Government Data Mining: The Need for a Legal Framework

TLDR

Abstract

The United States government has long sought data about individuals for a wide variety of important public purposes. The process of collecting this information was often time-consuming and expensive and resulted in data that were difficult to use because of the form in which they were captured. The Supreme Court described the effect as “practical obscurity.”1 Much of the “privacy” Americans have enjoyed results from the fact that it was simply too expensive or laborious to find out intimate data about them. In the twenty-first century, technology and law have combined to erode the protection for personal privacy previously afforded by practical obscurity. Advances in digital technologies have greatly expanded the volume of personal data created as individuals engage in everyday activities. “Today, our biographies are etched in the ones and zeros we leave behind in daily digital transactions,”2 Professor Kathleen Sullivan has written. Moreover, technology has contributed to an explosion not only in the ubiquity of data, but also in the range of parties with physical access to those data and in the practical and economic ability of those parties to collect, store, share, and use those digital footprints. At the same time, the Supreme Court has refused to extend the Fourth Amendment to restrict the government’s access to data held by third parties. In the 1976 decision United States v. Miller, the Court held that because there can be no reasonable expectation of privacy in information held by a