Jim Harper

Headline Writers’ Lacking Literary Knowledge

Twice in two days now, I’ve come across news articles using the term “Big Brother” to refer to private sector information practices that affect privacy. Big Brother is not an appropriate shorthand here. In his book 1984, George Orwell gave the name “Big Brother” to the oppressive government that observed and controlled the lives of the book’s protagonists. The unique oppressive powers of this governmental entity were a central motif of the book.

Yesterday’s Washington Post had an article headlined “FTC Wants to Know What Big Brother Knows About You.” Is the Federal Trade Commision examining warrantless wiretapping, one hopes? Alas, no - they’re looking at “behavioral targeting” on the Web. This is when advertisers collect information about Web surfers with cookies, using it to direct more relevant ads their way.

Consumers who care to can “opt out” of nearly all “behavioral targeting” by setting their browsers not to receive third-party cookies. In both Internet Explorer and Firefox, the “Tools” pull down has a selection called “Options.” Clicking the “Privacy” tab allows users to set blanket bans on cookies or site-specific preferences.

Behavioral targeting is in no way an exercise of the legal monopoly on coercion, much less an oppressive exercise of that power.

Ars Technica, an otherwise excellent tech publication, mangled the same literary reference in this headline: “Big Brother is Watching: Companies Snoop E-mail to Combat Leaks.” Employers monitoring communications on their systems are neither exercising government power nor oppressing their employees.

The most cogent, if not the kindest, explanation of this came in the comments to a recent blog post by Bruce Shneier (one I disagreed with). There, commenter “ManOnBlog” said:

You check your constitutional rights at the door when you go to work. They can tap your phone, read your email, paw through your computer, open your locker, etc. The list of what they can’t do legally is shorter than what they can do.

Commenter “@ ManOnBlog” replied:

> You check your constitutional rights at the door when you go to work.

No, you don’t.

> They can tap your phone

No, they can’t. They can tap *their* phone, which you use.

> Read your email

No, they can’t. They can read *their* email, which you use in the course of your job (although generally speaking they need to be VERY CAREFUL about this, because although your corporate mail store is indeed company property they have obligations to protect the individual information that is in that mail store if it is your personal info).

> paw through your computer

No, they can’t. They can paw through *their* computer. Again, see the email line above.

> open your locker

Ditto.

The distinction between government and private action is something more people should understand - especially people who write headlines for a living.

May 23, 2008 | Comments |

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    Nice post, Jim. I'll often see "free speech rights" mangled as well, as if the First Amendment applies to private actors whereas it's just a check (albeit a powerful one) on state action. But by equating state and private action, my fear is that people are somehow downgrading their distrust of government in addition to elevating private behavior to that of a Constitutional concern. This is tragic because it results in almost uncorrectable intrusions on civil liberties while at the same time we see overreaching business regulation - the worst of both worlds.
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    Jim,

    This distinction is not as clear-cut as you imply. Under the warrantless wiretap/national security letter model, private companies act as an arm of the government (from a privacy standpoint). It is not a stretch of the imagination to conclude that Google acts as an agent of "Big Brother."
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    I agree that this is a problem, and a serious one, but neither of these stories related at all to companies acting as an arm of the government. The problem is best addressed by keeping the distinction between government and private actors very clear-cut.
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    Good post. One term typically abused by the media is the word "fascism" to project a derogatory "image" without regard to its actual political context.

    While the term "Bid Bothers" is reserved for an oppressive government looking out for your "best interests", I swear that Microsoft must send their staff to Orwell's University of Newspeak. I wonder what the diploma looks like!
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    I know it's a typo, but I rather like "Bid Brother" for employers' snooping on the activities of their employees.

