'Big Data Blacklisting' by Margaret Hu in (2015) 67
Florida Law Review comments
“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation of rights and privileges through government-led big data programs as a constitutional harm under substantive due process, and identifies the obstruction of core liberties.
Hu's 'Small Data Surveillance v. Big Data Cybersurveillance'
highlights
some of the critical distinctions between small data surveillance and big data cybersurveillance as methods of intelligence gathering. Specifically, in the intelligence context, it appears that “collect-it-all” tools in a big data world can now potentially facilitate the construction, by the intelligence community, of other individuals’ digital avatars. The digital avatar can be understood as a virtual representation of our digital selves and may serve as a potential proxy for an actual person. This construction may be enabled through processes such as the data fusion of biometric and biographic data, or the digital data fusion of the 24/7 surveillance of the body and the 360° surveillance of the biography. Further, data science logic and reasoning, and big data policy rationales, appear to be driving the expansion of these emerging methods. Consequently, I suggest that an inquiry into the scientific validity of the data science that informs big data cybersurveillance and mass dataveillance is appropriate.
As a topic of academic inquiry, thus, I argue in favor of a science-driven approach to the interrogation of rapidly evolving bulk metadata and mass data surveillance methods that increasingly rely upon data science and big data’s algorithmic, analytic, and integrative tools. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court required scientific validity determinations prior to the introduction of scientific expert testimony or evidence at trial. I conclude that to the extent that covert intelligence gathering relies upon data science, a Daubert-type inquiry is helpful in conceptualizing the proper analytical structure necessary for the assessment and oversight of these emerging mass surveillance methods.
Her 'Taxonomy of the Snowden Disclosures' in (2015) 72
Washington and Lee Law Review offers
a proposed taxonomy of the Snowden Disclosures. An informed discussion on the legality and constitutionality of the emerging cybersurveillance and mass dataveillance programs revealed by former NSA contractor Edward Snowden necessitates the furtherance of cybersurveillance aptitude. This Essay contends, therefore, that a detailed examination of the Snowden disclosures requires not just a careful inquiry into the legal and constitutional framework that guides the oversight of these programs. A close interrogation also requires a careful inquiry into the big data architecture that guides them. This inquiry includes examining the underlying theories of data science and the rationales of big data-driven policymaking that may drive the expansion of big data cybersurveillance. These technological, theoretical, and policymaking movements are occurring within what has been termed by scholars as the National Surveillance State. Better understanding the manner in which intelligence gathering may be shifting away from small data surveillance methods and toward the adoption of big data cybersurveillance methods — and assessing the efficacy of this shift — can factually ground future debates on how best to constrain comprehensive and ubiquitous surveillance technologies at the dawn of the National Surveillance State.
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