Academic journal article Santa Clara High Technology Law Journal

Lost in Translation? Data Mining, National Security and the "Adverse Inference" Problem

Academic journal article Santa Clara High Technology Law Journal

Lost in Translation? Data Mining, National Security and the "Adverse Inference" Problem

Article excerpt


Imagine the childhood game of telephone: children sit in a circle and one child whispers a secret in the ear of a child sitting next to him. That "secret" is then relayed to the next child through a whispered remark. Eventually, the secret is relayed through the entire chain of children, as if multiple telephone calls had been placed, and a message relayed to numerous parties. Very often, the message that is relayed to the last child in the chain is very different from the original secret conveyed. The message has gotten distorted and lost in translation. Why? As data gets shared with a wider circle of people and multiple human actors have been asked to interpret and relay a message, as they understood it, to new people, the original message gets lost in translation. (1)

Today, a giant game of telephone is going on with our personal data. Our personal data, which we might disclose to a bank clerk over a counter, or provide to a customer service representative over the telephone, ends up far away from where it first started. Through a process known as data aggregation, messages about who we are and records containing our personal identifiers are being compiled from many sources, and this aggregated data is being transferred to third parties at a rapid speed. During this process of travel and aggregation, a seemingly inconsequential disclosure of a phone number to a store clerk can snowball into an "enhanced" file. Such files are reformatted, edited, analyzed, interpreted, and changed to include volumes of information about a household, personal interests, and even medical conditions.

Often, we have little control over the messages that are being conveyed because we are not privy to this process--it happens behind the scenes. It is only recently that the American public has begun to realize that they have little control over their personal information once it is shared with a third party. And this has become of even greater concern now that we know that the federal government may be at the end of a "telephone" chain, reviewing personal data in order to combat terrorism.

Since September 11, 2001, the federal government has tried to connect more "dots" (data points) to prevent terrorism--by piecing together pieces of information and data to uncover possible plots and patterns. As part of this effort, the Executive Branch has introduced various proposals to "mine" private sector commercial databases and public records (as well as public databases) for information on everything from consumer addresses to financial and credit profiles. Such information, when fed into computers and analyzed, is meant to help the U.S. government predict who might be involved in terrorist activity. (2)

Data mining is a technique that uses information technology to identify previously undisclosed patterns and connections between different points of existing data, often with the goal of predicting future behavior. (3) In the world of commerce, this is done to maximize profit and to improve consumer experience. In recent years, the business of data collection has expanded with the rise of commercial data brokers--companies that aggregate consumer data from a wide variety of records, both public and private. Such data is then combined to create robust and detailed profiles on consumers. Data brokers may aggregate everything from cell phone records to travel reservations. (4) The government often purchases consumer data from such data brokers for varied purposes. (5) Law enforcement, for example, might want to try and locate the addresses of persons with outstanding arrest warrants.

Civil rights advocates have declared that governmental use of private sector data is a serious infringement on the right to privacy. One of the reasons for this declaration is that government now has access to vast "digital dossiers" maintained by commercial data brokers. (6) These private sector dossiers are available for purchase and reveal a great deal about our habits, patterns and daily activities. …

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