Data Matching, Data Mining, and Due Process
86 Pages Posted: 1 Aug 2005
This Article concerns governmental actions based upon computerized data matching (comparison of records) and data mining (profiling). Over 50 federal agencies are using or planning to use data matching and data mining, in a total of 199 programs, some of which are aimed at locating potential terrorists. The most striking aspect of virtually all anti-terrorist data matching and data mining decisions is the absence of even the most rudimentary procedures for notice, hearing, or other opportunities for meaningful participation. Because the Fourth Amendment pre-empts most due process claims involving governmental actions that can be characterized as searches or seizures, this Article first applies Fourth Amendment doctrine to the use of data matching and data mining in those contexts. Other data matching and data mining consequences must be evaluated under the Due Process Clause. After reviewing their potential effects on private, governmental, and accuracy interests, the Article proposes four possible ways of accommodating data matching and data mining with due process. One would be summary hearings prior to denial of access to flights or the imposition of other liberty or property effects. A second involves correction opportunities after the initial data matching or mining consequence, in a fuller process with disclosure and a right to respond. A third means of redress would be after-the-fact compensatory damages for false positives in outcome. Finally, given the frequent need to keep data mining decision algorithms secret, and the difficulty of addressing challenges to them in individual hearings, this Article proposes systematic independent oversight of their validity.
Keywords: Data matching, data mining, watch lists, due process, terrorist, air passengers
JEL Classification: K14, K42
Suggested Citation: Suggested Citation