43 Harvard Civil Rights-Civil Liberties Law Review
The article examines the government's growing appetite for collecting personal data. Often justified on the basis of protecting national security, government data mining programs sweep up data collected through hundreds of regulatory and administrative programs, and combine them with huge datasets obtained from industry. The result is an aggregation of personal data - the "digital footprints" of individual lives - never before seen. These data warehouses are then used to determine who can work and participate in Social Security programs, who can board airplanes and enter government buildings, and who is likely to pose a threat in the future, even though they have done nothing wrong to date. The article describes the extraordinary volume and variety of personal data to which the government has routine access, directly and through industry, and examines the absence of any meaningful limits on that access. So-called privacy statutes are often so outdated and inadequate that they fail to limit the government's access to our most personal data, or they have been amended in the post-9/11 world to reduce those limits. And the Fourth Amendment, the primary constitutional guarantee of individual privacy, has been interpreted by the Supreme Court to not apply to routine data collection, accessing data from third parties, or sharing data, even if illegally gathered. The result is not only that individual privacy goes unprotected, but that national security is compromised because it is increasingly based on data mining initiatives that are untested, ill focused, and rely on inaccurate or incomplete data. These shortcomings, and the urgent need for Congress to act to address them, have been widely recognized by numerous public and private commissions, but largely ignored by members of Congress - republicans and democrats alike. The article concludes that there is wide agreement about both the need to restore some limits on the government's use of personal data and the form that those limits should take. The problem is the unwillingness - or inability - of Congress to act.
Cate, Fred H., "Government Data Mining: The Need for a Legal Framework" (2008). Faculty Publications. Paper 150.