Christopher Soghoian’s article, “An End to Privacy Theater: Exposing and Discouraging Corporate Disclosure of User Data to the Government,” will be published in an upcoming issue of the Minnesota Journal of Law, Science & Technology, but you can read it now via free download from SSRN. Here’s how the article begins:
Today, when consumers evaluate potential telecommunications, Internet service or application providers – they are likely to consider several differentiating factors: The cost of service, the features offered as well as the providers’ reputation for network quality and customer service. The firms’ divergent approaches to privacy, and in particular, their policies regarding law enforcement and intelligence agencies’ access to their customers’ private data are not considered by consumers during the purchasing process – perhaps because it is practically impossible for anyone to discover this information.
A naive reader might simply assume that the law gives companies very little wiggle room – when they are required to provide data, they must do so. This is true. However, companies have a huge amount of flexibility in the way they design their networks, in the amount of data they retain by default, the exigent circumstances in which they share data without a court order, and the degree to which they fight unreasonable requests. As such, there are substantial differences in the privacy practices of the major players in the telecommunications and Internet applications market: Some firms retain identifying data for years, while others retain no data at all; some voluntarily provide government agencies access to user data ‐ one carrier even argued in court that its 1st amendment free speech rights guarantee it the right to do so, while other companies refuse to voluntarily disclose data without a court order; some companies charge government agencies when they request user data, while others disclose it for free. As such, a consumer’s decision to use a particular carrier or provider can significantly impact their privacy, and in some cases, their freedom.
Soghoian, Christopher, An End to Privacy Theater: Exposing and Discouraging Corporate Disclosure of User Data to the Government (August 10, 2010). Minnesota Journal of Law, Science & Technology, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1656494