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Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later. |
Stewart Bratcher is a second year law student at Georgia State University. He blogs at Shouting Fire. - Ed.
As we now know, changing the name of the governmental data mining project from "Total Information Awareness" to "Terrorist Information Awareness was not enough to prevent the project from being halted in Congress. Similarly, applying a tortured acronym like "MATRIX" to the "Multistate Anti-Terrorism Information exchange" was not enough to prevent public outcry once the program was publicized. The reactions to the MATRIX database are interesting, because they suggest that groups with widely divergent interests still share some common interest, independent of those provided by positive law.
The MATRIX is a database operated by Seisint Inc., a privately owned, Florida based corporation. It is made up of a combination of state governmental records (including personal information and fingerprints), and records provided by private corporations (such as credit and loan histories). This information is combined in the database, and is then made available for investigative purposes to state and local law enforcement officials from the participating states.
While individual states choose for themselves whether to participate and what information it will provide, the database is funded almost entirely by the federal government. Although supporters have claimed that MATRIX does not allow "data mining", recent documents uncovered by the ACLU pursuant to requests under the Freedom of Information Act seem to suggest that, even if the system is not "intended" for such a purpose, MATRIX provides law enforcement officials with the technological capability to data mine, should they so desire.
Criticism of the MATRIX has been widespread, and has not been ideologically driven. Groups ranging in viewpoint from the ACLU to the ultra-conservative Southeastern Legal Foundation have objected to the program, citing privacy concerns and the dangers inherent in turning over data to a private corporation. Nor has the criticism derived solely from interest groups.
In Georgia, for example, journalists and legal experts have criticized the program in editorials. And while Georgia Bureau of Investigator director Vernon Keenan, Seisint CEO Paul Cameron, and some academics sought to counter these objections, the public as a whole seems to have been persuaded by the critics. This is evidenced by the near unanimous disapproval of state involvement in the MATRIX, among those who felt strongly enough about the issue to submit letters to the editor of the Atlanta Journal and Constitution.
Apparently, the public objections had some effect. Following a memorandum by Georgia Attorney General Thurbert Baker declaring that the use of Department of Motor Vehicles information in the database would violate state law, Governor Sonny Perdue announced that Georgia would stop sending information the MATRIX database, though criminal record information that had already been sent would be allowed to remain. To support his decision to withdraw, Purdue cited undecided funding issues, the apparent necessity for a change in the law based on Baker's opinion, and "the privacy concerns that the Governor held all along".
While Perdue might have held privacy concerns all along, he never mentioned them prior to this decision, even though he did mention his fiscal and legal concerns previously. Thus, even if the public criticism of the program did not create the Governor's privacy concerns, it appears that at the very least, it caused the Governor to openly discuss his pre-existing concerns in refusing to join.
Georgia is not alone in its experience with the MATRIX. Of the sixteen states who have participated in the database, eleven have withdrawn following public outcry, with the primary concern being invasion of privacy.
This is what makes the MATRIX debate unique. In recent years, the majority of discussions about privacy have centered on that which is constitutionally protected. While the Constitution has sometimes been raised in the MATRIX debate, it seems this was more for effect than pointing out the risk of an actual violation. There is very little validity to constitutional objections about the Matrix. Most of the records were either already in the hands of the state, or in the hands of a private company (thus diminishing the claim of a "reasonable expectation of privacy"). Similarly, minimal protection is provided by federal statutory law or the laws of the several states in this regard.
Because there was very little constitutional or statutory protection preventing program, the typical reliance on positive "legal" rights would be misplaced here. But, despite the lack of any clear, legally grounded "right" in this situation, citizens and groups crossed ideological lines in an effort to protect an undefined "right to privacy".
This could demonstrate something encouraging about modern America: despite our national fetish with rights bestowed upon us by our Constitution and laws, there still exists certain spheres of life where people from varied ideological backgrounds can agree that we should be free from intrusion, even absent prior governmental recognition . That is, a liberty that exists not because of its legal recognition, but simply because it's just simply right.
