THE DECIDERS: THE FUTURE OF PRIVACY AND FREE SPEECH IN THE AGE OF FACEBOOK AND GOOGLE

Abstract

I would like to begin with a hypothetical, which in a few years may not be a hypothetical after all. I was at a conference at Google in 2007 and Andrew McLaughlin, then the head of public policy, said he expected that before long, Google will be asked to post online live feeds to all the public and private surveillance cameras in the world. If the feeds were linked and archived, then it would be possible to click on an image of anyone in the world and ubiquitously track their movements forward and backward in time, 24/7, for months or years.

A ubiquitous surveillance system like this is hardly implausible: it is easy to imagine public and governmental demand for it over the next few years, due to a combination of interest in social net- working, voyeurism, and demand from national security agencies that insist that a linked camera system is necessary to protect us against terrorism.

If Google succumbed to the strong public demand and implemented an open-circuit television system, would it violate the Constitution? You might say that surveillance on Google poses no constitutional issues at all. According to the Supreme Court, the Fourth Amendment, which protects us against unreasonable searches and seizures, and the First Amendment, which protects free speech, only regulate the state, and Google is a private corporation.

But maybe the state-action problem is not so simple. If the government used Open Planet to track citizens for national security purposes and the platform integrated both publicly and privately owned camera systems, then according to current doctrine, there might be enough of a hook to create a kind of state action and some sort of Fourth or First Amendment issue.