No government can be trusted with our data
You may not care that your data is being accessed now,” Rep. Dan Crenshaw (R-Tex.) told teenagers at last month’s congressional hearing on TikTok, “but [there] will be one day when you do care about it.”
Crenshaw might as well have been howling into a hurricane. The TikTok-addicted don’t care what the Chinese Communist Party (CCP) has in its information vaults. They cannot imagine circumstances where that information will matter.
The danger doesn’t come just from TikTok, or from China. The volume of attempted data thefts is staggering: One study five years ago found “the Defense Department thwarts 36 million emails full of malware, viruses and phishing schemes from hackers, terrorists and foreign adversaries trying to gain unauthorized access to military systems” — every day.
At lunch last week, a wise litigator who knows a great deal about data collection casually announced he was turning off his phone to have a candid conversation about a sensitive case. It reminded me of the practices of then-CIA Director Mike Pompeo when we got together, or of national security adviser Robert C. O’Brien when he would come by for a meal. Phones off and in drawers. Not perfect protection. But some. “If you take a phone to China,” a member of one of the congressional committees on intelligence told me, “throw it away when you get back.”
The surveillance state is at its scariest in the form of the CCP. A lot of the party’s data collection is for mundane uses, such as selling products and powering advances in artificial intelligence.
But much of it is for sinister purposes. Compiling a map of any individual’s data life — where they have been, what they have watched, with whom they have kept company — allows the CCP to manipulate.
Ask any citizen of the People’s Republic of China what their “social credit score” means and how it is calculated. You will perhaps be shocked to find that Orwell’s Big Brother speaks perfect Mandarin.
What about the U.S. government agencies — federal, state and local — that collect your data? Are they handling it in a secure fashion?
In a 2021 Supreme Court decision, six justices struck down California’s demand that charities registered in the state disclose “Schedule B” of their annual IRS filings, which includes the names and addresses of all donors of more than $5,000 in a year. Chief Justice John G. Roberts Jr. wrote that “the challenged requirement must be narrowly tailored to the interest it promotes.” That “interest,” in turn, must be a “sufficiently important” one.
California’s attorney general argued that the information being provided “is confidential,” but the majority responded: “We are unpersuaded.”
In a footnote, Roberts went further: “The State’s assurances of confidentiality are not worth much.” Even the dissenters admitted that donors “face a reasonable probability of threats, harassments, and reprisals if their affiliations are made public.”
Justices Samuel A. Alito Jr. and Neil M. Gorsuch seem close to declaring outright that the court’s most stringent standard for review, “strict scrutiny,” ought to apply to all disclosures of data. Bravo to them. When the authorities seek our data, let them get a warrant. We all throw off enormous clouds of data every day. TikTok does a thorough job of collecting that data and slicing and dicing it.
It is long past time to crack down. Individuals deserve more protection than those unreadable “consent” forms known as “terms and conditions” supply. In her 2019 book “The Age of Surveillance Capitalism,” Shoshana Zuboff surprised me with the statement that 5 percent of all apps secure the user’s consent via “terms and conditions” to turn on devices and activate audio and video recording without the user’s knowledge. This is legal once you have “consented.”
Malware and spyware are one thing, but here we are talking about freely chosen apps that listen and track, collect and store data. About you. And your family. And your children.
“With data, there’s power,” Crenshaw declared. “The CCP can choose what you see and how you see it. This is China’s goal — the demise of America, starting with our youth.” He added: “That’s why lawmakers on both sides of the aisle have joined together. Our national security and safety depend on it.”
Crenshaw is right. Minors seem not to have a good grip on what privacy is, or why it is to be cherished. But they might want their privacy someday, so the government’s job is to protect them now. Alito and Gorsuch, too, are on the right track: Governments at all levels need to stop watching us. Foreign governments need to be barred from doing so.
And for those U.S. companies growing rich on trading in personal data given without informed consent — the day is coming when Americans will realize what you’re up to. The payback is going to be enormous.