Page 92 - Privacy in a Cyber Age Policy and Practice

THE PRIVACY MERCHANTS 79

privacy is violated in a manner about as consequential as if the same
violations had been carried out by a government agency.

B. Privacy Merchants in the Service of Big Brother

Even if one disregards the facts already cited, which show that corporate
violations of privacy are far-reaching and chilling, one must note that the
information corporations amass is available to the government. Laws may
prevent the government from ordering a private company to conduct sur-
veillance on innocent citizens who are not suspected of any crime or from
generating dossiers that the government itself is banned from generating.
(In other words, when corporations act as government agents, they may be
subject to the same or similar limitations the government must abide by.)
However, the government can and does use data already amassed by the
privacy merchants. Also, prevailing laws do not prevent private corpora-
tions from analyzing online activity with an eye toward the government’s
needs and shaping their privacy-violating data in ways to make it more
attractive to government agencies that purchase their services. Indeed,
because the government is such a large and reliable client, corporate data
banks have strong financial incentives for anticipating its needs.
The thesis that “what is private does not stay private” is far from hypo-
thetical. As Chris Hoofnagle notes, even though Congress limited the
executive branch’s amassing of personal information in the 1974 Privacy
Act, “those protections have failed to meet Congress’ intent because the
private sector has done what the government has been prohibited from
doing.” 29
According to Daniel Solove, “for quite some time, the government has
been increasingly contracting with businesses to acquire databases of per-
sonal information. Database firms are willing to supply the information and
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the government is willing to pay for it.” Solove points out that government
can “find out details about people’s race, income, opinions, political beliefs,
health, lifestyle, and purchasing habits from the database companies that
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keep extensive personal information on millions of Americans.” Hoofna-
gle similarly warns that “private sector commercial data brokers have built
massive data centers with personal information custom-tailored to law
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enforcement agents.” ChoicePoint, a major Privacy Merchant, has at least
thirty-five contracts with government agencies, including the Department
of Justice (through which it provides its databases to the FBI), as well as the
DEA, the IRS, and the Bureau of Citizenship and Immigration Services. 33
Even before the 9/11 attacks, the U.S. Marshals Service alone performed
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up to forty thousand searches each month using private data banks. The
exact number of contracts the government has made with corporate data