Please look for the forthcoming book, “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy,” to be published in 2018 by Cambridge University Press. 

 

A quick preview:

            It is known that each click of a mouse leaves a digital trail that can be pieced together with other bits of data to create a detailed picture of an individual’s likes, dislikes, habits, acquaintances, purchase history, and medical profile. People are accustomed to blindly striking the “agree to these terms” button before accessing a new website or making an online purchase. Individual citizens know that such contracts of adhesion are an unavoidable precondition to participating in the global digital community. Either they do not care, or they assume that if there is ever a problem, the government and the law will protect them.  

            What is less widely known is the extent to which government services—including surveillance—have become increasingly enmeshed with the private sector and its gargantuan storehouses of data in order to function. Past abuses of government contractors like Blackwater and Halliburton, although highly publicized, have become relics of history. For most Americans, the practice of outsourcing government functions has very little effect on daily life. Only recently have policymakers and the media begun tuning into the troubling relationship between government and private-sector, big data analytics. Private sector companies such as Google and Verizon have been quietly providing the government with privately-sourced data for use in surveillance and other law enforcement functions for years. The paradigm of heavy-handed government spying on private citizens has shifted; the private sector now has “the goods,” so to speak, that government needs to perform its national security, law enforcement and other functions. 

            The problem with this shift is that the Constitution mostly does not apply to the private sector. Thus, when government insources privately-sourced data for law enforcement or surveillance, just as when it outsources government functions to private contractors, the Constitution cannot play its role in ensuring political accountability and the protection of individual liberties. When the government performs those functions itself, by contrast, the Constitution applies. This constitutional blind spot—whereby identical functions are performed by non-government actors extra-constitutionally at the government’s behest—is a big one, as it threatens the very viability of the Constitution in the modern digital age.