The Age of Surveillance Capitalism

by Shoshana Zuboff

  41. Frank A. Pasquale, “Privacy, Antitrust, and Power,” George Mason Law Review 20, no. 4 (2013): 1009–24.

  42. There is wide-ranging scholarship on the internet companies’ claims to First Amendment protections as a defense against regulation. Here are a few among many important contributions: Andrew Tutt, “The New Speech,” Hastings Constitutional Law Quarterly, 41 (July 17, 2013): 235; Richard Hasen, “Cheap Speech and What It Has Done (to American Democracy),” First Amendment Law Review 16 (January 1, 2017), http://scholarship.law.uci.edu/faculty_scholarship/660; Dawn Nunziato, “With Great Power Comes Great Responsibility: Proposed Principles of Digital Due Process for ICT Companies” (GWU Law School Public Law research paper, George Washington University, January 1, 2013), http://scholarship.law.gwu.edu/faculty_publications/1293; Tim Wu, “Machine Speech,” University of Pennsylvania Law Review 161, no. 6 (2013): 1495; Dawn Nunziato, “Forget About It? Harmonizing European and American Protections for Privacy, Free Speech, and Due Process” (GWU Law School Public Law research paper, George Washington University, January 1, 2015), http://scholarship.law.gwu.edu/faculty_publications/1295; Marvin Ammori, “The ‘New’ New York Times: Free Speech Lawyering in the Age of Google and Twitter,” Harvard Law Review 127 (June 20, 2014): 2259–95; Jon Hanson and Ronald Chen, “The Illusion of Law: The Legitimating Schemas of Modern Policy and Corporate Law,” Legitimating Schemas of Modern Policy and Corporate Law 103, no. 1 (2004): 1–149.

  43. Steven J. Heyman, “The Third Annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy: The Conservative-Libertarian Turn in First Amendment Jurisprudence” (SSRN Scholarly Paper, Rochester, NY: Social Science Research Network, October 8, 2014), 300, https://papers.ssrn.com/abstract=2497190.

  44. Heyman, “The Third Annual C. Edwin Baker Lecture,” 277; Andrew Tutt, “The New Speech.”

  45. Daniel J. H. Greenwood, “Neofederalism: The Surprising Foundations of Corporate Constitutional Rights,” University of Illinois Law Review 163 (2017): 166, 221.

  46. Frank A. Pasquale, “The Automated Public Sphere” (Legal Studies research paper, University of Maryland, November 10, 2017).

  47. Ammori, “The ‘New’ New York Times,” 2259–60.

  48. Adam Winkler, We the Corporations (New York: W. W. Norton, 2018), xxi.

  49. “Section 230 of the Communications Decency Act,” Electronic Frontier Foundation, n.d., https://www.eff.org/issues/cda230.

  50. Christopher Zara, “The Most Important Law in Tech Has a Problem,” Wired, January 3, 2017.

  51. David S. Ardia, “Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act” (SSRN Scholarly Paper, Rochester, NY: Social Science Research Network, June 16, 2010), https://papers.ssrn.com/abstract=1625820.

  52. Paul Ehrlich, “Communications Decency Act 230,” Berkeley Technology Law Journal 17 (2002): 404.

  53. Ardia, “Free Speech Savior or Shield for Scoundrels.”

  54. See Zara, “The Most Important Law in Tech.”

  55. Zara.

  56. David Lyon, Surveillance After September 11, Themes for the 21st Century (Malden, MA: Polity, 2003), 7; Jennifer Evans, “Hijacking Civil Liberties: The USA Patriot Act of 2001,” Loyola University Chicago Law Journal 33, no. 4 (2002): 933; Paul T. Jaeger, John Carlo Bertot, and Charles R. McClure, “The Impact of the USA Patriot Act on Collection and Analysis of Personal Information Under the Foreign Intelligence Surveillance Act,” Government Information Quarterly 20, no. 3 (2003): 295–314, https://doi.org/10.1016/S0740-624X(03)00057-1.

