Week 9: Fourth Amendment: Reasonable Suspicion – Databases, Data Mining & Access to Private Records

As new technologies dramatically reduce the cost of data collection and storage, both government and private actors are able to amass vast quantities of information about individual citizens. Databases can aggregate this data, forming detailed dossiers that reveal the activities and interests of targeted individuals. What restrictions are there on the Government’s ability to collect and aggregate of information about individuals? Under what circumstances may the Government gain access to records and databases maintained by private parties? Could the Government subpoena a history of your search records from an ISP? Does pattern-based data mining by counter-terrorism agents constitute the kind of “fishing expedition” prohibited by the Fourth Amendment? How can the Fourth Amendment be applied in light of the counter-terrorism and foreign intelligence needs of a post-9/11 world?

Required readings:

Government Databases:

• Solove & Schwartz, Privacy, Information, and Technology, pp. 330-331.
• Arizona v. Evans, 514 U.S. 1 (1995).
• United States v. Sokolow, 490 US 1 (1989).
• United States v. Ellison, 462 F.3d 557 (6th Cir. 2006). Skip Part II of the majority opinion, and skim the rest of it. Skip all of the dissent except Part II.B, but please read that part closely.

Government Data Mining:

• Solove & Schwartz, Privacy, Information, and Technology, pp. 335-341 (Start at “Government Data Mining”).
• Wikipedia on Carnivore. Skim.
• Wikipedia on Narus Insight. Skim.

Government Access to Private Databases:

• ECPA, 18 USC §§ 2510-2521.
  
• Yahoo! Compliance Guide For Law Enforcement, pp. 1-5, 11-12.
• Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2002). Part I (skim), Part II.A, B & C, Part IV.A.