April 12, 2004 12:00 AM | TrackBackBratcher notes,
Most of the records were either already in the hands of the state, or in the hands of a private company (thus diminishing the claim of a "reasonable expectation of privacy").
It may be true that most of the records are already available in disparate places and that, for any given individual record, this might diminish a claim for a reasonable expectation of privacy as to those individual records. Yet the point of bringing these records together into one database does not have the impact of merely providing them to a wider audience. Having all the data brought together may also result in new information which is not currently available; it may be an "emergent phenomenon."
Is it unreasonable to say that by breaking down the barriers via the MATRIX, one exposes what was previously private and that someone might still have a reasonable expectation of privacy as to this emergent information?
Posted by: Rick Horowitz at April 12, 2004 1:30 PMHere's my question: what do people have to hide? What's with this privacy-fetish, anyway?
Posted by: Brian at April 12, 2004 6:20 PMWhile there may be nothing to hide in the activities that one conducts in day-to-day life. The purpose of data mining, however, is to take all the tangential information known about a particular known activity and create a model. This model can then be compared to a larger data set to find probable target matches.
Still nothing to this...right?
So, for example, I could take a look at all of the purchases, the web surfing activity, the credit history, the demographic data, the marital status, and say the criminal record of the people who buy product X. I can create a model using that information. I can then take that model and compare it to a database of the collected and publically available information for, say, everyone in New England. I can then find a list of people who would probably buy product X as well, so I can target them.
Still no problem...right?
Imagine that I create a new model of the purchase history, the web-surfing activity, the credit history, the demographic data, the marital status, and say the criminal record of the people who have committed pedophilia. I can then compare this model to the same database of the collected and publically available information for everyone in New England and find a list of the people who will probably commit pedophilia. I can then knock on their door and ask for a threshold interview and conduct a line-of-sight inspection of their property. Or, with the new USA PATRIOT provisions on the delayed service of search warrants, I could just obtain a search warrant from a sympatheic judge and go into the house and look around to see what I find without anyone ever knowing unless I found something incriminating.
Is it a problem yet?
I know that this is an extreme example and I know that several legal hoops that don't exist yet would have to be successfully jumped through, but it isn't out of the realm of possibility. I once worked on a data mining project, and I can tell you that this is possible right now with the right set of computers, the right database of information, and enough time.
So...my response to you is: It's not what you know you have to hide, it's what you don't know you have to hide.
Posted by: Brian Smith at April 13, 2004 2:38 AM"Is it a problem yet?"
Not for me.
Clearly I'm not worried about being arrested for pedophilia so I guess the concern is that the police would find something else unsavory in my home.
Unfortunately (fortunately?) for them, all they'd find is some dirty laundry (literally and not euphamistically speaking), assorted junk, and yes, even an adult video or two.
Would I feel a bit put off that I was being suspected of such a heinous crime? Sure, but if the officers came to my door and explained the situation, model, etc. to me, I really wouldn't have a problem with it.
I understand that some people have more shame than myself regarding certain matters they'd like to keep private, but it's not as if the cops searching your house are nuns.
Is there a problem with profiling via such systems? Well, I'd say only to the extent the people being profiled protest it. If it were determined in Congressional hearings complete with studies of cost benefit analysis that such a system would indeed prevent children from falling victim to sexual predators, I'd say sign me up.
It might sound corny or overly naive, but the (legally not morally) innocent have nothing to hide. Let's say the cops searched my home and found a few porno videos or we'll go one step further and say they found some sex toys or something. I don't really think they're going to be talking about the whole night -- people tend to overestimate the importance of their hidden 'flaws' to others, particularly law enforcement.
Now, if someone has a bong and some weed stashed in their closet or any other illicit materials -- too bad. Yes, the 4th Amendment is a wonderful thing, however, I won't shed a tear when it's circumvented in cases where the only people it is protecting are the clearly guilty who stand to benefit from the Exclusionary Rule.
Posted by: Brian at April 13, 2004 9:10 AM