Being not a lawyer, and thus knowing nothing about 1st amendment (or any other) jurisprudence, I'm going to sidestep that question entirely.

But I am intrigued by the question of whether governments can/should/would regulate companies like Google, or whether, as Andrei seems to suggest, they are two sides of the same powerful coin and naturally prone to work together to take and manage more of our data.

On the first or second day of class, Eben made a crack about being most concerned about the union of the federal government and Citigroup (though he’s plenty scared about each one by itself). I’m really ONLY scared by their union:

Historically, governments have been the chief limitation on private sector abuses from antitrust law to trade and labor treaties. Even when government directives are toothless (as in the case of many human rights conventions), it’s to these state measures that citizen activists wind up appealing.

Similarly, companies have been loud advocates for limited government whether to reduce their own tax liabilities or to secure opportunities for future profit. Example: Big Pharma lobbyists, even when they pay lip service to Partnership for a Drug Free America, often support medical marijuana because it’s just one more thing they can make and sell.

Andrei is right that states or corporations only ever act in their own interest, and their interest is usually to control more territory, more money or more data. But there was a time when states and corporations each perceived that it was their interest to seek control at the expense of the other. It seems to me the smart route the privacy-concerned-community could take would be try to get us back to that dialectic, to frame the privacy argument in terms of the open, but well-regulated, market economy.

Another example: by fits and starts, we are actually making steps towards addressing climate change in precisely this way. The enviro movement has been smart to speak out of both sides of its mouth to government and business. Greenpeace, et al pressure companies to get green before the government comes to run their businesses, while pressuring legislators or international treaty organizations to prove their strength by cracking down on corporations. In effect, the enviro activists promote their agenda by riling government and business against one another along parallel tracks.

What are the possibilities for pushing information protection in a similar manner? Prod companies with the logic that they don’t want to be doing the FBI’s dirty work; prod government with the logic that they don’t want to be bought. This is admittedly just a partially baked idea, but that's what Wikis are supposed to iron out.

-- MahaAtal - 18 Feb 2009