12/27/2007 04:49 am ET Updated May 25, 2011

Facebook & The National Surveillance State

Facebook is under mounting public pressure over how the company manages and monetizes the personal information of its 58 million users. Fights over how people "control" their online identities are especially important now, since the growth of social networking coincides with a resurgence of government surveillance, including a massive N.S.A. domestic spying program that is widely believed to be illegal. So several readers have responded to my Facebook article by raising the important connection to government surveillance. Commenter Reece argues that Facebook qualms are dwarfed by the real Big Brother in Washington:

...neither Facebook nor Visa can toss me in jail. Neither Facebook nor Visa can prosecute me for anything. Neither Facebook nor Visa can accuse me of being a terrorist or keep me in a secret detention center or subject me to torture. I have no doubt that we need more regulation of personal information in the hands of private businesses, and I would like to see that legislation. But I'm always going to be more concerned about the government than I am about Facebook.

A satirical riposte from Wonkette turned on a similar premise:

...being overly concerned about what I'm buying from Amazon being broadcast over the interwebs or having my picture used to sell Coca-Cola seems to fall a bit lower on the privacy-importance hierarchy than, say, the right to know what charges are being brought against me ('cause there have got to be some, right?) or, i don't know, why I'm being searched randomly on the subway for having a backpack...

But what if you were "being searched randomly" based on a government profile drawn from your putatively private information online? Sure, companies cannot "toss" people in jail, but they can provide information to the government to enable lawful searches, arrests and charges. So I think JeffC is right to emphasize:

...the government works hand-in-hand with online companies and credit card companies to track you. How much longer before places like Facebook install monitoring software based on logarithms that flag "suspicious" activity which activates more intense surveillance?

It is not an abstract hypothetical. The Bush administration runs massive domestic surveillance of our telephone calls, conducted with extensive assistance by private companies. It has also pressed search engines like Google and Yahoo to provide broad data on users' search habits to investigate trends in potential domestic crime - not inquires targeting individual users. And as I wrote, Facebook has already been tapped by authorities ranging from campus police to the Secret Service. So even leaving aside any clandestine surveillance that has not been reported in the media, the public record shows that social networking websites are ripe for government surveillance.

I think the fact that the government can deputize websites for national security surveillance and criminal investigations is one more reason to demand that social networking sites ensure that users understand how their information can be used -- and the limits on any notion of privacy "controls" online. Facebook runs a business that provides a tool for people to share information, and in exchange for that service the company claims ownership of the users' information, including photos, writings and activities. That's why the company argued it had every right to take users' photos and actions and morph them into advertisements in the Beacon debacle. Contrary to many users' assumptions, their information was not traditionally "private," even if they used "privacy settings" to limit access to it. Citizen groups like MoveOn and the Center for Digital Democracy are leading fights to force more privacy rules on web companies precisely because the current norms are so weak.

Yet even if industry practices improve, through user pressure or regulation, social networking sites will remain an attractive source for government surveillance and data-mining. Obviously, the lawful collection of intelligence can advance public safety, and like most Americans, I want the FBI and the NSA to do their jobs. But the Bush administration has demonstrated an extremist resistance to the most basic surveillance rules required by the Constitution and federal law, and since 9/11, neither opposition party leaders nor the public has shown intense outrage over the widely reported abuse of surveillance. For an example of how complicit both parties have been in the administration's surveillance of American citizens, consider that the Democratic Congress is poised to go further than the Republican Congress ever did in whitewashing past spying, by granting retroactive immunity to telcos next month. So it looks like we are headed for what Yale Law Professor Jack Balkin calls the "national surveillance state," where terrorism, the digital revolution and the evolution of warfare combine to fundamentally shift public norms and government constraints on surveillance. Balkin contends that these structural pressures are overwhelming, reducing political debates to how the Execeutive Branch leverages constant, massive surveillance of the citizenry, not if:

Whichever party is in power will work toward the creation of such a state, the only difference is how they will negotiate the risks to civil liberties and the concentration of power in the Executive.

Yes, it's much bigger than your Facebook profile. But it could also start with your profile, which might list a criminal suspect among your 700 "friends," or place you at the scene of a crime. Balkin theorizes that a digitally empowered surveillance state begins by building a supercharged parallel surveillance system "that routes around the traditional criminal justice system, and which is not subject to the oversight and restrictions of the criminal justice system." (Sound familiar?) But soon, the Executive is "increasingly tempted to make use of that parallel system" for everything from domestic misdemeanors to undemocratic abuses. (The NSA applies the pressure, but private companies hold much of the information.) Eventually, this parallel surveillance and law enforcement system might even replace our original Constitutional protections. And if that happens, get ready to hear about how most people's personal information and activities were already posted online anyway.

Ari Melber is writing about Facebook and online privacy at TPMCafe this week, where this post responding to readers first appeared.