[Orin Kerr, September 5, 2006 at 11:24am] Trackbacks
Datamining and the Fourth Amendment:
Today the Sixth Circuit handed down a Fourth Amendment case that addresses an interesting issue: Does querying a database trigger Fourth Amendment protection? The majority concludes that it does not: If the government collected the data in the database in compliance with the Fourth Amendment, analyzing that data does not implicate the Fourth Amendment. This is correct: broadly speaking, the Fourth Amendment regulates the collection of evidence, not the analysis of data already collected.

  Judge Karen Nelson Moore dissents, arguing among other things that the policy concerns raised in Fourth Amendment cases suggests that this may be incorrect. My sense, though, is that Judge Moore is confusing two steps: she is using the policy framework applicable to determine the reasonableness of a search, while the issue here is whether any search at all occurred.

  Hat tip: Howard, who (I am happy to report) is back from vacation.
American Psikhushka (mail) (www):
Can this be used as a "blank check" to keep a file on anyone they've had contact with? I mean say at one point the government rifled through your medical and financial records in compliance with the 4th Amendment. Can they link to this information whenever they want and get updated information? That would amount to ongoing electronic surveillance of anyone who they have ever had access to for any reason. Can it be intrepreted and applied this broadly?
9.5.2006 12:52pm
fishbane (mail):
This is correct: broadly speaking, the Fourth Amendment regulates the collection of evidence, not the analysis of data already collected

Wasn't there an argument made that the NSA program was not probelmatic, because collecting data didn't trigger the 4th, only review by a human?
9.5.2006 12:57pm
James Grimmelmann (mail) (www):
The dissent, however, does have something of a point about raising the argument for the first time on appeal. While the result may well be correct as a matter of established Fourth Amendment doctrine, the majority opinion is light on facts relevant to the legaity of the database query. As the dissent suggests, reaching the database issue here may make the opinion less useful for future cases than an opinion in a case where the issue was properly presented would.
9.5.2006 1:04pm
Sigivald (mail):
American: As this opinion was about querying a database (ie looking at the data already in it), not getting information into it, I don't see that it could be used as such a "blank check".

Any updates to the database would themselves have to be justified under the Fourth Amendment, no?
9.5.2006 2:19pm
Bill Sommerfeld (www):
fishbane: it would seem that this ruling recognizes two different sorts of database: one type containing potential evidence collected and maintained under 4th amendment rules, and a second type containing data which was not collected under 4th amendment rules; presumably warrants or equivalent authorization would be required for law enforcement searches in the latter case. But IANAL.
9.5.2006 2:27pm
Riskable (mail) (www):
This ruling is very troubling for the following reasons:

* The 4th amendment only applies to the government. According to this ruling, if a commercial entity collects information about you without a warrant the government may then search that information without any judicial review. Completely circumventing the 4th amendment. It is like saying to the police, "Well, you can't look at the phone records of someone without a warrant—unless you pay someone to impersonate said person and get them for you and then query their database."

I can just imagine the advertisements now: "4th Amendment getting in the way? We'll get around it for you! http://privacy-schmivacy.us"

* Surrendering information to any given entity should not be the same thing as surrendering personal information to the government. Just because I'm willing to fill out some company's form doesn't mean that I would do so if I expected the government to gain free access to that info without just cause and judicial oversight.

* Information contained in commercial databases is often inaccurate. If law enforcement starts using credit histories, employer databases, and other data stores to query information no one will be held accountable if that information is not correct. At least with a government-run database the citizen can petition to have information about them disclosed and/or corrected.

* An innocent person that is wrongfully accused of a crime may never know the true source of incorrect data in any given non-government database. In a government-run database, all data comes from cited public sources (such as court documents, police reports, DOT records, etc).

Note: Is data from a commercial database submissible in court? Wouldn't that violate the sixth amendment?

-Riskable
http://riskable.com
9.5.2006 7:37pm