  57. The first wave of consumer-oriented privacy legislation in the US dates from the 1970s, with important landmark bills in the US Congress such as the Fair Credit Reporting Act in 1970 and the Fair Information Practices Principles in 1973. The OECD adopted a strong set of privacy guidelines in 1980, and the EU’s first Data Protection Directive took effect in 1998. See Peter Swire, “The Second Wave of Global Privacy Protection: Symposium Introduction,” Ohio State Law Journal 74, no. 6 (2013): 842–43; Peter P. Swire, “Privacy and Information Sharing in the War on Terrorism,” Villanova Law Review 51, no. 4 (2006): 951; Ibrahim Altaweel, Nathaniel Good, and Chris Jay Hoofnagle, “Web Privacy Census,” Technology Science, December 15, 2015, https://techscience.org/a/2015121502.

  58. Swire, “Privacy and Information Sharing,” 951; Swire, “The Second Wave”; Hoofnagle, Federal Trade Commission; Brody Mullins, Rolfe Winkler, and Brent Kendall, “FTC Staff Wanted to Sue Google,” Wall Street Journal, March 20, 2015; Daniel J. Solove and Woodrow Hartzog, “The FTC and the New Common Law of Privacy,” Columbia Law Review 114, no. 3 (2014): 583–676; Brian Fung, “The FTC Was Built 100 Years Ago to Fight Monopolists. Now, It’s Washington’s Most Powerful Technology Cop,” Washington Post, September 25, 2014, https://www.washingtonpost.com/blogs/the-switch/wp/2014/09/25/the-ftc-was-built-100-years-ago-to-fight-monopolists-now-its-washingtons-most-powerful-technology-cop; Stephen Labaton, “The Regulatory Signals Shift; F.T.C. Serves as Case Study of Differences Under Bush,” New York Times, June 12, 2001, http://www.nytimes.com/2001/06/12/business/the-regulatory-signals-shift-ftc-serves-as-case-study-of-differences-under-bush.html; Tanzina Vega and Edward Wyatt, “U.S. Agency Seeks Tougher Consumer Privacy Rules,” New York Times, March 26, 2012, http://www.nytimes.com/2012/03/27/business/ftc-seeks-privacy-legislation.html.

  59. Robert Pitofsky et al., “Privacy Online: Fair Information Practices in the Electronic Marketplace: A Federal Trade Commission Report to Congress,” Federal Trade Commission, May 1, 2000, 35, https://www.ftc.gov/reports/privacy-online-fair-information-practices-electronic-marketplace-federal-trade-commission.

  60. Pitofsky et al., “Privacy Online,” 36–37. The proposed legislation would set forth a basic level of privacy protection for all visits to consumer-oriented commercial websites to the extent not already provided by the Children’s Online Privacy Protection Act (COPPA). Such legislation would set out the basic standards of practice governing the collection of information online and provide an implementing agency with the authority to promulgate more-detailed standards pursuant to the Administrative Procedure Act, including authority to enforce those standards. All consumer-oriented commercial websites that collect personal identifying information from or about consumers online, to the extent not covered by the COPPA, would be required to comply with the four widely accepted fair information practices:

  (1) Notice. Websites would be required to provide consumers clear and conspicuous notice of their information practices, including what information they collect, how they collect it (e.g., directly or through nonobvious means such as cookies), how they use it, how they provide Choice, Access, and Security to consumers, whether they disclose the information collected to other entities, and whether other entities are collecting information through the site.

  (2) Choice. Websites would be required to offer consumers choices as to how their personal identifying information is used beyond the use for which the information was provided (e.g., to consummate a transaction). Such choice would encompass both internal secondary uses (such as marketing back to consumers) and external secondary uses (such as disclosing data to other entities).

  (3) Access. Websites would be required to offer consumers reasonable access to the information a website has collected about them, including a reasonable opportunity to review the information and to correct inaccuracies or delete information.

  (4) Security. Websites would be required to take reasonable steps to protect the security of the information they collect from consumers.

