Is Data Mining Ever a Search Under Justice Stevens' Fourth Amendment?

Abstract

On a daily basis, we convey a wealth of information about our online and offline activities to various third parties, such as Internet service providers, telephone companies, credit card issuers, banks, and the like. Under the Supreme Court's third-party doctrine, government data mining of this information in individual or aggregated databases does not constitute a search regulated by the Fourth Amendment. According to the Court, any expectation of privacy we may possess in this information is categorically unreasonable, because we presumptively assumed the risk that it would be turned over to the authorities. Justice Stevens has signed onto this narrow view of the Fourth Amendment.

However, as this symposium paper on his jurisprudence argues, Justice Stevens also has suggested limits on the third-party doctrine and its applicability to data mining. In particular, he has implied that normative considerations rather than risk assumption ultimately must determine the extent of our freedom from unreasonable searches; that this freedom from government intrusion deserves greater rather than lesser protection when our privacy is threatened by technological forces beyond our control; and that technology that enables inferences about our personal lives may violate this freedom as much as actual exposure of our private activities. Although it is unclear whether the Court or even Justice Stevens will embrace these suggestions when confronted with third-party cases involving data mining, they at least point the way to a future in which the Fourth Amendment may staunch the loss of privacy from surveillance technologies that approach total information awareness about us.

Keywords: Justice John Paul Stevens, data mining, Fourth Amendment, search, third party doctrine, Katz, Smith, Miller, Ferguson, Kyllo, Caballes, Place, privacy, technology, surveillance, ChoicePoint, LexisNexis, MATRIX, Total Information Awareness, TIA, National Security Agency, NSA