National Intelligence Lawyer Wonders Why People Are Fine With Sharing Data On Facebook But Not With The Government

It's a point that's been raised by many people in arguments about privacy and other aspects of government data collection. In a speech given last Friday, the general counsel for the Director of National Intelligence, Robert Litt, broached the topic publicly. After defending the NSA's programs as completely legal (thanks to the Third Party Doctrine), Litt asked more directly:

"Why is it that people are willing to expose large quantities of information to private parties but don't want the Government to have the same information?"

It's a valid question, but not when asked by the overseer of government intelligence agencies. Daniel Stuckey at Motherboard points out that there's a big difference between voluntary and involuntary "exposure."

Now, I'd hate to answer Litt's question so simply by saying that consumers are extorted by their love of what they consume, but it's part of it. And trust in companies that give us free things, that advance self-expression is an inalienable consumer right. If the government, theoretically, already knows everything there is to know?when we didn't directly volunteer our information?it then provides momentum for a rally cry. The shame and disgust when Edward Snowden pulled back the curtain reverberates that government by virtue is supposed to be more clear, more holistic, and an idealized reflection of ourselves.

It's a false equivalent. Thousands of people expose tons of information every day using social media platforms, but they do so with the implicit understanding that the free service is deriving some sort of benefit from their interactions. When the government scoops up the same data, there's no perceived benefit, not even the supposed "targeting" of terrorists.

Furthermore, as Stuckey states, we want to believe our government is above snooping on our "private" interactions. (Private in the sense that they're between individuals, no matter how many others can view or interact with the conversations.) If we initiate the exchange, we don't feel victimized by the lack of privacy.

Beyond that, every social media service has some sort of privacy settings built in that limit what others can see. Most of these have only limited effectiveness, but the fact is that users have the option to exclude others. The underlying platform is the facilitator and therefore, has "earned" the "right" to mine data and can never truly be excluded, and we (for the most part) accept this. There is no "exclude government" option, other than Litt's implicit suggestion: if you don't want the government to see it, don't post it in public arenas.

But the most troubling part of Litt's question is this.

It's great that the U.S. government behaves better than corporations on privacy?too bad it trusts/subcontracts corporations to deal with that privacy?but it's an uncomfortable thing to even be in a position of having to compare the two. This is the point Litt misses, and it's not a fine one.

This is the crux of the issue. When someone asks why we don't value our privacy more, in terms of social networking, they have a point. When someone asks why we're willing to give Facebook plenty of data but resent the government doing the same thing, the point is no longer valid. Handing data to advertisers is a lot easier to stomach than the impression that the government is reading over your shoulder.

Ultimately, though, we should never have gotten to the point where the government's thirst for data on American citizens exceeds the demands of corporations. We expect corporations to act in self-interest. We expect our government to be a lot more selfless and its intelligence agencies more willing to sacrifice some effectiveness in order to protect the rights of American citizens.

If Litt honestly feels people don't have privacy expectations in regards to data shared with a third party, he should put some manpower into launching Facebook.gov (or whatever) and see how many people are willing to sign up. Facebook vs. government isn't a fair comparison and Litt knows it. He's just using the question to prop up the third party exception that enables the NSA to acquire vast amounts of data. What he's doing is making a convenient presumption that these users are aware of the protections they lose by sharing information with a third party -- and, consequently, the government. Part of the "expectation of privacy" is the "expectation," something the Supreme Court has noted, and it's safe to say that many Facebook/Google/Twitter users don't expect the government to be accessing their data.

Finally, there's also the utilitarian aspect. As the New Jersey Supreme Court pointed out earlier, no one uses a cell phone simply to provide location data for law enforcement and investigative agencies. And no one utilizes social media in order to provide the government with a treasure trove of personal information.

Source: http://feedproxy.google.com/~r/techdirt/feed/~3/1RhnJQ8-zog/story01.htm

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