Volokh Conspiracy: Data-Mining and the Fourth Amendment

The Volokh Conspiracy reports on a Sixth Circuit decision in a Fourth Amendment case that addresses whether querying a database triggers Fourth Amendment protection. The majority concludedthat it does not: If the government collected the data in the database in compliance with the Fourth Amendment, analyzing that data does not implicate the Fourth Amendment.

I certainly don’t have the training to analyze this decision from a legal perspective, but one commenter illuminates concerns with such a ruling:

This ruling is very troubling for the following reasons:

* The 4th amendment only applies to the government. According to this ruling, if a commercial entity collects information about you without a warrant the government may then search that information without any judicial review. Completely circumventing the 4th amendment. It is like saying to the police, “Well, you can’t look at the phone records of someone without a warrant—unless you pay someone to impersonate said person and get them for you and then query their database.”

I can just imagine the advertisements now: “4th Amendment getting in the way? We’ll get around it for you! http://privacy-schmivacy.us”

* Surrendering information to any given entity should not be the same thing as surrendering personal information to the government. Just because I’m willing to fill out some company’s form doesn’t mean that I would do so if I expected the government to gain free access to that info without just cause and judicial oversight.

* Information contained in commercial databases is often inaccurate. If law enforcement starts using credit histories, employer databases, and other data stores to query information no one will be held accountable if that information is not correct. At least with a government-run database the citizen can petition to have information about them disclosed and/or corrected.

* An innocent person that is wrongfully accused of a crime may never know the true source of incorrect data in any given non-government database. In a government-run database, all data comes from cited public sources (such as court documents, police reports, DOT records, etc).