- January 16, 2015
- Clayton Rice, Q.C.
In my post titled “Nothing to Hide” dated November 16, 2014, I discussed the threat to personal security posed by unrestricted government collection of personal information. The collection of this kind of data is called data mining. Professor Stephen J. Schulhofer, in More Essential Than Ever: The Fourth Amendment in the Twenty-first Century (2012) describes the dangers associated with data mining at pp. 135-7: “Software that aggregates and analyzes countless megabytes of disparate detail can identify patterns and point a law enforcement officer toward individuals who meet predetermined criteria – whether for drug use, bribery, ‘radical’ politics, patronizing of prostitutes, or any other subject that interests the investigator…Data mining gives the government access to a citizen’s political and religious beliefs, personal associations, sexual interests, or other matters that can expose the individual to political intimidation, blackmail, or selective prosecution for trivial infractions.”
Professor Schulhofer states that, like unrestricted wiretapping, data mining technologies have the potential to obliterate large segments of the zone of privacy protected by the Fourth Amendment to the Constitution of the United States and he goes on to argue that unchecked government power is the antithesis of the Bill of Rights at p. 136: “…[O]ne central purpose of our Constitution is to protect individual freedom, while restraining the powers of government. And for good reason. The extraordinary resources available to the government give it unique power and unique potential to threaten the liberty and autonomy of individuals. A preference for leaving activity in the private sector unregulated (if possible) is an axiom of our political system; a preference for unchecked government power is the antithesis of our Bill of Rights.”
Professor Daniel J. Solove, in Understanding Privacy (2009) discusses three data mining programs engaged in by the United States government at pp. 191-2. In 2002, the Department of Defense developed a project called Total Information Awareness under Admiral John Poindexter. The program involved the collection of financial, educational and health data to be analyzed for behaviour patterns used to identify terrorists. The Multi-State Anti-Terrorism Information Exchange (MATRIX) is a database of personal information accessed by various states. [See: Jacqueline Klosek, The War on Privacy (2007) at p. 51] The National Security Agency (NSA) has been engaged in an extensive data mining program on telephone records discussed in my post titled “Privacy and Telephony Metadata” dated October 2, 2014. According to Professor Solove at p. 192: “After September 11, the NSA obtained customer records from several major phone companies and analyzed them to identify potential terrorists. The telephone-call database was reported to be the ‘largest database ever assembled in the world’.”
In Canada government data mining activities are shrouded in secrecy and conducted without transparent accountability. In an article in the National Post titled “Canadian spy watchdog has known about data-mining for seven years” dated June 10, 2013, it was reported that Robert Decary, a retired judge and watchdog on Canada’s Communications Security Establishment (CSE), had been advised by CSE that Defence Minister Peter MacKay had approved a new directive to the Canadian Security Intelligence Service (CSIS) on the use of metadata gleaned through foreign intelligence gathering. The directive was obtained by The Canadian Press under the Access to Information Act. The directive stated that CSE’s use of metadata, “…will be subject to strict conditions to protect the privacy of Canadians, consistent with these standards governing CSE’s other programs.” The steps to be taken by CSE to protect Canadian privacy were deleted from the version of the directive released under the access to information application. Watchdogging does not get much weaker than that. The CSE is a key element of the intelligence sharing network known as the Five Eyes that I commented on in my post titled “Spies and Surveillance Warrants” dated December 2, 2014, composed of Canada, the United States, Britain, Australia and New Zealand.
In addition to problems of information dissemination, Professor Solove argues that information collection and information processing are also implicated at p. 193: “Many scholars have referred to the collection of information as a form of surveillance. ‘Dataveillance,’ a term coined by Roger Clarke, refers to the ‘systematic use of personal data systems in the investigation or monitoring of the actions or communications of one or more persons.’ Christopher Slobogin has referred to the gathering of personal information in business records as ‘transactional surveillance’.”
However, surveillance is just one of the problems created by data mining. Professor Solove has argued that, far too often, discussions about government data mining define the problem solely in terms of surveillance or disclosure and that this way of understanding the problem is embodied in the metaphor of George Orwell’s novel Nineteen Eighty-four. [See: Daniel J. Solove, Nothing to Hide: The False Tradeoff between Privacy and Security (2011) at pp. 25-26] Professor Solove does not explicitly say so but it is obvious to anyone who has read Nineteen Eighty-four that he has in mind the ubiquitous surveillance to which the reader is introduced when Winston Smith enters his apartment in the opening scene: “Inside the flat a fruity voice was reading out a list of figures which had something to do with the production of pig-iron. The voice came from an oblong metal plaque like a dulled mirror which formed part of the surface of the right-hand wall. Winston turned a switch and the voice sank somewhat, though the words were still distinguishable. The instrument (the telescreen, it was called) could be dimmed, but there was no way of shutting it off completely.” [Knopf (1992) at pp. 3-4] Surveillance can create chilling effects on freedom of speech and freedom of association which are essential to a free society and vibrant democracy.
Professor Solove argues, and he is right, that there is another set of problems implicated by the processing of personal information that are better understood with the metaphor of Franz Kafka’s novel The Trial. Professor Solove makes the point in Understanding Privacy at p. 194: “In Kafka’s novel, an unwieldy bureaucratic court system ‘arrests’ the protagonist but refuses to inform him of the charges. It maintains a dossier about him that he is unable to see. His case is processed in clandestine proceedings…In The Trial, the problem is not inhibited behaviour but a suffocating powerlessness and vulnerability created by the court system’s use of personal data and its exclusion of the protagonist from having any knowledge or participation in the process.” Professor Solove does not say so but the metaphor is all the more terrifying because the protagonist, Joseph K., is innocent. Kafka tells us that in the first sentence: “Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning.” [Knopf (1984) at p. 1]
In my post “Nothing to Hide” dated November 16, 2014, I discussed the four problems associated with unrestricted government gathering of personal information: aggregation, exclusion, secondary use and distortion. Professor Solove returns to those problems in Understanding Privacy with this Kafkaesque insight at p. 194: “The harms consist of those created by bureaucracies – indifference, errors, abuses, frustration, and lack of transparency and accountability. For example, data mining creates the problem of exclusion because people are often prevented from having access and knowledge about how their information is being used, as well as barred from being able to correct errors in that data. Many data-mining programs are conducted in secret and lack transparency. People often are denied the ability to correct errors or to challenge being singled out on the basis of a particular profile. There is little control over how long the data is kept and what it can be used for. The problem of secondary use is implicated because there are few limitations on how data might be used in the future. There is little public accountability or judicial oversight of data-mining programs.”
Data mining thus creates information processing problems that result in vulnerability and power imbalances between citizens and their governments. It allows agents of the state, insulated from accountability, to exercise significant power over the lives of citizens. The core difficulty is that we often conceive of the problems of databases in terms of surveillance when these problems are associated more with information processing. Data mining is as much Kafkaesque as it is Orwellian.