When Edward Snowden exposed the blanket data-mining of all Verizon calls, and it was also revealed that the federal government has access to the major Internet servers, some expressed outrage. There’s good reason to question whether it’s appropriate for government to mine such massive data sets without first letting the public know. It’s particularly awkward for the Obama administration, which may have repeatedly misled the public about the existence of such practices.
Aside from whether it was necessary or wise to hide such executive decisions from public view, some have raised the issue of whether such collection of data is even constitutional. The short answer is that such data collection and mining probably are constitutional under current understandings of informational privacy.
To reach that conclusion, though, it’s insufficient to note that big business can mine our Internet search behavior to the point of creepily targeting us with prescient, personalized ads. The “state action” doctrine means that businesses and ordinary people are not obliged to respect constitutional privacy zones short of a specific law requiring such respect.
The U.S. Constitution’s liberty guarantees are designed to constrain government parties from encroaching on basic individual rights. Of course, if we don’t stop private parties from data mining our Internet trails, then there’s a good question about whether freedom from being tracked really is a basic expectation and right.
The first Supreme Court case raising informational privacy concerns as a constitutional matter was Whalen v. Roe in 1977. New York required doctors to report the identities of all people getting certain kinds of drugs. That was challenged as unconstitutional, but the Supreme Court upheld the law.
In the process of deciding Whalen, though, the court did acknowledge that informational rights are protected by the Constitution. Those rights include not only the right to privacy of personal information but also to be free from governmental interference in private decisions out of an individual’s concern for “sharing” information about those decisions with government. However, the court in Whalen didn’t consider either right to have been threatened seriously by New York’s prescription drug reporting law.
On June 3, in its 5-4 decision in the case of Maryland v. King, the court again showed presumptive indifference to governmental collection of large data sets. The court ruled that it was constitutionally permissible for government to collect mouth swabs of DNA from anyone, even those wrongly arrested. The court knew the DNA would then be plugged into a national DNA database, yet credited that intrusion and the database generated from those swabs as being useful to help solve cold cases.
With respect to call records and access to Internet servers, the government can plausibly claim that governmental data mining has been useful to nip nascent terrorist plots in the bud. Assuming that to be true at least to some extent, there’s little doubt the collection and mining of the data itself would pass constitutional muster.
If the public really is concerned about data mining by the government, or for that matter, by business and other private parties, it could demand that laws be passed to cease the massing of data dossiers on law-abiding citizens.
Where informational privacy laws have been passed, the courts have generally defended those protections against other constitutional challenges. For instance, in the 2000 case of Reno v. Condon, the Supreme Court upheld the federal Driver’s Privacy Protection Act, which outlawed the sale by states of drivers license information to private parties.
The presumptive constitutionality of governmental data mining, plus the scarcity of laws protecting personal information, together should make us credit those who are expressing fears about the collection by the federal government of personal data.
For instance, Obamacare will put lots of sensitive personal medical information in the hands of the IRS. Also, some versions of proposed gun regulation would put lots more information about people, their guns and their mental states in bureaucratic hands. Given the lack of constitutional restraints on governmental data mining, the critics warning about such new governmental powers over information may not be so crazy.
David Oedel teaches constitutional law at Mercer University.