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Imagine a state that compels its citizens to inform it at all times of where they are, who they are with, what they are doing, who they are talking to, how they spend their time and money, and even what they are interested in. None of us would want to live there. Human rights groups would condemn the state for denying the most basic elements of human dignity and freedom. Student groups would call for boycotts to show solidarity. We would pity the offending state's citizens for their inability to enjoy the rights and privileges we know to be essential to a liberal democracy.

The reality, of course, is that this is our state-with one minor wrinkle. The United States does not directly compel us to share all of the above intimate information with it. Instead, it relies on private sector companies to collect it all, and then it takes it from them at will. We "consent" to share all of this private information with the companies that connect us to the intensely hyperlinked world in which we now live through our smart phones, tablets, and personal computers. Our cell phones constantly apprise the phone company of where we are, as well as with whom we are talking or texting. When we send emails, we share the addressing information, subject line, and content with the internet service provider. When we search the web or read something online, we reveal our interests to the company that runs the search engine. When we purchase anything with a credit card, we pass on that information to the credit card company. In short, we share virtually everything about our lives--much of it intensely personal-with some private company. It is recorded in an easily collected, stored, and analyzed digital form. We do so "consensually," at least in theory, because we could choose to live without using the forms of communication that dominate modem existence. But to do so would require cutting oneself off from most of the world as well. That is a high price for privacy.

Publication Citation

44 Cap. U. L. Rev. 677 (2016)