The problem, says Silverglate, "is that the pace of technological change is proceeding so quickly that the courts, which were always a little bit behind in the development of technology, are now being left in the dust."
Indeed, says Tien, "technology has advanced and the law has not." Moreover, "Privacy is not easy to define. It means different things to different people." But above all else, he says, the most acute threat nowadays is that both the government and the private sector have such vested interests in chipping away at whatever privacy actually is.
"You and I might view the information that we give off online, that we don't want others to capture, as a negative thing like pollution in the air," says Tien. But "for government and industry, it's a nutrient. It's something they can feed on. They want to know more about us."
No such agency
"A hidden world, growing beyond control," wrote Dana Priest and William Arkin in their Washington Post special report, "Top Secret America" — describing "some 1271 government organizations and 1931 private companies [working] on programs related to counterterrorism, homeland security, and intelligence in about 10,000 locations across the United States. An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, DC, hold top-secret security clearances."
If you don't think a goodly number of those folks are listening in to the occasional Skype conversation, you haven't been paying attention these past nine months.
"I'm worried about a number of phenomena," says Silverglate. "First, because of the increasing number of searches being done by the terror warriors — the CIA, the NSA, the FBI, and God knows who else — the chaos in the federal investigative establishment is unbelievable. If you think they can't get the mail delivered on time, just think about the wiretaps and the electronic surveillance."
It's enough to make the most intrusive data-mining operation seem tame by comparison. After all, says Silverglate, a corporation "can spy on you but they can't arrest you." And when they do spy on you, it's "because they want to sell you something, not kill you."
Don't (just) worry about the government
The problem comes when governments start strong-arming those companies into doing their bidding. Consider the controversy surrounding AT&T's cooperation with the NSA (National Security Agency), without the knowledge of its customers, on a "massive program of illegal dragnet surveillance of domestic communications" (as the Electronic Frontier Foundation charged) back in 2006. "AT&T just allowed them access to the control room," marvels Silverglate.
The feds, in other words, "enlist the brilliance and expertise of companies like Google for the purposes of snooping on its citizens."
It's a job at which Google has allegedly acquitted itself quite well in recent months.
In May, news broke that the omnipresent (and sometimes seemingly omnipotent) corporation had been vacuuming up data about citizens' Wi-Fi networks and what sorts of content was being accessed thereon. Like in a B-movie stakeout, it was all monitored from inside a van — those camera-equipped Street View trucks that patrol the world's cul-de-sacs and capture images of sword-and-sorcery LARPers, "horse boy," and, well, your front door.