  61. Swire, “The Second Wave,” 845.

  62. Paul M. Schwartz, “Systematic Government Access to Private-Sector Data in Germany,” International Data Privacy Law 2, no. 4 (2012): 289, 296; Ian Brown, “Government Access to Private-Sector Data in the United Kingdom,” International Data Privacy Law 2, no. 4 (2012): 230, 235; W. Gregory Voss, “After Google Spain and Charlie Hebdo: The Continuing Evolution of European Unio
n Data Privacy Law in a Time of Change,” Business Lawyer 71, no. 1 (2015): 281; Mark Scott, “Europe, Shaken by Paris Attacks, Weighs Security with Privacy Rights,” New York Times—Bits Blog, September 18, 2015; Frank A. Pasquale, “Privacy, Antitrust, and Power,” George Mason Law Review 20, no. 4 (2013): 1009–24; Alissa J. Rubin, “Lawmakers in France Move to Vastly Expand Surveillance,” New York Times, May 5, 2015, http://www.nytimes.com/2015/05/06/world/europe/french-legislators-approve-sweeping-intelligence-bill.html; Georgina Prodham and Michael Nienaber, “Merkel Urges Germans to Put Aside Fear of Big Data,” Reuters, June 9, 2015, https://www.reuters.com/article/us-germany-technology-merkel/merkel-urges-germans-to-put-aside-fear-of-big-data-idUSKBN0OP2EM 20150609.

  63. Richard A. Clarke et al., The NSA Report: Liberty and Security in a Changing World (Princeton, NJ: Princeton University Press, 2014), 27, 29; Declan McCullagh, “How 9/11 Attacks Reshaped U.S. Privacy Debate,” CNET, September 9, 2011, http://www.cnet.com/news/how-911-attacks-reshaped-u-s-privacy-debate. The NSA Report, compiled by the president’s review panel in 2013, describes the intelligence mandate that made this possible: “The September 11 attacks were a vivid demonstration of the need for detailed information about the activities of potential terrorists… some information, which could have been useful, was not collected and other information, which could have helped to prevent the attacks, was not shared among departments.… One thing seemed clear: If the government was overly cautious in its efforts to detect and prevent terrorist attacks, the consequences for the nation could be disastrous.”

  64. Hoofnagle, Federal Trade Commission, 158.

  65. See Andrea Peterson, “Former NSA and CIA Director Says Terrorists Love Using Gmail,” Washington Post, September 15, 2013, https://www.washingtonpost.com/news/the-switch/wp/2013/09/15/former-nsa-and-cia-director-says-terrorists-love-using-gmail.

  66. Marc Rotenberg, “Security and Liberty: Protecting Privacy, Preventing Terrorism,” testimony before the National Commission on Terrorist Attacks upon the United States, 2003.

  67. Swire, “The Second Wave,” 846.

  68. Hoofnagle, Federal Trade Commission, Chapter 6.

  69. Lyon, Surveillance After September 11, 15.

  70. Richard Herbert Howe, “Max Weber’s Elective Affinities: Sociology Within the Bounds of Pure Reason,” American Journal of Sociology 84, no. 2 (1978): 366–85.

  71. See Joe Feuerherd, “‘Total Information Awareness’ Imperils Civil Rights, Critics Say,” National Catholic Reporter, November 29, 2002, http://natcath.org/NCR_Online/archives2/2002d/112902/112902d.htm.

  72. See Matt Marshall, “Spying on Startups,” Mercury News, November 17, 2002.

  73. Marshall, “Spying on Startups.”

  74. Mark Williams Pontin, “The Total Information Awareness Project Lives On,” MIT Technology Review, April 26, 2006, https://www.technologyreview.com/s/405707/the-total-information-awareness-project-lives-on.

  75. John Markoff, “Taking Spying to Higher Level, Agencies Look for More Ways to Mine Data,” New York Times, February 25, 2006, http://www.nytimes.com/2006/02/25/technology/25data.html.

  76. Inside Google, “Lost in the Cloud: Google and the US Government,” Consumer Watchdog, January 2011, insidegoogle.com/wp-content/uploads/2011/01/GOOGGovfinal012411.pdf.

