This post excerpts my book’s discussion of the second failed privacy model. (If you just can’t wait to see all three, or my idea for a better solution, I’ve posted a free copy of the chapter here.)
The second way of protecting privacy is to require what’s called a “predicate” for access to information. That’s a name only a lawyer could love. In fact, the whole concept is one that only lawyers love.
Simply put, the notion is that government shouldn’t get certain private information unless it satisfies a threshold requirement—a “predicate” for access to the data. Lawyers have played a huge role in shaping American thinking about privacy, and the predicate approach has been widely adopted as a privacy protection. But its value for that purpose is quite doubtful.
The predicate approach to privacy can be traced to the Fourth Amendment, which guarantees that “no Warrants shall issue, but upon probable cause.” Translated from legalese, this means that the government may not search your home unless it has a good reason to do so. When the government asks for a search warrant, it must show the judge “probable cause”—evidence—that the search will turn up criminal evidence or contraband. Probable cause is the predicate for the search.
Lawyers spend a lot of time thinking about the Fourth Amendment. Every law student spends weeks exploring its intricacies. Evidence from an illegal search cannot be used in a criminal prosecution. So millions of defendants have made claims under the Fourth Amendment after being convicted, giving the courts many opportunities to apply the amendment. All problems look like a nail to someone who has only a hammer. And all privacy problems tend to look like the Fourth Amendment to lawyers who have grown up parsing its protections.
It’s been applied to cops on the beat, for example. A traffic stop is pretty close to an arrest, and a pat-down is even closer to a full-fledged search. But requiring warrants and probable cause would make it impossible to pat down rough customers in a bad part of town or to stop drivers just to check license and registration. So the courts came up with a new predicate for such intrusions on our freedom—“reasonable suspicion.”
When a flap arose in the 1970s over the FBI practice of assembling domestic security dossiers on Americans who had not broken the law, the attorney general stepped in to protect their privacy. He issued new guidelines for the FBI. He was a lawyer, so he declared that the FBI could not do domestic security investigations of Americans without a predicate.
The predicate wasn’t probable cause; that was too high a standard. Instead, the attorney general allowed the launching of a domestic security investigation only if the bureau presented “specific and articulable facts giving reason to believe” that the subject of the investigation may be involved in violence.
Actually, the story of the FBI guidelines shows why the predicate approach often fails. The dossiers being assembled by the FBI were often just clippings and other public information. They usually weren’t the product of a search in the classic sense; no federal agents had entered private property to obtain the information. Nonetheless, the FBI guidelines treated the gathering of the information itself as though it were a kind of search.
In so doing, the guidelines were following in Brandeis’s footsteps—treating information as though it were physical property. The collection of the information was equated to a physical intrusion into the home or office of the individual. Implicitly, it assumes that data can be locked up like property.
But that analogy has already failed. It failed for Brandeis and it failed for the RIAA.
It failed for the FBI guidelines, too. As clippings became easier to retrieve, clippings files became easier to assemble. Then Google made it possible for anyone to assemble an electronic clips file on anyone. There was nothing secret about the clippings then. They were about as private as a bus terminal.
But the law was stuck in another era. Under the guidelines, the FBI and the FBI alone needed a predicate to print out its Google searches. You have to be a pretty resilient society to decide that you want to deny to your law enforcement agencies a tool that is freely available to nine-year-old girls and terrorist gangs. Resilient but stupid. (Not surprisingly, the guidelines were revised after 9/11.)
That’s one reason we shouldn’t treat the assembling of data as though it were a search of physical property. As technology makes it easier and easier to collect data, the analogy between doing that and conducting a search of a truly private space will become less and less persuasive.
No one thinks government agencies should have a predicate to use the White Pages. Soon, predicates that keep law enforcement from collecting information in other ways will become equally anachronistic, leaving law enforcement stuck in the 1950s while everyone else gets to live in the twenty-first century.