Private Data/Public Regulation
The digital nature of the data allows it to be acquired in bulk. Rather than just focusing on the target of a particular investigation, the government can gather the information indiscriminately about large swaths of the population or even about all of us.(2) This was the case with the National Security Agency’s collection of our telephone metadata, but it also is the case at the local level by automated license plate readers.(3)
The uses of this data are so broad that it is not just what we traditionally think of as the “police” who gather the data, but a variety of government entities involved in public safety and law enforcement. Bulk data collection has allowed law enforcement to shift its focus from a reactive investigative stance to a proactive and deterrent one. The police long have investigated particular cases, with suspects they had in mind or were trying to identify.(4) Now, government agencies utilize large databases to predict where crime will occur, or mine them for evidence of criminality.(5) This occurs without a particular suspect in mind and is aimed more broadly at the entire population or a segment of it.
No doubt this data collection has value, but precisely how much is an open question, and may depend in part on its use. For example, data collected from third parties, such as genetic information, has helped—to solve cold cases.(6) Facial recognition was vital to identifying the insurrectionists of January 6, 2021.(7) These are investigative uses. Here, the value is plain, but the extent of that value unknown. The utility of bulk data collection for predictive or deterrent purposes is far more uncertain.8 In truth there is far too little assessment of the utility of these new techniques, for whatever purpose they are deployed.
But one thing is clear: placing this much personal data in the hands of the government has its costs. It endangers our personal security, and our sense of privacy. It threatens our right to associate, including for political activity. It puts enormous power in the government to control behavior. And too often the collection is disproportionately of people of color.
I’m going to make a novel argument that, if adopted, would allow for capturing the benefits of data-driven policing, while mitigating its costs. My argument is that government agencies that engage in policing cannot collect digital data, particularly about individuals for whom there is no suspicion of wrongdoing, without a sufficient regulatory scheme in place. Thus, if these practices are to continue, legislative bodies must step in and adopt regulation
What’s novel about my argument is that I frame it in constitutional terms. I’m not just arguing that regulation is desirable as a normative matter. My precise claim is that as a matter of constitutional law, unauthorized and unregulated bulk digital collection of surveillance data simply may not occur. Absent such authorization and regulation, courts should invalidate such collection. More bluntly: with or without court intervention, government agencies involved in the policing function should cease immediately what they are doing until sufficient authorization and regulation is in place.
