Democracy Erodes When Data Collection Becomes Surveillance, Panelists Say

“Commercial surveillance is serious, but the reason it's particularly dangerous now is because of the cozy relationship companies have with government regulators,” said Olivier Sylvain, senior policy research fellow at the Knight Institute and law professor at Fordham University. Such regulators “have [a] monopoly on violence, have the capacity to put people in prison or detain them, using information that these companies collect" in non-transparent ways. “That's ... the real danger ... what happens when government agencies get access to this information?”

The “original sin” was Section 230 of the Communications Decency Act of 1996, which gave a waiver of liability to interactive computer services for speech that people conducted on their software, according to Nick Penniman, founder and CEO of Issue One. “What's happened is that we have created an environment in which thugs thrive,” he said. “The apple started rotting about 10 years ago, and now you have … these insanely powerful companies that are great at breeding thugs, and that is a threat to speech," though the act "was meant to be the thing that would help facilitate speech.”

Though he said there is bipartisan support for reform of Section 230, Penniman said he doesn't think that will come soon.

Sylvain agreed Section 230 was the original sin, but doesn't want it repealed entirely. “It has lifted the obligation for companies to attend to potential harms,” he acknowledged. But “there is an objective in Section 230 that is commendable, and that is to ensure that the internet is a vibrant place.”

But the present administration’s social media tactics, tracking what students say online and offering that information to detain them or revoke their visas is where the real questions about protected speech lie, he said. “This is a significant concern to the extent it will force all manner of people to self-censor and even stop engaging in constitutionally protected activities on social media and otherwise,” said Sylvain. “We all benefit from a free environment where we can all speak, those of us who are citizens and non-citizens.”

He said that while sensible monitoring of online content is okay in some cases, when protected speech is limited, monitoring is no longer sensible -- or constitutional.

Surveillance has also increased in other areas besides social media, the panelists said. “There's a very intimate relationship between reproductive freedom and data privacy,” said Molly Duane, senior attorney at the Center for Reproductive Rights. Since the Dobbs v. Women’s Health Organization decision in 2022, abortion rates have risen, through medical abortion via mail and crossing state lines to receive care. As such,“Anti-abortion advocates and politicians are really preying on these loop[holes] in data privacy to find ways to criminalize and harass pregnant people and providers.”

She said some states passed laws to combat the fall of Dobbs that flip typical laws to say that the jurisdiction where the provider sits is the law that controls, instead of where the patient is located. But then having electronic medical records becomes a problem, “because the shield laws don't work if the medical data travels with the patient,” Duane said. “Connections between different systems seem like a good idea in theory, except when you translate it into abortion care and trans healthcare issues, because then all of a sudden the data is in the state where abortion or trans healthcare is prohibited and can be used in nefarious ways by state officials there.”

Though surveillance is certainly an issue, Duane said it's more about how health care data should be used versus how it is being used. “You should be able to share all of your health information with your doctor and then share that with your doctor in another state.” Yet medical data "is being abused by people who have bad intentions,” she said. “As various forms of health care become controversial or political, what does that mean for the safety of doctors and patients? Well, it means that doctors and patients no longer feel safe talking openly to each other or reporting their interactions in their medical files, and that has a bad impact on patient health.”

Said Sylvain, “It's hard to describe the kinds of activities” we have described here “without thinking about them as surveillance.” Sylvain added, “The collection of information, the analysis of information, the use of that information to cause harm, that is surveillance activity.”

But “that the surveillance model is baked into the way in which the most powerful companies do the things they do is not a reason to back away,” he added. “One important piece of the puzzle is attending to the incentive to collect information” through regulations like “data minimization principles, limitations on the kinds of … information that companies can share, whether they can use that information to target content,” etc.

Penniman agreed. “We've seen this before in the history of our country, during the birth of the industrial age, where these companies were totally out of control, polluting the environment, destroying the natural world, destroying workers inside of the factories,” he said. “I'm sure the same argument was made at the time; ‘Well, their entire business model was based on their ability to do these things, and if we slow that down, aren't we gonna kill the economy?’ And the answer was no.”

“We're at that point now with social media -- and the internet too, but really with social media -- and so we" must "start developing the political willpower to" regulate it.