The Public and the Private at the United States Border with Cyberspace

Abstract

In the twenty-first century, a state can come to know more about each of its citizens via surveillance than ever before in human history. Some states are beginning to exercise this ability. Much of this additional surveillance ability derives from enhanced access to digital information. This digital information comes in the form of bits of data that flow through both rivers and oceans of data. These rivers are full of information that passes by a given point, or series of points, in a network and can be intercepted; these oceans are also stocked with information that can be searched after the fact. These data are held in private hands as well as public. The most effective (or invasive, depending upon your vantage point) new forms of surveillance often involve a search of data held in a combination of private and public hands. Both private and public entities are increasingly encouraged to retain more data as a result of legal and market pressures. There are essentially no Fourth Amendment protections for U.S. citizens whose data is collected by a private third-party and turned over to the state. Nor are there such constitutional protections for the re-use of privately collected data by state actors. The few statutory provisions that protect citizens in these contexts are out-of-date and riddled with loop-holes. This inquiry prompts hard questions about the need to redefine the public and the private in a digital age. The meaning of the public and the private is changing, in material ways, both from the perspective of the observer and the observed. We need to rethink legal protections for citizens from state surveillance in a digital age as a result of this third-party data problem.