Data Mining as Search: Theoretical Insights and Policy Responses

Abstract

Data mining has captured the imagination as a tool which could potentially close the intelligence gap constantly deepening between governments and their new targets – terrorists and sophisticated criminals. It should therefore come as no surprise that data mining initiatives are popping up throughout the regulatory framework. The visceral feeling of many in response to the growing use of governmental data mining of personal data is that such practices are extremely problematic. Yet, framing the notions behind the visceral response in the form of legal theory is a difficult task.

This chapter strives to advance the theoretical discussion regarding the proper understanding of the problems data mining practices generate. It does so within the confines of privacy law and interests, which many sense are utterly compromised by the governmental data mining practices. Within this broader theoretical realm, the chapter focuses on examining the relevance of a related legal paradigm in privacy law – that of governmental searches. Data mining, the chapter explains, compromises some of same interests compromised by illegal governmental searches. Yet it does so in a unique and novel way. This chapter introduces three analytical paths for extending the well accepted notion of illegal searches into this novel setting. It also points to the important intricacies every path entails and the difficulties of applying the notion of search to this novel setting. Finally, the chapter briefly explains the policy implications of every theory. Indeed, the manner in which data mining practices are conceptualized directly effects the possible solutions which might be set in place to limit related concerns.