Data Mining as Search: Theoretical Insights and Policy Responses - Discrimination and Privacy in the Information Society - page 312

Chapter 18
Data Mining as Search: Theoretical Insights and
Policy Responses
Tal Zarsky *
Abstract. Data mining has captured the imagination as a tool which could
potentially close the intelligence gap constantly deepening between governments
and their new targets - terrorists and sophisticated criminals. It should therefore
come as no surprise that data mining initiatives are popping up throughout the
regulatory framework. The visceral feeling of many in response to the growing
use of governmental data mining of personal data is that such practices are
extremely problematic. Yet, framing the notions behind the visceral response in
the form of legal theory is a difficult task.
This chapter strives to advance the theoretical discussion regarding the proper
understanding of the problems data mining practices generate. It does so within the
confines of privacy law and interests, which many sense are utterly compromised by
the governmental data mining practices. Within this broader theoretical realm, the
chapter focuses on examining the relevance of a related legal paradigm in privacy
law - that of governmental searches. Data mining, the chapter explains,
compromises some of same interests compromised by illegal governmental
searches. Yet it does so in a unique and novel way. This chapter introduces three
analytical paths for extending the well accepted notion of illegal searches into this
novel setting. It also points to the important intricacies every path entails and the
difficulties of applying the notion of search to this novel setting. Finally, the chapter
briefly explains the policy implications of every theory. Indeed, the manner in which
data mining practices are conceptualized directly effects the possible solutions
which might be set in place to limit related concerns.
18.1 Introduction: Beyond the Visceral Response to
Governmental Data Mining
Governments around the world are facing new and serious risks when striving to
assure the security and safety of their citizens. Perhaps the greatest concern is the