Digital People Watching

The issue of whether government data mining is a violation of the Fourth Amendment depends on whether ISPs are seen as a third party to a transfer of information through their servers. In many ways, this discussion is an extension of the one from last week. Despite popular opinion, the Internet has never been private and free from government intrusion – it’s only just now that the government has the resources by which to exploit Internet users’ lack of privacy. Part of the argument for data mining suggests that its not an action that inherently intrudes on someone’s privacy, since all searches are fed through a third party, the ISP.

Public information such a license plate numbers has always been held to be searchable without violating privacy rights, since the information is meant to identify a vehicle for law enforcement purposes. However, the analogy cannot be made for Internet searches because the point of searches is not to provide information to a la enforcer, but rather for the edification of the individual. A more appropriate analogy would be libraries, since libraries, in and of themselves, are meant to cater to the informational needs of their patrons. As a result, the ALA strongly discourages libraries to disclose lists of books checked out by its patrons. Still, even this analogy is insufficient to cover the immense breadth the Internet’s purview – libraries do not detail purchases, plan travels, or record finances.

Earlier in this blog, I argued that the Internet’s idiosyncrasy in modern life demanded that it receive the same protection that content distributed over phone lines receives. However, that came idiosyncrasy seems to provide an equally compelling case for its availability to law enforcement officials. In light of the compelling societal interest, I seem forced to argue that the government be allowed to do gather this information. Solove (and through him, Schwartz) provides strong challenges to this government access, such as how the information gathering will constrain democracy and individual self-determination and could perhaps even lead to a totalitarian state. Though many of these fears are perhaps overblown and informed more by emotional fervor that legal reasoning, it is nonetheless clear that we are entering a society where free information paradoxically confines us.

Thus, the question hinges upon whether we see the Internet as a public sphere where the government and industry can freely investigate, or a zone that is truly unrestricted that needs specialized protection. Personally, I feel that pattern searching software is justified because it seeks out patterns of behavior that warrant suspicion, analogous to a digital U.S. v. Sokolov. In this sense the government is merely an observer, not an intruder. The question: should the Internet be seen as a digital street upon which the government can observe the goings-on?