companies, there is a growing level of anger over these companies collection and exploitation of this data.  These NSA policies create the need for companies to collect this data and in addition to handing it over to the government; they could also make use of it themselves or sell it. 

            Even if the government could not force the companies to do this and instead asked them to do it, it crosses a dangerous line in terms of governmental interference in the private sector.  Many of these companies may be cooperating with the government out of fear of the consequences if they do not.  The government could pursue expensive and damaging investigations against these companies, hurt them with burdensome regulations, or threaten antitrust litigation if they do not cooperate.  Companies that do cooperate and help the government pursue its agenda of domestic surveillance could be given favored status over those that do not cooperate. 

            This “Fourth Amendment Shell Game” that the government is pursuing is essentially the forcing private companies to act as unpaid subcontractors of the governmental program of surveillance and data collection.  Companies are likely afraid to speak out about being forced to do this out of fear that they will lose customers and therefore suffer a revenue loss or fear government repercussions.  This also undermines transparency and oversight.  If the government was to pursue this program of data collection and surveillance through the traditional means, the courts could provide some kind of check on it by denying certain requests.  Americans should be angry and concerned when the government is forcing private companies to take actions that allow the government to subvert the Fourth Amendment rights of American citizens.  The U.S. Constitution limits the powers of government and protects Americans from the abuses power by government.  If the government is subverting the document that is the basis for American democracy, is it not one more step on the slippery slope to tyranny?