Data Mining as Search: Theoretical Insights and Policy Responses - Discrimination and Privacy in the Information Society - page 318

constitutional doctrine” (Solove, 2008). At least in the US, these initiatives are
also probably permitted according to current privacy laws in view of various
exceptions and loopholes (Cate, 2008).
As mentioned above, this chapter sets aside the doctrinal analysis and examines
the issue at hand from a theoretical and normative perspective. Doing so allows
for quickly working through the relevant issues, and leaving room for an in-depth
discussion of various perspectives. Yet this discussion might not remain entirely
theoretical for long. It should be noted that the doctrinal outcome mentioned is not
set in stone. Data mining allows the government to add additional layers of
knowledge after further analyzing the data - knowledge previously undiscovered
by either side. This novel development might lead to changing the
abovementioned assumptions regarding privacy expectation in lawfully-collected
datasets. Thus, courts might choose to change the existing doctrine in view of new
theoretical understandings (which I strive to promote here), changes in public
opinion, or other factors.
18.3.2 Data Mining as “Searches”: Introducing Three
Perspectives
On a theoretical level, linking data mining concerns to search-related interests in
the privacy context can be an illuminating exercise. This is because some of the
underlying theories for articulating the interests compromised by illegal searches
directly address the elusive privacy interests compromised by data mining
initiatives. These nexuses between search interests and data mining practices are
indeed the premise of this entire chapter. However, linking data mining and the
notion of illegal searches in privacy law must be done with caution. This is due to
the lack of consensus among scholars regarding the definition of illegal searches
and the rationale behind their prohibition.
This chapter sets forth three normative theories, which are especially helpful in
understanding concerns related to governmental data mining. These theories are
drawn from the existing literature and case law examining searches in the
technological age in general, and in the context of data mining in particular. With
these theories in mind, it is easy to see how privacy concerns in the context of data
mining could be articulated using the terminology and concepts of illegal searches.
As presented below, not all of these theories are of equal strength. Some (the
first) are weaker than others in explaining the privacy concerns arising in this
context. Every theory however addresses a different aspect of the harms of
privacy. The first focuses on the individuals and their state of mind while the
second on the government and its unchecked powerful force. The third theory
presents somewhat of a combination of both elements, and calls for limiting the
government's ability to engage in “fishing expeditions.” I now move to present
these theories, how they might apply to the data mining context and what
analytical obstacles might arise when doing so.