Internet Giants as Quasi-Governmental Actors and the Limits of Contractual Consent

ABSTRACT Although the government's data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden's revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put and the entities--including the federal government--with whom their information would be shared. We also call into question the distinction between governmental actors and private actors in this realm, as the Internet giants increasingly exploit contractual mechanisms to operate with quasi-governmental powers in their relations with consumers. As regulators and policymakers focus on how to better protect consumer data, we propose that solutions that rely upon consumer permission adopt a more exacting and limited concept of the consent required before private entities may collect or make use of consumer's information where such uses touch upon privacy interests. TABLE OF CONTENTS INTRODUCTION I. CONSUMERS, CONSENT, AND DATA MINING A. What We Talk About When We Talk About Consent B. Do Consumers Really Want Data Mining? C. Does Data Mining Hurt Consumers? II. PRIVATE DATA MINING AS AN EXERCISE OF QUASI-GOVERNMENTAL POWER A. Privatization of Laws, Rules, and Regulations B. Rights Deletion with a Click 1. Limiting Remedies and the Role of the Judiciary Through Boilerplate 2. Deleting Rights Through Opaque Bargains and Monopoly Power C. Governmental Power Without Accountability 1. Speech Restrictions and the Private Regulatory Nature of the Internet a. How Section 230 of the CDA Diminishes Users' Ability to Control Speech b. Speech Restrictions and Non-Disparagement Clauses 2. Deprivation of Personal Property Without Due Process 3. Email Scanning and Other Unreasonable Searches and Seizures D. The Best of Both Worlds: Corporations as Quasi-Governmental Agencies and as Empowered Citizens III. DOWNGRADING "CONSENT" CONCLUSION INTRODUCTION In 2013, Edward Snowden, a contractor working for the National Security Agency ("NSA"), shared with journalists from the Manchester Guardian information revealing that the NSA was engaged in a massive data-mining operation that enabled the NSA to eavesdrop on the telephonic and electronic communications of U.S. citizens and residents. (1) On June 5, 2013, Guardian reporter Glenn Greenwald published the first (2) of a long series of articles (and now also a book) (3) in which he revealed that the NSA was collecting the phone records of millions of Verizon customers daily. (4) That same day, Greenwald reported on the NSA's PRISM program, through which it gained access to data collected by technology companies including Google, Facebook, Apple, Microsoft, YouTube, and other U.S. Internet service and telephone communications providers. (5) According to the Guardian, the PRISM program went beyond mere data mining. It gave the NSA direct access to these companies' systems, so that it could access "email, video and voice chat, videos, photos, voice-over-IP--Skype, for example--chats, file transfers, social networking details, and more." (6) The media were quick to respond. Edward Snowden became a household name, and debates rage over whether he is a hero or a traitor. (7) Condemnation of the NSA's PRISM program was nearly universal. (8) But while a wave of outrage was directed at the government agency, the private companies that provided the government with their customers' information largely escaped criticism or condemnation. …