NBC’s Bob Sullivan published a very nice Wednesday on an Equifax company called The Work Number, which collects detailed information about the paychecks of 30 percent of the U.S. workforce and then uses it for various purposes, including selling it to debt collectors and financial services firms wanting to do “risk management” of their customers.
Essentially, The Work Number operates like a kind of collective, with employers providing data to the company in exchange for the ability to use its database to more easily verify the past employment of job applicants. From Sullivan’s reporting, the company seems to have conveyed the impression, at least, among most involved parties that they only share salary data with the subject’s knowledge and permission—but it’s not actually following that policy.
Clearly there’s a huge informed consent angle to this story. Companies should not be exposing such personal information about their employees without both informing them and getting their consent.
But I think there’s another angle as well. That is the fact that corporations and government agencies are trying to use electronic communications for the same purposes that political activists and other individuals have done: to connect together, organize, compare notes, share experiences, and create collective knowledge.
Anti-fracking activists, for example, might compare notes about water tests, and what company officials are telling them at different meetings across the country. Photographer’s rights activists can share information about police misbehavior towards photographers. And citizens can even do things such as use an app to share information about the location of police DUI checkpoints, a controversial but exercise of free speech.
Such distributed-knowledge capabilities have been much celebrated when it comes to helping individuals to organize politically, but here we have an example of how they are having the opposite effect—shifting power away from individuals and towards institutions in a very real way. This Equifax salary data collective is similar to other consumer-data collectives, in which (as I discussed here) companies share their customer information with aggregators in return for the opportunity to pull out rich, cross-merchant profiles of those same customers. Or how landlords share data with each other through .
An example of this in the government context is illuminated by the travel rights activist Edward Hasbrouck, who obtained his Automated Targeting System (ATS) records from the Customs and Border Protection agency via a . As Hasbrouck details in , the documents he received show that the government is not only keeping extensive, detailed travel data on all his international travel since 1992, but that the ATS system also allows border guards to write free-text notations in our permanent government travel record. In his own records, Hasbrouck found notations such as:
- PAX [i.e. passenger] VERBALLY DECLARED FOOD. 1. APPLE WAS SEIZED. BREAD WAS INSPECTED AND RELEASED. NO CIVIL PENALTY ISSUED
- PAX ATTENDED COMPUTER CONFERENCE IN BERLIN AND THEN TRAVELED AROUND EUROPE AND ASIA TO VISIT FRIENDS…. PAX IS SELF EMPLOYED “ENTREPRENEUR” IN COMPUTER SOFTWARE BUSINESS.
- PAX HAS MANY SMALL FLASHLIGHTS WITH POT LEAVES ON THEM. HE HAD A BOOK ENTITLED DRUGS AND YOUR RIGHTS
In short, Hasbrouck found this database contained records not only of an American’s precise travels, friends’ phone numbers, car license plates, timestamped IP addresses, hotel reservations, and much else—but also details of things he said to agents about his travel and about his life, and even details on the books he was reading and other First Amendment-protected content such as the designs on his flashlights.
The creation of these kinds of systems, whether in the government or commercial context, has enormous implications. Once upon a time, we might approach a government agent who has a frightening amount of power over us, such as a border guard, with trepidation. But if you had a bad encounter at the border, at least it was a one-shot deal. Now, your encounters can be permanently recorded and become available to all subsequent agents and can keep coming back to haunt you.
This greatly increases their power, and reduces yours. For example, suppose an agent is rude or abusive toward you. How do you respond—as a proud, free citizen who refuses to submit to unjustified treatment, or as a cowering subject, afraid to attract the wrath of some petty martinet? Given the fact that rising to your own defense might prompt some notation in your permanent file and produce ongoing bad repercussions, a person today is more likely to shut up and just take the abuse. That’s a shift in power from you to them.
Basically, these kinds of systems are improving the “intelligence” of the organizations that create them, and in several ways.
- They’re allowing organizations to carry out distributed observations of your behavior across space and time, recording your actions with many different agents in many different times and places, pulling together your disparate activities into one coherent record.
- They’re allowing organizations to create a memory of your activities. I’ve written before about the concept of “enterprise amnesia” in the context of customer service; what these systems do is eradicate such amnesia.
- They allow not only particular bureaucracies to monitor and remember your activities at a new level, they can also allow such intelligence to reach across organizations. That is what we are seeing with this Equifax product, which essentially plugs companies in to each other and gives them a distributed memory of employees’ histories. That can be especially frightening as it raises the prospect of individuals being blacklisted across entire areas or industries, and removes competition, diversity, and localism as remedies for those who have been mistreated.
The bottom line is that we’re not only seeing the end of enterprise amnesia, we’re facing the prospect of enterprise omniscience.
By making it easy to connect and share information, the information revolution is making new forms of activism and resistance possible—but it’s also shifting power in the other direction too. These contrasting dynamics will be one of the great ongoing power struggles we’re going to see as technology continues to rewire our civilization. Stories such as Equifax’s employee surveillance collective are a reminder that privacy protection is all about one big question: who’s going to have power.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.