Bigfoot: data mining, the digital footprint, and the constitutionalization of inconvenience.

Author:Leonetti, Carrie

    "Sometimes I think this whole world is one big prison yard. Some of us are prisoners, some of us are guards." (1)

    1. The Brave New World: The Digital Dragnet

      Moore's Law dictates that the number of transistors on a computer processor, and therefore computers' ability to outpace human capacity for processing information, will grow exponentially. (2) The result is that the gap between what human beings and what the computers that they build can do will forever itself increase exponentially. (3) If the Supreme Court does not develop a Fourth Amendment principle that recognizes this exponential potential of computers to intrude on our private lives, the invasiveness of advanced computer technology will eclipse human surveillance as a threat to privacy. (4) Recently, President Obama acknowledged the threat that advancing technology poses to civil liberties, when he noted that "the power of new technologies means that there are fewer and fewer technical constraints on what we can do. That places a special obligation on us to ask tough questions about what we should do." (5)

      As Americans now know from the Snowden leak scandal, data mining is already in full swing. (6) Since 9/11, the Government has thrown an enormous amount of resources--agents, money, and computer time--into the "global war on terrorism," which includes tracking suspected terrorists at home. In pursuit of their antiterrorism goals, American law enforcement agencies rely on computer-automated monitoring of phone calls and the Internet, where once agencies had only human intelligence and judgment. (8)

      Political parties and commercial retailers also engage in data mining. (9) When people "succumb to that offer for a Walmart gift card or a free iPhone in exchange for taking a survey and divulging all sorts of personal information," such as their addresses, transaction histories, salaries, debt levels, marital statuses, and health histories, that information can then be sold to digital marketers. (10) An "incomprehensibly large amount of raw, often real-time data that keeps piling up faster and faster from scientific research, social media, smart phones [and] virtually any activity that leaves a digital trace." (11) Cell phones divulge behavioral and personal information, like phone numbers and in-store browsing habits, to merchants. (12) Companies like Apple, eBay, PayPal, and Amazon record and retain information from users of their mobile payment services. (13) Companies like Google, Facebook, Twitter, YouTube, and Netflix are awash in their users' personal information from their check-ins, geo-tagged photographs, tweets, and movie viewing histories. (14) Facebook, which has amassed more personal data than any other entity in history--names, photos, tastes, and desires of nearly one billion people (15)--now allows its users to buy virtual goods with a currency that it calls Facebook Credits, which "could add transaction histories to its already rich databases of behavioral information." (16)

      The Federal Communications Commission recently caught Google operating a surreptitious program that harvested "payload data" user traffic, including the full text of e-mails, passwords, sites visited, and "other sensitive personal information" that was transmitted over unencrypted Wi-Fi networks "from unsuspecting households in the United States and around the world." (17) The program was part of Street View, Google's project to photograph streetscapes over much of the world, which "also involved gathering information about local wireless networks to improve location-based searches." (18) The purpose of the program was to analyze the payload data "offline for use in other initiatives." (19) Perhaps more troubling to privacy advocates, (20) Google's secret data-collection program is not illegal under current American law. (21)

      Meanwhile, American intelligence agencies have begun to purchase large corporate databases. (22) The data that the National Counterterrorism Center ("NCTC") is collecting, retaining, and analyzing includes this private commercial data, such as travel records, credit card transactions, e-mail, and phone calls. (23) The data in the Government's possession are so voluminous that it is building massive data centers to house them. (24)

      And then, of course, in the summer of 2013, the string of revelations about the National Security Agency (NSA)'s access to and data mining of private information concerning Americans began, with whistleblower Edward Snowden's disclosures about the "Prism" program, which tracks the metadata of Americans' telephone and email communications without meaningful judicial oversight or individualized suspicion. (25) The NSA compiled the data after the FBI obtained orders from the Foreign Intelligence Surveillance Court (FISC) directing telecommunications service providers to produce what it calls "telephony metadata in bulk," which it then handed over to the NSA for storage, search, and analysis. (26)

      The NSA also intercepts the communications of Americans if they are in contact with a foreign intelligence target abroad. (27) Disclosures in recent months from Snowden's leaked documents show that the agency routinely spies on trade negotiations, the communications of economic officials in other countries, and foreign corporations. (28) The most recent revelations now show that these data-collection practices intended to target foreign suspects have included monitoring an American law firm representing a foreign government in trade disputes with the United States. (29)

    2. The Constitutional Dilemma

      All of these various intersecting projects overlap to authorize domestic law-enforcement and intelligence agencies to collect information about Americans on a far greater scale than may be suggested by any single authorization alone. (30) When these searches are done without a warrant, they have significant impacts on privacy. (31) In the meantime, advances in technology are rapidly outpacing the state of the law. (32)

      This Article focuses on one subset of these searches: warrantless data mining. Whether these warrantless searches count as searches for Fourth Amendment purposes and whether they fit within an exception to the general warrant requirement are unresolved questions because the Supreme Court has not weighed in on them. (33) Unless the Government uses the data that it has mined as evidence against a particular individual (or unless a Government whistleblower is willing to risk international extradition and federal prison), people generally are not even aware that the data mining has occurred and, thus, are not in a position to challenge it in court. (34)

      Government data mining poses a conundrum for current Fourth Amendment jurisprudence. (35) Its individual components (records and the individual items of information--consumer purchases, public surveillance, information contained in public records) are all legal for the Government to acquire, without a warrant or probable cause, individually. (36) All of the individual points of information being analyzed are available already. (37) But the individual information is of little use in criminal investigations. (38)

      The investigatory contribution of new data-mining technologies is the Government's ability to collect, combine, and analyze them in the aggregate: to make a computer database with every piece of information about every person and conduct "pattern analyses" of it. (39) It is only the collection and aggregation of millions of these individual data points by modern computers that gives the items meaning and the Government the ability to profile its citizens without oversight from the courts--what one court has referred to as the "mosaic" resulting from "a broad view of the scene." (40)

      The Government has defended the warrantless data mining on the ground that it is tracking only metadata (data about phone conversations, like cell-phone locations, the identities of parties to communications, dates and times of communications) rather than the contents of telephone calls and e-mails--in other words, who is communicating, when, where and with whom, but not what is being communicated. (41) In a recent case, the United States Court of Appeals for the Sixth Circuit agreed, holding that, even after United States v. Jones, (42) "pinging" a cell phone did not infringe on its user's reasonable expectation of privacy in his/her location. (43) This distinction, however, between metadata (date, time, phone numbers, location) and contents (the conversation itself) is a shallow one. (44)

      Imagine, for a minute, attempting to get through an average day without leaving an electronic trace. When you wake in the morning, do not turn on your cell phone or any other device with global positioning satellite ("GPS") location services (or your phone company will know where you are). Do not use anything that runs off of electricity (or your electric company will know that you are home). Do not arm your burglar alarm (or your alarm company will know when you leave). Do not drive in your car (or your car's computer will record driving information for use if you have a car accident). Avoid public cameras that could be mined for facial recognition information (ATMs, convenience stores, public transportation hubs). Do not use a credit or debit card or withdraw money from your bank account (or the bank will know that you have done so, where, and how much you have withdrawn). Do not talk on the telephone or send a fax or e-mail (or your phone company or ISP will know that you have done so). Obviously, no Facebook or Instagram. Do not use your pass card to go to the gym, park a car, or go to work after hours.

      Most of us do not care if our bank knows that we have withdrawn $100 or used a debit card to buy a croissant and latte. On the contrary, we hope that they are keeping an eye on our withdrawals and purchases as the stewards of our financial transactions and assets. In fact, unless we are contemplating...

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