chapter is focused), the analysts use data mining applications to generate rules
based on preexisting data. Thereafter, these rules are applied to newer (while
partial) data, which is constantly gathered and examined. In doing so, software
searches for the patterns and rules it previously established and encountered.
Based on new information and previously established patterns, the analysts strive
to predict outcomes prior to their occurrence (while assuming that the patterns
revealed in the past pertain to the current data and environment as well).
A notion usually mentioned when considering data mining analyses is the level
of automation this process facilitates. Data mining analyses indeed provide a
higher level of automation than that available with other governmental
alternatives; the predictive process somewhat limits the extent of human discretion
in the process. Yet the level of automation this process entails might be easily
overestimated. Analysts play important, yet at times hidden roles in the online
process. Their actions (such as those mentioned in the previous paragraph) directly
impact the outcome of the process and therefore affect actual governmental policy.
18.3 Governmental Data Mining and/as (Illegal) Searches?
18.3.1 Finding a Theory
A governmental data mining process inherently calls for automatically reviewing
and analyzing profiles filled with personal information regarding many
individuals. Such data was previously collected by either government or
commercial entities. It is hard to imagine that individuals conceded to the data
mining process here described at the time of collection or at any later stage. If the
information was collected by the government, citizens might not have even
provided consent at the point of collection. Rather, they merely received a basic
and vague notice of the collection and future uses provided by the government.
Engaging in personal data analysis without the direct consent of relevant data
subjects contradicts to several “privacy” related legal concepts. However, the
precise meaning of privacy is elusive, and the privacy concerns arising in this
context could be articulated in a variety of ways. In this chapter, I choose the
salient paradigm of “searches” to try and illustrate the nature of privacy concerns
data mining analyses generate. Of course, other paradigms of privacy might
pertain to the data mining context as well. Yet this chapter focuses on a relatively
specific privacy notion, which on its face is relevant and can prove insightful.
Applying the search paradigm to this context would imply that given various
traits of the data mining process, this form of analysis should not be considered
reasonable. Applying “search” related arguments to the data mining context has
several implications. On the theoretical level, such a linkage will allow for
“importing” well developed concepts of law into a novel context where they can
potentially enrich a confused discourse. However, such linkage can have far
reaching practical ramifications. In many cases, for a legal search to commence,