In today's New York Times' "Sunday Review,"Jeffrey Rosen shines light into a gap in the Bill of Rights on issues of privacy.
Taking a cue from recent court decisions citing James Madison on the issue, he points out that the author of the Federalist Papers had a blind spot when it came to assessing threats to liberty. He was far more concerned about government abuses than anything private actors could do.
Considering that, in those days, the printing press hadn't changed very much in the three centuries since Gutenberg invented it, that's not too surprising. But today's situation is different in kind not just quality.
"Now that Google and AT&T can track us more closely than any N.S.A. agent," Rosen writes, "it appears that the Madisonian Constitution may be inadequate to defend our privacy and dignity in the 21st century." Indeed, based on my own experience at AT&T in the very earliest days of the Internet, he's right.
Back then, the company hadn't yet anticipated the Internet's full impact on itself, not to mention society. But the executives responsible for gaining a beachhead on the shores of the world wide web immediately understood the value of all the customer information that would be flowing through our servers, e.g., what web sites they visited, what seaches they conducted, what products they bought, etc.
However they had a problem -- the privacy policies the company had developed for the telephone business put all of that data off limits for any purpose other than billing and service. Under a strict reading, it couldn't be used to target advertising to customers. And under any reading, it couldn't be sold to other companies.
A committee of senior executives was convened to address the issue. I recommended that we maintain the same strict privacy standards unless customers to "opt in" to their use for other purposes.
It wasn't a popular position and the company eventually decided customers would have to "opt out" if they wanted to limit the use of the data we accumulated about their Internet usage.
The AT&T I worked for has since been absorbed by another company that assumed its name and, I fear, Madison's blind spot.