Paper Title: Our Desires May Not Be Our Own

-- By SabrinaInoue - 01 Mar 2024

Section I - Introduction

In our current times, the fact that we are being surveilled through our devices all the time actually does not come as much of a surprise. We know about how social media algorithms are specifically designed to keep us scrolling and how they are tailored to show users exactly what they want to see. We know that the advertisements we see are targeted towards us, and it is no shock to see an advertisement for the handbag that we had just been looking at on an online shopping site. Sometimes we joke about how our phones are “listening to us” because we’ll start getting advertisements for things we had just discussed with friends but had never searched for on the Internet. The issue with modern surveillance is not necessarily that people are not aware of it. We know that companies are watching us, that the government is watching us. In fact, some of us have even made arguments for why this might be better for us. Isn’t it better to have a social media feed that specifically interests us? Or to get ads for something we already want? The real issue is not that we do not know we are being watched, but that we believe despite all this, we are still in control. But maybe that is the trap, that we are given the illusion of control when in fact we have given up this control without us knowing.

Section II - Surveillance Capitalism

The concept that our personal data has been commodified and exploited by companies has been dubbed “surveillance capitalism.” Shoshana Zuboff, who popularized the term, explained that “surveillance capitalism begins by unilaterally staking a claim to private human experience as free raw material for translation into behavioral data.” This data is in turn used by companies to make predictions about us through artificial intelligence and machine learning. But these companies have also discovered they can take this a step further, so they are not only predicting what we will do, but also controlling what we do. This is called “economies of action.” Companies who have access to this technology are able to, among other disturbing things, “psychologically target communications”, “trigger social comparison dynamics,” and “levy rewards and punishments.” In other words, we no longer control our devices. They control us, and we have no idea. And, most astoundingly, it seems to be completely legal. Zuboff writes how, even though the Federal Trade Commission had considered the issue of the commodification of data in 1997, “the line was never drawn, and the [tech company] executives got their way.” Currently, there are still no comprehensive federal privacy laws that target private companies.

Section III - Legal Rights

Our country was founded on the notions of freedom, individuality, and autonomy. Inherent in a democracy is the idea that its citizens are able to make their own choices. The Supreme Court has held in several contexts that there is a right to personal autonomy, but almost all decisions are centered around government, not private intrusion. In a First Amendment case, the Court has suggested that freedom of thought is protected in Stanley v. Georgia. Justice Marshall, writing for the majority, stated that the government “cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.” Additionally, the Court established in Katz v. United States that the Fourth Amendment protects “reasonable expectations of privacy.” However, the First and Fourth Amendments have been held to apply only to the government. There may be some possibility of expanding the Fourth Amendment to encompass surveillance capitalism. In Kyllo v. United States, the Court stated that “[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.” In holding that using a new thermal imaging device constituted a warrantless search, the Court implied that the Fourth Amendment must evolve with new technologies. While Kyllo is still within the government intrusion context, the decision suggests that the Court may be open to expansion of Fourth Amendment protections. After all, the Fourth Amendment does not actually mention the government, but rather states that “the right of the people to be secure against their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In the case of surveillance capitalism, private companies are violating our rights to be secure. They do this not only by constantly surveilling us and using our data without our knowledge or consent to predict our desires, but by actively influencing our decisions.

Section IV - Conclusion

While this technology may seem unprecedented, Congress and the courts are familiar with adapting the law to account for changes in technology, and the Court has indicated that the Fourth Amendment should be interpreted to account for these changes. If the government does not find a way to actively combat surveillance capitalism, then every person will be at the mercy of a few powerful companies. The United States is known to be the land of the free. Without more protection from surveillance capitalism, we will instead become the land of the controlled.

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