Will Lina Khan’s Concerns About Privacy Extend to Government Abuse of Private Data?

Lina Khan, Federal Trade Commission Chair, announced her intention Monday to push for more privacy rules to govern how big tech companies handle the personal data of its customers. As welcome as her announcement was, many civil libertarians are left wondering: Will Chair Khan take the next step and address how warrantless, government surveillance is enabled by the sale of Americans’ data to law enforcement and intelligence agencies?
 
Khan promised to “reassess” rules around what data companies can collect. She called the current notice and consent framework “outdated and inefficient” in a big tech business model “that seems to incentivize endless tracking and vacuuming up of users’ data.”
 
She told the attendees at the Global Privacy Summit, “When faced with technologies that are increasingly critical for navigating modern life, users often lack a real set of alternatives and cannot reasonably forgo using these tools.”
 
Most consumers, she said, have no concept of what kinds of data are being collected and where their personal information is going. We would add that this also includes the vast amount of personal data that large social media platforms sell to data brokers, who in turn sell Americans’ data to the government.
 
Data brokers gather Americans’ race, ethnicity, religion, gender, sexual orientation, and income level; major life-events like pregnancy and divorce; medical information like drug prescriptions and mental illness; real-time smartphone location; details on family members and friends; where we travel, what we search for online, what doctor’s office we visit, and which political figures and organizations we support.
 
Law enforcement and intelligence agencies in recent years have purchased this data in bulk from data brokers, allowing them access to a full profile of tens of millions of Americans and their activities. Along the way, agencies bypass the Fourth Amendment’s bothersome requirement for a probable search warrant to search our digital effects. The government’s stance is too cute by half: Since no law specifically prohibits purchasing data, why shouldn’t federal agencies be able to do the same as the private sector?
 
The reason, of course, is that when consumers’ private data is sold by brokers to a mattress company, the result is often no more than a mattress ad appearing in one’s social media feed. But when the government engages in “vacuuming up” data, it might hit a home with a swat team in the dead of night, arrest citizens and charge them with crimes. The Founders had a keen appreciation of these awesome powers of officialdom, which is why they took such pains to circumscribe the government’s ability to surveil.
 
As serious as Khan’s concerns are about the potential for misuse of data by the commercial sector, abuse by the government is an even greater danger.
 
With the likely approval after Easter of Georgetown University lawyer Alvaro Bedoya as the third Democratic seat on the FTC, Chair Khan will have the working majority she needs to pursue privacy rules.
 

• Lina Khan should take this opportunity to examine how data brokers – unregulated and operating in the shadows – sell Americans’ personal information to commercial and governmental buyers alike.
  
  

She might also want to coordinate her thinking with Sen. Ron Wyden (D-OR). Sen. Wyden’s bipartisan Fourth Amendment Is Not for Sale Act would close the legal loophole that allows the government to buy our personal information without court authorization.