    And I'd say that, yes, indeed, you do check your constitutional rights when you go to work. All your "no, they tap their phone" sophistry is all well and good, but it's your privacy they're invading. "You check your consitutional rights when you enter the workplace" is a pretty good shorthand for what's happening --- and a good guide for people to set their expectations, as well. Yes, yes, the Constitution is a contract between the government and the people, and as such doesn't apply much to the employment contract, but the impact on privacy is pretty much the same.
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    You're right that the privacy interests are the same, but people don't have constitutional rights as against employers or any other private party. If my neighbor tapes my mouth shut to keep me from speaking, it is not a violation of my First Amendment rights. If the government does, it is.
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    It's worth noting that the FTC itself has the unrestricted ability to demand businesses and individuals turn over their business records without the need for a warrant or even probable cause. The FTC's "compulsory process" can be invoked for almost any antitrust or "consumer protection" reason. The FTC routinely abuses this power to overwhelm businesses into pleading guilty to fabricated antitrust violations.
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    "People don't have constitutional rights restraining employers..." is correct. However, people do have rights restraining the activities of others, even employers, which they do end up implicitly surrendering. Referring to these as "Constitutional rights" isn't so very misleading (there's considerable overlap, after all), and reminding people that they (usually implicitly) surrender them is not such a bad thing.
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    dm - No, it's misleading. Here in the U.S., there is a specific document called "the Constitution." The rights granted by it are constitutional rights. There are other laws. The rights granted by them are called a lot of things, but they are not called "constitional rights."

    Perhaps you're trying to wedge an information privacy right into the constitutional 'right to privacy' from the Griswold/Roe/Casey line of cases. If so, you should know that they deal more with autonomy than privacy, the scope of protection they grant is unclear, and - much though I love privacy - they do not rest on solid constitutional footings. Oh yeah - and they definitely don't apply to employers!
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    The use of George Orwell's 1984 as a metaphor for the loss of freedom and the destruction of humanity at the hands of Big Business is right on target. I have done it here at TLF many times, and am disappointed a little that my posts weren't mentioned in your examples.

    Recall that George Orwell himself was a socialist, not a libertarian.

    The public is very right to be afraid of Big business, as the greatest threat to humanity since the Nazis.

    Two exhibits: the War in Iraq, and Global Warming. Especially relevant here is the active suppression of the truth about Global Warming by organizations funded by ExxonMobil. But their day will come.

    The TLF is very selective in their reading of many economists, here is an Adam Smith quote for you to choke on:

    The proposal of any new law or regulation of commerce which comes from this order ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it.

    http://enigmafoundry.wordpress.com/2006/11/18/t...
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    It’s worth noting that the FTC itself has the unrestricted ability to demand businesses and individuals turn over their business records without the need for a warrant or even probable cause. The FTC’s “compulsory process” can be invoked for almost any antitrust or “consumer protection” reason. The FTC routinely abuses this power to overwhelm businesses into pleading guilty to fabricated antitrust violations.,/i>

    Is this just gushing anti-government libertarian venom, or do you actually have any FACTS to back up this absurd claim?
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    > They can tap your phone
    No, they can’t. They can tap *their* phone, which you use.

    No, business DO tap phones of private individuals, some of whom are NOT even employees. I guess you have buried your head in the sand so you haven't heard some of the news:

    "On Tuesday, the California attorney general's office contacted CNet to inform the company that two of the individuals whose phone records had been accessed were its own reporters, which network operator AT&T later confirmed.
    HP has said that information on up to nine journalists, including a Wall Street Journal reporter, had been accessed."

    Source: http://www.pcpro.co.uk/news/93427

    Next: California legislators move to make such an investigation by a corporation, using false information to trick disclosure of private information illegal.

    Who then opposes it? The MPAA, a group of corporations.

    MPAA Kills Anti-Pretexting Bill
    by Ryan Singel
    A tough California bill that would have prohibited companies and individuals from using deceptive “pretexting” ruses to steal private information about consumers was killed after determined lobbying by the motion picture industry, Wired News has learned…
    The bill won approval in three committees and sailed through the state Senate with a 30-0 vote. Then, according to Lenny Goldberg, a lobbyist for the Privacy Rights Clearinghouse, the measure encountered unexpected, last-minute resistance from the Motion Picture Association of America.
    “The MPAA has a tremendous amount of clout and they told legislators, ‘We need to pose as someone other than who we are to stop illegal downloading,’” Goldberg said.
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    And here is a link to article with further links:

    http://enigmafoundry.wordpress.com/2006/12/01/p...
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