  77. Nafeez Ahmed, “How the CIA Made Google,” Medium (blog), January 22, 2015, https://medium.com/insurge-intelligence/how-the-cia-made-google-e836451a959e.

  78. Verne Kopytoff, “Google Has Lots to Do with Intelligence,” SFGate, March 30, 2008, http://www.sfgate.com/business/article/Google-has-lots-to-do-with-intelligence-3221500.php.

  79. Noah Shachtman, “Exclusive: Google, CIA Invest in ‘Future’ of Web Monitoring,” Wired, July 28, 2010, http://www.wired.com/2010/07/exclusive-google-cia.

  80. Ryan Gallagher, “The Surveillance Engine: How the NSA Built Its Own Secret Google,” Intercept (blog), August 25, 2014, https://firstlook.org/theintercept/2014/08/25/icreach-nsa-cia-secret-google-crisscross-proton.

  81. Robyn Winder and Charlie Speight, “Untangling the Web: An Introduction to Internet Research,” National Security Agency Center for Digital Content, March 2013, http://www.governmentattic.org/8docs/UntanglingTheWeb-NSA_2007.pdf.

  82. Richard O’Neill, Seminar on Intelligence, Command, and Control (Cambridge, MA: Highlands Forums Press, 2001), http://www.pirp.harvard.edu/pubs_pdf/o’neill/o’neill-i01-3.pdf; Richard P. O’Neill, “The Highlands Forum Process,” interview by Oettinger, April 5, 2001.

  83. Mary Anne Franks, “Democratic Surveillance” (SSRN Scholarly Paper, Rochester, NY: Social Science Research Network, November 2, 2016), https://papers.ssrn.com/abstract=2863343.

  84. Ahmed, “How the CIA Made Google.”

  85. Stephanie A. DeVos, “The Google-NSA Alliance: Developing Cybersecurity Policy at Internet Speed,” Fordham Intellectual Property, Media and Entertainment Law Journal 21, no. 1 (2011): 173–227.

  86. The elective affinities that linked government operations to Google and the wider commercial surveillance project are evident in the decade that followed 9/11 as the NSA strived to become more like Google, analyzing and integrating Google’s capabilities in a variety of domains. For detailed insight, see “Lost in the Cloud: Google and the US Government,” Inside Google, January 2011, insidegoogle.com/wp-content/uploads/2011/01/GOOGGovfinal012411.pdf; Ahmed, “How the CIA Made Google”; Verne Kopytoff, “Google Has Lots to Do with Intelligence,” SFGate, March 30, 2008, http://www.sfgate.com/business/article/Google-has-lots-to-do-with-intelligence-3221500.php; “Google Acquires Keyhole Corp—News Announcements,” Google Press, October 27, 2004, http://googlepress.blogspot.com/2004/10/google-acquires-keyhole-corp.html; Josh G. Lerner et al., “In-Q-Tel: Case 804-146,” Harvard Business School Publishing, February 2004, 1–20; Winder and Speight, “Untangling the Web”; Gallagher, “The Surveillance Engine”; Ellen Nakashima, “Google to Enlist NSA to Help It Ward Off Cyberattacks,” Washington Post, February 4, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/02/03/AR20100 20304057.html; Mike Scarcella, “DOJ Asks Court to Keep Secret Any Partnership Between Google, NSA,” BLT: Blog of Legal Times, March 9, 2012, 202, http://legaltimes.typepad.com/blt/2012/03/doj-asks-court-to-keep-secret-any-partnership-between-google-nsa.html; Shane Harris, @WAR: The Rise of the Military-Internet Complex (Boston: Houghton Mifflin Harcourt, 2014), 175.

  87. Jack Balkin, “The Constitution in the National Surveillance State,” Minnesota Law Review 93, no. 1 (2008), http://digitalcommons.law.yale.edu/fss_papers/225.

  88. Jon D. Michaels, “All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror,” California Law Review 96, no. 4 (2008): 901–66.

