Big Data and its threat to The Fourth Amendment

Published June 24, 2014   |   
Simon Barton

John Villasenor, Professor of Public Policy at UCLA, recently projected that it will be possible for governments to record and analyze everything an individual says and does in the near future. In the wake of the NSA revelations you could argue this already exists, so what does the future hold for the Fourth Amendment and how has The Obama Administration developed its data strategy through legislation?

The Fourth Amendment has proven to be one of the more flexible parts of the constitution that has shaped American politics in recent times. As the arsenal of tools at the disposal of criminals have increased and delved into darker reaches of the internet, so too has the need for police and government officials to be supported by data through law and legislation.

Big Data poses a considerable threat to the power of the Fourth Amendment and could precipitate a more privacy-sparce society, a topic we have looked at in this magazine on numerous occasions. The Obama administration recognises the challenges that lie ahead and coincidently proposed the Consumer Privacy Bill of Rights (CPBR) in 2012 that addressed the vulnerability of personal data in the digital world. Regarded as a ground breaking blueprint for consumer privacy, it was later developed with the Cybersecurity Framework that looks to bolster America’s technological infrastructure.

The CPRB was in response to the data mining that had been occurring within large Internet companies like Google and Yahoo. Much of the worry came from targeted adverts that infringed users’ rights to surf the Internet without fear that they were, unintentionally, leaking private information for the benefit of advertisers. If an organisation fails to keep to these guidelines, they face possible convictions from the Federal Trade Commission. Addressing one of the most topical issues right now in the domain of data, it shows that Obama is willing to fight what many view as a losing battle against Internet powerhouses like Google.

Arguably there have already been significant strides towards Big Data and policing becoming compatible. Elizabeth E. Joh, Professor at UC Davis School of Law, claimed that the United States Supreme Court already considers evidence in the form of predictive analysis so long as it is not the sole justification for prosecution.

As of now, the Supreme Court does not entertain data as a justifiable means to pull someone over if it is not corroborated by other forms of suspicion or evidence. The fact that data is being considered in this context shows that it will be an essential tool for the police in the future. If so, legislation will have to develop in line with the advancement of data mining tools, so that the public feel they are sufficiently protected from unwanted data espionage.

At the inaugural Open Government Partnership meeting in September 2011, President Obama pronounced “the strongest foundation for human progress lies in open economies, open societies, and in open governments”. Since then, the president has kept to his word and looked to make proactive commitments to making these words a reality. He integrated the Open Government National Action Plan in 2011, which outlined a set of 26 commitments to increase the transparency of public information and data. The underlining aim is to put the American public at the epicentre of the decision making process.

This is perhaps most visible in the We The People petition which has given the American public a platform for direct communication with the issues that concern them the most. It has been reported that 270,000 petitions have been raised concerning topical issues from gun crime to data privacy. The petition has also had a direct effect on public policy.

Another idea brought to bear was that of ‘MyData’, one of the Obama administrations most important initiatives. With accessibility at its forefront, it has given citizens the opportunity to have access to their data on demand. These datasets, for example, include; tax records and student loan information. This is considered an essential development, as a large number of data driven trans-actions between individuals and companies are likely to continue for the foreseeable future.

In a recent White House Report called “Big Data: Seizing Opportunities, Preserving Values”, they claim that the majority of data related problems lie in the hands of ‘small data’, a term that refers to the loss of data that often leads to financial fraud and identity loss. Named ‘small data’ due to the small datasets and the comparably limited amount of people affected, ‘small data’ does not rely on the sophisticated mining techniques needed for Big Data. According to the report, ‘small data’ trends in relation to privacy have predominately been quashed since the implementation of legislation.

In contrast to this, the NSA revelations have to some extent, shown that despite the magnitude of legislation implemented throughout the Obama Administration, deception through Big Data remains rife at the core of world politics. Although quick to reassure his public in the wake of the allegations, Barack Obama has, until recently, done very little to quell the air of suspicion that now surrounds the White House and its use of data.

If we are to believe what we read, The Obama Administration is hell-bent on guaranteeing an openness and accessibility with data that allows their public to contribute in a meaningful way to society. Since the turn of the decade legislation has been centred on insuring that data is used in an ethical manner and never to the detriment of a lawful citizen.

Going forward there will have to be a real emphasis on investment so that Big Data analytics develops in a way that improves people’s lives from both a social and political perspective. On the face of it, the Obama administration has made real progress when it comes to protecting the efficacy of the Fourth Amendment. However, you can’t help but think that there is more than meets the eye with this issue, and that in the world we live in our personal privacy and the Fourth Amendment are at real risk of capitulation.

This article was published in the 10th issue of Big Data Innovation Magazine. You can download the magazine from here. Republished with permission