Privacy Needs the First Amendment, Doesn't Violate It, Experts Say

We’re dealing with the possibility that “if we have a reading of the First Amendment that privacy equals sensitivity, that reasonable regulation...in the content operation space equals censorship … we will have no meaningful regulation of information flows of the digital age platform,” said Neil Richards, law professor at the Washington University School of Law, told a forum on surveillance and democracy that the Knight First Amendment Institute at Columbia University hosted at the National Press Club.

Nathalie Marechal, co-director of the Center for Democracy and Technology's Privacy & Data Project, said that from the 1970s through the 1990s, the focus was on placing guardrails on the collection and use of data. But after 9/11, “surveillance does a complete 180, turning … away from concerns about government overreach to ‘No actually, the government needs to be able to collect more information, [so] break down this information silo.’”

Now “you have the National Security Agency ... and Google ... both pursuing this logic of, 'We must collect and organize and understand all the information in the world,’ in one case, for the purpose of national security, in the other case, for the purpose of commercial success.”

But since COVID-19, mild regulations have set frameworks for the development and use of technology, Marechal said. “A number of tech leaders really construed that as an existential threat and decided that, ‘Well, if the way that we want to do business is being deemed antithetical to democracy, then we're just going to have to get rid of democracy.’”

This ideology is “rooted in the idea" that artificial general intelligence "is coming, and it's going to solve all our problems. Therefore, we must get there as quickly as possible. Therefore, we have not just the right but a[n] ethical mandate to bulldoze through any aspect of the democratic process or checks and balances, or even the Constitution that might get in our way,” she said. “We are in early-stage digital authoritarianism.”

Richards agreed but said free expression needs privacy. “Privacy is the shield whereby we can figure out who we are and what we believe and what we want to say and how we're going to say it,” he said. “To say that privacy and free expression are in a sort of irreconcilable conflict misunderstands privacy, misunderstands free expression and ultimately misunderstands democracy and self-awareness.”

At the same time, “some privacy laws are going to violate the First Amendment [as] properly understood,” he said, like laws that protect journalists or government officials, “but most privacy laws don't violate" it.

Richards proposed privacy laws that work without consumers having to do anything. For example, instead of having consumers click a button to opt out of data collection.

In addition, privacy laws should have private rights of action, he said. “Private rights of action have been controversial” because they “create meaningful incentives to actually follow the law,” he said. “Companies don't want law. They don't follow the law. They don't want it to be meaningfully burdensome on them if they break it, and if the laws get passed, and they don't like them,” they create “serious First Amendment arguments to try and take reasonable digital policy that protects people entirely outside of the sphere of democratic self-governance.”

Vermont state Rep. Monique Priestley (D) said arguments like this are working because of lobbying. “There are more lobbyists in our building than there are representatives in our building,” she said. But this is “a real opportunity for education” and for people to talk and learn from each other, from the public to the press to lawyers to those in the industry and everyone else.

“We can't learn it all,” Priestley said. “We can't know it all. We can't even know ..." whom to trust "in most cases."

Richards emphasized language that's used in the debate. The word innovation “is a self-serving, self-contained, selective ideology that emphasizes only the things that tech companies think are good and none of the things that tech companies think are bad,” and we need to stop using it, he said. “Necessity is the mother of invention, and if we build human value, as we need to do, into the reasonable baseline law that should govern interactions between platforms, tech companies, and consumers and government … we'll all be better off.”

Marechal agreed. “The great power competition is totally overblown,” she said, and should not be the reason why there is no regulation.