Data Mining Violating Fourth Amendment Protections?

January 09, 2011

The Fourth Amendment protection from unreasonable searches and seizures is a cornerstone of our criminal justice system. Unfortunately for some, that protection is being unwittingly eroded through data mining. The practice of analyzing vast amounts of electronic data on personal dealings, from shopping preferences to Facebook updates, is commonly used by marketing agencies to streamline advertising campaigns.

However, law enforcement agencies are now mining data to monitor suspected criminal activity and identify potential terrorist threats. Personal data derived from a number of sources, including banks, cellular providers and online merchants, are analyzed at fusion centers operated by the Department of Homeland Security throughout the United States. According to The Constitution Project, a Washington, D.C. based civil liberties group, government data mining programs are classified, so people are oblivious to the extent their personal data may be analyzed.

Supporters of data mining believe that the practice is essential to maintaining national security. By using sophisticated algorithms to analyze telephone data, the government can monitor potential threats, coordinate defenses and neutralize attacks before they are carried out. Data mining opponents contend that the privacy issues and costs of maintaining such a system outweigh the benefits of finding suspected terrorists. They believe that the litany of false positives (lawful activities erroneously viewed as terrorism threats) combined with the estimated $50 million annual cost will not be enough to offset the prospect of unlawful searches and seizures.

In the midst of these competing concerns, the Constitution Project is asking Congress and President Obama to establish oversight policies for government data mining. In 2008, a Privacy and Civil Liberties Oversight was created, but it has never had any board members.

In a recently released study on data mining, the Constitution Project stated, "We can adopt rules that both allow the government to harness the vast seas of information for our collective benefit and simultaneously protect the delicate relationship our Constitution established between the government and the governed."

The House Committee on Homeland Security recently heard from policy experts on the loopholes in the Electronic Communication Privacy Act and its continued exploitation by government agencies. There was a growing fear among panelists that the lack of accountability could compromise civil liberties as well as national security. They also indicated that predictive data mining programs should have more oversight, especially since no evidence exists to indicate such programs have effectively thwarted terrorist activities.

It is unknown whether the incoming Congress will hold more hearings on data privacy.

Article provided by Greg S. Law, PLLC
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