It is a crucial question: Is there a difference between surveillance by the police using government cameras and surveillance by fellow citizens on Google using the Google and Facebook platforms?

After all, the Fourth Amendment to the Constitution binds the government; it doesn’t bind Google. And if Mark Zuckerberg or the good people at Google decided to use their own servers to link up surveillance cameras, it might be argued that that’s not a Constitutional issue at all. Citizens are free to spy on each other using private technology without implicating the Constitution.

Now, it becomes more complicated when the government tries to use the system to conduct its own searches. And more complicated still when there’s a mix of public and private cameras. And, the Court would have to decide whether or not there is “state action” and so forth.

But, the difficulty of answering the question points to a theme that united many of the chapters of the book, which is the difficulty of thinking through Constitutional rights and liberties in an age when the great Internet Service Providers have more power over speech and privacy than the government does and yet they are not formally restricted by the U.S. Constitution.

Because they are.

No one can deny the fact that if you want to who determines who can speak and who can be heard today, it’s not the US Supreme Court—Justice Scalia or Justice Alito. It’s the lawyers at Google. In particular, Google for a long time has had a particular lawyer—until not too long ago her name was Nicole Wong—and her colleagues actually called her “The Decider” because she was the one who was empowered to decide what stays up and what comes down, not only on Google.com but on each of the more than 140 search engines that Google does business with around the world—Google France and Google Germany—and also on YouTube, which Google owns.

So, Nicole Wong is the person who is woken up in the middle of the night when the Turkish government is complaining because Greek football fans are posting YouTube videos accusing Kemal Ataturk, the founder of modern Turkey, of being gay, which Greek football fans love to do to get a rise out of their opponents.

It’s illegal in Turkey to insult Ataturk. And, Nicole Wong, who has pledged to take down material that is clearly illegal under local laws, has to make a spot judgment at four in the morning: Is the material clearly illegal? It is protected political speech? Is it on the edge, in which case maybe she’ll leave it up? She doesn’t speak Turkish. This is only one of one hundred controversies bubbling up around the world.

The sheer scope of the responsibility helps to dramatize just how much power the Internet Service Providers have.

Has technology enhanced the role of private corporations in Free Speech and Privacy?

There is no question that corporations have had an important role in who can speak and who can be heard throughout American history. And, in fact, Tim Wu begins his chapter by imagining a situation in which Google decides to favor one Presidential candidate over another in a close race and uses its power over the Internet to insure his victory. And then, Tim Wu notes, this isn’t just a fantasy. In fact, in the Nineteenth Century, in the contested election of 1876, the Hayes-Tilden election, AT&T did allegedly use its power over the telegraphs to favor one candidate over another. So, no question that the risk that corporations can pose to Speech and Liberty, so memorably recognized by my hero, Justice Louis Brandeis, in his denunciation of the risks that bankers take with other people’s money and the “curse of bigness” that allowed concentrated corporate power to suppress liberty, this has existed throughout American history.

However, it’s also the case that today, now that so much more of our public life takes place on-line—obviously than it did before but now with most, much of our public life takes place on-line—we’re in a different situation than we were during World War One, when the quintessential example of speech suppression was the street corner speaker standing up in Hyde Park or on the Boston Common and denouncing World War One and then the government, under the Espionage Act, threatening the speaker, as it did Eugene V. Debs, the Socialist candidate for Vice President, who was imprisoned for his speech in a public meeting. Now, the Eugene V. Debs who’s making anti-war criticism is going to do it on-line, in blogs or on Facebook and that means...or on Twitter, certainly. And therefore, the question whether or not to let him speak in the first place or to try to censor him after he’s spoken will be made in the first instance by the Internet Service Providers not by the government and that technological shift has vastly increased their power over Speech and Privacy.

What is the difference between your appeal to the courts and Tim Wu’s appeal to government regulation to address private corporations affecting a Constitutional value?

I don’t think that Tim Wu and I disagree fundamentally that in some situations judicial resolution is appropriate and in some cases regulation is appropriate and in still others political activism is necessary. We just focused on different challenges.

So, I think that the courts are important as a back-stop. And, had they not stepped in in the Jones case to say that there’s some expectation of privacy against ubiquitous, long-term surveillance, then we would have had far less privacy today than the Framers took for granted. But, I don’t at all believe the Supreme Court is going to have the last word in these great Privacy debates, precisely because Google and Facebook have more power than the government about who can speak.

I agree with Tim Wu, that administrative regulations are going to be just as important as Constitutional doctrine, in particular anti-trust law. Are Google and Facebook having uncompetitive advantages by the scope of their control over Speech?

Or, to take a European example from just this week, should there be a legislative ‘Right to Be Forgotten’ on the Internet? That’s what the European data privacy commissioner, Viviane Reding, proposed just this week.

It’s extremely unclear what the scope of this right is. In it’s narrowest form, it seems to allow citizens to require people who hold data about them to delete that data when its no longer necessary. But, it becomes more controversial when it appears to give people the right to request the removal of pictures and items about themselves that have been widely shared. At that point, there’s an obvious clash with Free Speech.

So, to take one example, there was an Argentinian Pop star, Virginia da Cunha, who’d posed for racy pictures of herself. And then she grew up and she thought the better of it. And she asked Google and Yahoo to take the pictures down, even though they had been widely distributed.

They refused. They said they’re not, they don’t make content-based decisions and the pictures were out there too widely.

