Rationalizing Government Collection Authorities: A Proposal for Radical Simplification

Abstract

The life of every person in an advanced industrialized country is a mosaic of digital information stored on public and private computer servers around the world. Most of the tiles of your own personal mosaic do not reside in your hands. They consist of the electronic fingerprints you leave with increasing frequency over the course of your day-to-day life on computers controlled by third parties: They are the web sites you visit, the toll-booths you pass through, the purchases you make online or with credit cards, the prescriptions you fill, the phone numbers you dial, the emails you send, the library books you take out, the specific pages you have read on your Kindle, the restaurants at which you eat, the photos you post on Facebook, and the photos that others post of you. One can learn more about the average person by taking a comprehensive look at his or her mosaic than by rifling through that person’s desk or underwear drawer. Yet our mosaics are composed largely of information that receive dramatically less protection in law and custom than do our homes, cars, and effects.

And here’s the rub: Each individual’s mosaic—composed, as it is, of the transactions and data that make up his life—is itself only a single tile in the much larger mosaic that makes up modern society and its behavior. That larger meta-mosaic too is being stored, retained, and constantly processed by government, companies, and individuals. The use of the mosaic often works for the individual’s own protection—to keep terrorists off of airplanes and to keep credit cards safe from identity thieves—but it can also turn against the individual. The mosaics of non-terrorists keep them off airplanes and out of jobs, for example, and prevent them from getting credit or other benefits.

As a society, we have yet to write coherent or sensible rules governing either a person’s own mosaic or the super-mosaic, which constitutes the richest portrait of the collective behavior of a culture ever assembled in the history of the world. In many respects, we have yet to develop even an intellectually compelling way of thinking about the individual and societal interests in amalgamations of non-sensitive trivia which cumulatively paint an intimate portrait. We tend to think about mosaic data in terms of privacy, but this vocabulary does not work well. Much of the material that makes up a person’s mosaic involves records of events that take place in public, not in private. Driving through a toll booth and shopping at a store, for example, are not exactly private acts. Only a small fraction of the information in any individual’s mosaic is plausibly protected by the Fourth Amendment. Much of it, by contrast, is not protected by any law at all.

In this paper, we look at one corner of the problem of regulating the mosaic—the problem of access by government investigators to individuals’ personal data stored in the hands of third parties.

Keywords: Data Privacy, National Security, FISA