Information Privacy Law
Professor Ira Rubinstein
April 4, 2017
Title of Blog Post: Turning the Tables: Publishing Congress’s Browser History
Article: Travis M. Andrews, Protesters Raise More than $200,000 to Buy Congress’s Browsing Histories, Wash. Post (Mar. 30, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/03/30/protesters-raise-more-than-200000-to-buy-congresss-web-histories-theyre-likely-in-for-a-surprise.
President Trump is expected to sign into law a bill that overturns Federal Communications Commission rules requiring broadband providers to obtain consent before collecting citizens’ online data such as browser history. This repeal of privacy rules for private companies has profound implications for government surveillance activities and for freedoms of speech and association. As an example, AT&T has already been profiting from selling customer data to law enforcement. Additionally, studies show that government surveillance has a profound chilling effect on online behavior by ordinary citizens.
At least four grassroots campaigns to fund the purchase the browser history of members of Congress and make them public are gaining media attention. This turning of the tables on federal legislators highlights the speech, association, and surveillance concerns of not only privacy advocates but also ordinary citizens. Societal norms already play a role in Fourth Amendment and surveillance jurisprudence, and state legislatures and courts should step in to increase the role of modern expectations in order to protect citizens. Congress’s hypocrisy of allowing companies to sell citizens’ data—which arguably will lead to government use of that data for surveillance outside of the traditional Fourth Amendment protections because of the “third party doctrine”—is being exposed as the social norm of internet searches being private is withdrawn on members of Congress themselves.
Of course, the actions of private persons and private companies do not involve state action and, therefore, do not directly implicate government surveillance and the First Amendment. However, in this era of increasing technological development and privatization of government functions, citizens and courts should be wary of privacy and civil and political rights being seriously endangered. To combat this growing problem, courts should analyze the role of private broadband companies and internet service providers in modern life, digital and online notions of personal privacy, and the extent to which government can access information through third parties in a manner in which the government could not access that same information by targeting an individual directly.
Working backward, the First Amendment embodies the idea that individuals should be free not only to speak about concepts, but also to receive ideas about them. The internet has drastically changed how society learns about information, tests ideas, and spreads ideas. If internet search history is not private, for example, this would create a massive “chilling effect” on what citizens discover and learn about. Taking this one step further, if the information is not only not private but also is available to the government to implicate citizens for crimes, this may drastically chill the spread of ideas and information.
The relationship between government surveillance and the First Amendment is often debated. The argument that the Fourth Amendment protections against unreasonable and warrantless searches and seizures include First Amendment considerations should be viewed with skepticism. Free speech being chilled as the direct result of government surveillance is a legitimate concern that courts should take into consideration. Normal human behavior online and social norms about to what level internet activity is private or anonymous are important factors for a court to take into account when deciding reasonable expectations of privacy and levels of government intrusion into citizens’ private lives.
 See, e.g., Cecilia Kang, Congress Moves to Overturn Obama-Era Online Privacy Rules, N.Y. Times (Mar. 28, 2017), https://www.nytimes.com/2017/03/28/technology/congress-votes-to-overturn-obama-era-online-privacy-rules.html.
 See, e.g., Nicky Woolf, Documents Show AT&T Secretly Sells Customer Data to Law Enforcement, (Oct. 25, 2016 15:33 EST), https://www.theguardian.com/business/2016/oct/25/att-secretly-sells-customer-data-law-enforcement-hemisphere.
 See, e.g., Karen Gullo, Surveillance Chills Speech—As New Studies Show—And Free Association Suffers, Electronic Frontier Foundation (May 19, 2016), https://www.eff.org/deeplinks/2016/05/when-surveillance-chills-speech-new-studies-show-our-rights-free-association.
 Travis M. Andrews, Protesters Raise More than $200,000 to Buy Congress’s Browsing Histories, Wash. Post (Mar. 30, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/03/30/protesters-raise-more-than-200000-to-buy-congresss-web-histories-theyre-likely-in-for-a-surprise.
 See Laird v. Tatum, 408 U.S. 1 (1972) (holding that government surveillance of individuals’ civil rights activities does not implicate the First Amendment).