She persisted. She sued. An Argentinian court ruled with her, holding that her Dignitary Rights, embodied in a kind of Right to Be Forgotten, had been violated, ordered Google and Yahoo to take down the pictures. And, after being fined a lot of money, Yahoo said, ‘It’s too hard for us just to remove the dirty pictures, the racy pictures; we’re going to remove all references to this woman from the Yahoo search engine.’

So, this just shows how dramatically this Right to Be Forgotten allows you to delete your past selectively on the Internet.

American law would not strike that balance between Privacy and Free Speech. We generally hold that people cannot be restricted from sharing or publicizing truthful but embarrassing information about people. That’s what the Court has held repeatedly. So, I think we’re about to have a dramatic clash between Europe and America when it comes to the appropriate scope of regulation.

But that just shows that this is not a debate that comes from the Supreme Court or the European Constitutional courts. It comes from the European Union. Congress may reach a different balance. It is a legislative debate.

And then, finally, there’s a question of whether political activism is more important than legislation or judicial decisions in some areas. And here, I like very much the example of the triumph over the body scanners. It’s such an optimistic, happy story for Privacy advocates.

But this is the story of the Naked Machine versus the Blob Machine. Originally—2004—the Bush Administration was offered a choice between two designs of body scanners. One design revealed contraband and plastics under clothing but also showed graphic images of the naked body; another also revealed the place the contraband was located but scrambled the naked body into a modest and non-descript blob and basically just told the screeners where to look under clothing in secondary screening.

From a security point of view, this is a ‘no-brainer,’ as they say. The same amount of security: One grossly invades privacy; the other protects it.

However, the Bush Administration, the Homeland Security Department chose the Naked Machine over the Blob Machine. Their privacy officers didn’t require the less intrusive technology; they ignored evidence that neither machine was all that effective in detecting low-density chemical ETN powder, such as used by the Christmas Trouser Bomber. But, they reached a different conclusion than European airport authorities, most of whom rejected both machines but the handful of whom, the handful of European airports that chose these technologies insisted on the Blob over the Naked Machine.

So, why is this a happy story?

Because there was a political protest. It began with the clarion cry of the hero of naked body scanner movement, the guy who memorably exclaimed, “Don’t touch my junk!” That led other citizens to refuse to go through the machines, or to be patted down. And finally embarrassed by this citizen uprising, the Obama Administration instructed the Homeland Security Department to go back to the drawing board. And they were ‘Shocked. Shocked!’ to discover that in fact they could choose the very Blob Machine technology that they had refused to choose years earlier.

So, that reminds me—or, that illustrates for me the idea that we can’t rely on courts alone to protect Privacy nor on legislators. In the end, especially in some circumstances, citizens have to rise up and demand their own Privacy. And it is only by galvanized political activism can a good balance can be struck.

Might private corporations be more interested than government to protect our Privacy?

I am reluctant to generalize too much about the virtues of corporations versus the government. Each has its own interests that threaten and can protect Liberty in different ways.

So, there are certainly some areas where some corporations have an incentive to support transparency and open network rules. Network Neutrality is a good example of that. It’s certainly in the interests of Google and Facebook and the great ISPs to insure that particular applications can’t discriminate against their competitors and degrade or block any item or data. So, that’s why Google supported Net Neutrality.

But, it’s not—Net Neutrality is not in everyone’s interest. Comcast, the phone company, wanted to be able to block BitTorrent, which had a potential to compete with its own file-sharing service, and also to charge more money to particular applications that consume more bandwidth.

So, similarly in the debate over Internet piracy. I was struck by some of the techno-meliorism, the kind of powerful-versus-the-people rhetoric that seemed to pit the greedy old media companies in Hollywood who were trying to argue for enhanced copyright protection against the tribunes of the people at Google and Facebook who felt that information should be free.

It’s not that simple a story. In fact, although SOPA [Stop Online Piracy Act] itself was a very bad idea, and the structure of the Internet should not be changed in order to go after what’s ultimately a handful of really serious copyright-violating sites located abroad, who are better dealt with through a law enforcement approach such as we used against child pornography, nevertheless that’s not to say that Google wins and journalism and perhaps independent artists and filmmakers and musicians may lose when the business model that allow media companies to fund and to promote quality work evaporates.

So, yet again, you’ll find that some companies have more of an incentive for transparency and free information but that may not serve the public interest in all circumstances. Certainly, companies don’t have the same incentives that government does to keep information secret in the interests of National Security. Their interests are financial and proprietary. They want to protect their trade secrets.

But, we should never forget for a moment that Google and Facebook, as wonderful as they are and as much as we depend on them, are in the advertising business. Their business is to learn as much about us as possible so that they can sell, bombard us with ads that will track and follow us as precisely as possible across the entire range of platforms in which we interact. And the values of an advertising company are not the values of James Madison. They have different financial incentives. They need to be constrained in different ways. So, I’m not someone who believes that Liberty will flourish and secrecy will wither on the vine now that we have to be more concerned about the power of Google than the power of government.

—End of Part Two—

For more GWorks Interviews: Jeffrey Rosen,

please visit Part Three: Reasonable Tech-spectations

EDITOR’S NOTES

GOVERNINGWorks conducted this interview on Wednesday 2 February 2012 at George Washington University Law School, District of Columbia. GWorks produced and edited this video and its transcript.

GWorks would like to thank Professor Jeffrey Rosen for his generous participation in GWorks Interviews and Professor Rosen and The Brookings Institution for providing a Reviewer Copy of Constitution 3.0: Freedom & Technological Change for this interview.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues.