Timothy B. Lee’s “Google Attacks Highlight the Importance of Surveillance Transparency”

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

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2 Responses

  1. Frank says:

    This is very insightful. I completely agree that “rigorous public and judicial oversight of our domestic surveillance capabilities in the United States” is essential. At the very least, an immutable audit log of surveillance activities needs to be archived (as Zoe Baird of the Markle foundation has recommended).

    On the other hand, such a log itself could be misused once it is disclosed. Not everything is as obviously bad as Cointelpro’s pursuit of MLK. It is often unclear whether surveillance of certain activities discredits the people engaging in them, or the spies. The Maryland fusion center spied on anti-death penalty activists–but as far as I know suffers zero negative consequences for that (while I’m sure anyone who hears that story will think twice about becoming an anti-death-penalty activist.) These are incredibly difficult issues.

    My worry is that search engines essentially become instrumentalities of the state, ala the Birnhack/Elkin-Koren “invisible handshake,” the Hoofnagle “big brother’s little helpers” theory, or the Jon Michaels’ “all the president’s spies” approach. As that integration of state and corporate power continues, corporations need to be subject to the same type of APA/due process/openness rules now constraining the state. Sadly, the opposite appears to be happening–corporations are using expansive notions of trade secrecy to hide their actions from scrutiny, reminiscent of the “state secrets” privilege described here: