CHAPTER 8: COMPARISONS – PRIVATE SECTOR ACTIVITY
this information to “enable remote exploitation”. It was also said that NSA
gathered location data from apps to track devices.58 These examples have led
to the claim that “government surveillance piggybacks on corporate
capabilities.”59
8.103. This all emphasises the need for independent supervision of the use of bulk datasets,
as has taken place for several years (though such supervision has only recently been
avowed).60
Relevance of private sector activity
8.104. The conduct of private companies cannot excuse the state from protecting the rights
of its citizens, however excessive that conduct may seem to some. As an industry
voice reminded me: “The state can arrest you or lock you up ... the worst Google can
do is show you an ad”.61 Safeguards on the exercise of intrusive powers are, for that
reason, more important where the state is concerned. Private companies have not
been slow to seek constraints on the authority of states to exercise their powers.62
8.105. But in relation to capabilities, a different logic applies. Companies aim to make profits
(and may do so by enhancing the convenience of their customers). The state exists
for the more fundamental purpose of protecting its citizens from threats to their lives
and security. Its need for intrusive powers could thus be characterised as more
pressing. Furthermore, in the UK at least, substantially more people express concern
about the monitoring of their online activity by social media websites and search
engines than about the activities of either the US or the UK Government: 2.27(a)
above.
8.106. Thus:
(a) It may legitimately be asked, if activity of a particular kind is widespread in the
private sector, why it should not also be permitted (subject to proper supervision)
to public authorities.
(b) The extent to which we think it normal to share personal information with private
sector providers will in any event tend to condition the terms in which we think
about what it is acceptable to allow the state to do on our behalf.
58
59
60
61
62
“NSA uses Google Cookies to pinpoint targets for hacking”, The Washington Post, 10 December 2013.
The issue of whether it is fair to conflate private companies’ activities with government surveillance is
discussed in the article. One contributor noted “There’s increasingly a sense that giving consumers
control over the information they share with companies is all the more important because you’re giving
them control over the information they share with government.”
Data and Goliath, 2015, chapter 6.
7.69 and 8.26-8.29 above; Recommendations 81(b) and 91(d) below.
The requirement of consent for private sector intrusion is another distinguishing factor, though its
practical value may be doubted: 8.84-8.96 above.
The campaign for Global Government Surveillance Reform, supported by a number of large private
companies including Google and Facebook, promotes as its first principle: “Limit governments’
authority to collect users’ information.”
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