This article will question what role private and public actors assume in the current structure of data collection and what potential rights are violated. To tease out the relationship between the private and government sectors, this article, for sake of argument, accepts as fact that surveillance is a core government function and that data is a public resource collected by private organizations. While those assumptions may be challenged by different definitions of what constitutes a public function, public resource, or mode of collection, this article does not take on those challenges. It also does not ask the normative question of whether data collection should cease or the descriptive inquiry of whether data collection could even be halted if the public wanted it to be.

Rather, this article simply examines the structure surrounding data collection in terms of privatization, and asks whether certain legal doctrines may be triggered, including the Fourth Amendment. To do so, this article will first set out a definition of a privatization and use the military as an example. In Section II, the article will then engage in a short history of the Internet to show how electronic data collection was a core government function later “privatized” by Silicon Valley corporations. Section III will then explain how this dynamic between private and public oversight raises Fourth Amendment concerns. Finally, the Conclusion will then set out suggestions for the future, including a potential justification for new privacy rights.