In this interview, host Jason Hartman and legal scholar Amy Peikoff examine how modern surveillance and censorship stem from the U.S. legal framework known as the third‑party doctrine. Peikoff explains that when individuals share data with banks, retailers, social media, or telecom providers, they lose a reasonable expectation of privacy, allowing the government to obtain that data without a warrant. She links this doctrine to the bulk‑surveillance programs revealed by Edward Snowden, which remain legally permissible because the government can claim a need for the information. The only notable limitation is the narrow Carpenter v. United States ruling, which requires a warrant for 127 days of continuous cell‑site location data. Peikoff argues for a common‑law reform that would restore warrant requirements for third‑party data used for limited purposes. Hartman expands the discussion, contending that private tech companies—through massive financial resources and lobbying—act as extensions of the state, enabling constitutional violations without direct government action. He characterizes this relationship as a form of "corporate fascism" and calls out the lack of antitrust enforcement against giants like Google and Facebook. Together, they frame the erosion of First and Fourth Amendment rights as a product of legal doctrine, governmental secrecy, and corporate‑government collusion.
Chapters
We want to dive into this topic of censorship, but also surveillance. And these are different things. So let's maybe start with surveillance a little bit because a lot of people really aren't aware of how they're being surveilled both legally and illegally. Why don't we talk? Start there and tell us what you know.
So I always look at this topic from the fact that in our lives today, as we go about our daily lives, we are constantly sharing information with what is known as third parties in the law. So you're sharing information with your bank, you share information with Starbucks, if you buy with your little Starbucks card, you share information with social media networks, email service providers, cell service providers, et cetera, et cetera. Right in our law since the 1970s. And it has been the case that whenever you share information with third parties, you no longer have what is known as a reasonable expectation of privacy in that information. And that is due to something called the third party doctrine. Right from third parties. What is the consequence of you not having this reasonable expectation? The consequence is that if the government obtains, is not considered a search within the meaning of the Fourth Amendment, which means that the government can obtain it without a warrant, no probable cause, no particularized suspicion. So if we go back a little bit over 10 years ago and we think about the bulk surveillance programs that Snowden revealed, and you know, he went to great risk, you know, personal risk, and he wound up in Russia and you know, made quite a sacrifice to do this right to reveal this to the world. All of those programs are putatively legal. You know, they're considered legal. Why? Because of this thing called the third party doctrine. The government says it has, you know, it has enough of a need and then it can get this information without a warrant, even in bulk and et cetera. And so that doctrine, which, you know, by the time Snowden had made his revelations, I had already identified that there was a problem with it. I had a common law based solution for it. I ended up writing that up and publishing it. Thanks to Snowden's revelations, that doctrine is still in full force today, with a little bit of a caveat, which is you might remember there was a case called Carpenter in 2018. And in the Carpenter vs United States case, what it was at issue was 127 days worth of cell site location data. So the telephone companies, your cell company keeps records of where you are in relation to cell tower locations. Right? That's cell site location data. And what the court held in Carpenter was that, and this is a Very narrow holding. Right. And this is what the court does a lot. It's kind of maddening, a narrow holding saying that if there is 127 days worth of consecutive cell site location data, then the government needs to get a warrant to get that. That's the little carve out that we have of the third party doctrine so far. But otherwise, in my view, even though maybe they've passed a little bit of legislation here or there in all those 10 years since Snowden revealed those programs. Right. They have done nothing of real substance to address those problems. And I think, you know, when you and I think about, oh yeah, I share some information with Starbucks for the purpose of getting the discount or the free coffee after 10 or 20 or whatever, or I share information with Facebook in order to take advantage of their services. It's not as if I think, oh, I'm sharing this information and I no longer have any reasonable expectation of any privacy in that forever. At least it shouldn't be that way. Right. And what I want to do is propose a solution whereby the court will again recognize that when you share something with a third party for a limited purpose, it doesn't mean that the government should be able to obtain it without a warrant. The government should have to get a warrant before it can get that information, even from a third party.
Absolutely. So this is what I've been saying for easily 12 years on this show, and that is that the government is restricted, thankfully, by our wonderful Constitution. Okay? And the government can't violate your first Amendment rights. It can't violate your fourth Amendment rights. Right. You know, the government has all these restrictions, and that's a beautiful thing. But third party companies that are private businesses, especially when you accept a TOS A terms of service, they don't have these restrictions. So the government makes an end run around the Constitution by just getting in bed with these third party companies. And you know, of course, the third party companies are so overfunded, and the way capital formation happens in this country and in the world is just pathetic. That's really what needs to be revised, okay? Because these tech companies have too much money, they have too much leverage, and so they hire armies of lobbyists to go and trade favors with the government. And why do we think that Google and Facebook haven't been busted up under antitrust laws, which they should have been a long time ago?
Because that's used as a stick. Right?
It's the leverage point. It's the lever that they're both trading with each other. The government is saying look, we're going to ignore this so the DOJ won't attack them and they're going to return the favor by sharing information and restricting speech and so forth. And it is a big bad problem. Look at throughout history, everybody rails against fascism, right? They hate Mussolini. And this is what we have now. We have a new version of corporate fascism. Because these big companies are just proxies for the government. They are extensions of the government. They're so big where the revenue of a company, a private company, well, publicly traded company, but it's a company, it's not a government. When it becomes the size of the GDP of country number 70 in the world out of, you know, 195 countries or so, that's not a company anymore. That, that's, that's a government. Okay? So you know, when we say, look, we're in favor of business, we want to be business friendly and have free trade and so forth, this is not free trade. This is the opposite of free trade. This is cronyism, fascism. It is super, super scary the way these companies are being used as extensions of government to violate our constitutional rights.
