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Can the Government Get Its Hands on Silicon Valley’s Big Data?

Photo: Jonathan Ross/Getty Images/Blend Images

Over the weekend, numerous consumer-technology companies, many of which were represented during last week’s meeting with President-elect Trump, issued statements against the so-called “Muslim database” that Trump and members of his circle have advocated for.

The companies, in statements to BuzzFeed, said “no” in clear terms. Apple said, “We haven’t been asked and we would oppose such an effort.” Microsoft asserted, “We wouldn’t do any work to build a registry of Muslim Americans.” Facebook, Google, Uber, and IBM offered similar sentiments.

Statements like these are clearly worth having on the record, because tech companies often have a habit of saying one thing and doing another, particularly in the face of government regulation. Yet the debate around the hypothetical registry still can’t avoid the fact that Silicon Valley companies already have the capability of constructing such a database if they wished. These companies sit on vast stores of data from which alarmingly complete pictures can be constructed.

Is there a way, then, for the government to compel these companies to offer assistance or to seize the data on their servers? According to Nate Cardozo, senior staff attorney at the Electronic Frontier Foundation, the answer is not really. “They don’t even need to go to companies like Google or Facebook or Apple,” he said, “and frankly that’s pretty unlikely. They’re gonna go to a company like Palantir.”

Palantir is the big-data analysis company that relies heavily on government-contract work. It is also back by Trump transition team member Peter Thiel, who stands to profit from Palantir’s success. Cardozo also cited companies like Dell, Oracle, and Booz Allen Hamilton (which employed Edward Snowden) as companies that likely possess such data or could build the technical back-end for the government. They’re less trendy but still behemoths when it comes to information technology.

Government work like this is done by enterprise companies that keep a relatively low profile. Likewise, if government-surveillance programs don’t already have much of this data, advertisers do, and they’ll often sell to whomever is willing to pay. CNN reports that while some of the largest data brokers, including Acxiom and Salesforce, have sworn off involvement, many did not comment at all.

Oracle, which owns large data companies such as BlueKai and DataLogix, declined to comment to CNN. Unsurprising, considering Oracle CEO Safra Catz attended last week’s summit and is on the Trump transition team. Likewise, according to documents obtained by the Electronic Privacy Information Center and the Verge, the Thiel-backed Palantir is already linked to a complex monitoring system used by the U.S. Customs and Border Protection Agency which collates data from national, state, and local law-enforcement sources.

Still, could a government attempting to siphon Facebook’s data succeed? The answer again is a strong “no.” According to Cardozo, “that would be blatantly unconstitutional if the government were to demand Facebook give a list of all American Muslims.” Specifically, it would violate the First and Fourth Amendments.

The famous Supreme Court case NAACP vs. Alabama is the precedent here; in this case, the court found in favor of the NAACP after the state subpoenaed the group’s membership lists. (A fun nightmare scenario to imagine: Many of the aging Supreme Court justices die or retire and Trump stacks the deck with cronies with little regard for the Constitution.) Even compelling these tech companies to just construct the technical back-end of such a database would be against the law, because writing code is, legally speaking, an act of speech, and thus protected by the First Amendment.

Still, the downside of Big Data is more apparent than it has ever been. If consumer-tech companies really want to demonstrate that they are putting their users ahead of their bottom line, the EFF says that they should put their money where their mouths are and start deleting unnecessary user data.

The government can’t force anything, but as Cardozo said, “they can certainly pay for it.” At some point, refusing on moral grounds might contradict the fiduciary duties of these publicly traded companies. Whether or not they stick to their word remains to be seen.

Can the Government Get Its Hands on Silicon Valley’s Data?