  89. Michaels, “All the President’s Spies,” 908; Chris Hoofnagle, “Big Brother’s Little Helpers: How ChoicePoint and Other Commercial Data Brokers Collect and Package Your Data for Law Enforcement,” North Carolina Journal of International Law and Commercial Regulation 29 (January 1, 2003): 595; Junichi P. Semitsu, “From Facebook to Mug Shot: How the Dearth of Social Networking Privacy Rights Revolutionized Online Government Surveillance,” Pace Law Review 31, no. 1 (2011).

  90. Mike McConnell, “Mike McConnell on How to Win the Cyber-War We’re Losing,” Washington Post, February 28, 2010, http://www.washingtonpost.com/wp-dyn/content/story/2010/02/25/ST2010022502680.html.

  91. Davey Alba, “Pentagon Taps Eric Schmidt to Make Itself More Google-ish,” Wired, March 2, 2016, https://www.wired.com/2016/03/ex-google-ceo-eric-schmidt-head-pentagon-innovation-board; Lee Fang, “The CIA Is Investing in Firms That Mine Your Tweets and Instagram Photos,” Intercept, April 14, 2016, https://theintercept.com/2016/04/14/in-undisclosed-cia-investments-social-media-mining-looms-large.

  92. Fred H. Cate and James X. Dempsey, eds., Bulk Collection: Systematic Government Access to Private-Sector Data (New York: Oxford University Press, 2017), xxv–xxvi.

  93. Michael Alan Bernstein, The Great Depression: Delayed Recovery and Economic Change in America, 19
29–1939, Studies in Economic History and Policy (Cambridge, MA: Cambridge University Press, 1987), chapters 1, 8.

  94. http://bits.blogs.nytimes.com/2008/11/07/how-obamas-internet-campaign-changed-politics/?_r=0.

  95. Sasha Issenberg, “The Romney Campaign’s Data Strategy,” Slate, July 17, 2012, http://www.slate.com/articles/news_and_politics/victory_lab/2012/07/the_romney_campaign_s_data_strategy_they_re_outsourcing_.single.html. See also Joe Lertola and Bryan Christie Design, “A Short History of the Next Campaign,” Politico, February 27, 2014, http://www.politico.com/magazine/story/2014/02/a-short-history-of-the-next-campaign-103672.html.

  96. Daniel Kreiss and Philip N. Howard, “New Challenges to Political Privacy: Lessons from the First U.S. Presidential Race in the Web 2.0 Era,” International Journal of Communication 4 (2010): 1032–50.

  97. Sasha Issenberg, The Victory Lab: The Secret Science of Winning Campaigns (New York: Crown, 2012), 271.

  98. “I’m doing this personally,” Schmidt told journalists. “Google is officially neutral” in the campaign. His first appearance with Obama was at an event in Florida where they moderated a panel on the economy. Schmidt told the Wall Street Journal that his planned endorsement of Obama was a “natural evolution” of his role as an informal advisor. See Monica Langley and Jessica E. Vascellaro, “Google CEO Backs Obama,” Wall Street Journal, October 20, 2008, http://www.wsj.com/articles/SB122446734650049199; and Jeff Zeleny and Elisabeth Bumiller, “Candidates Face Off Over Economic Plans,” New York Times, October 21, 2008, http://www.nytimes.com/2008/10/22/us/politics/22campaign.html.

  99. Robert Reich, “Obama’s Transition Economic Advisory Board: The Full List,” US News & World Report, November 7, 2008, http://www.usnews.com/news/campaign-2008/articles/2008/11/07/obamas-transition-economic-advisory-board-the-full-listn.

  100. Eamon Javers, “Obama–Google Connection Scares Competitors,” Politico, November 10, 2008, http://www.politico.com/news/stories/1108/15487.html.

  101. “Diary of a Love Affair: Obama and Google (Obama@Google),” Fortune, November 14, 2007, http://archive.fortune.com/galleries/2009/fortune/0910/gallery.obama_google.fortune/2.html.