Data Mining as Search: Theoretical Insights and Policy Responses - Discrimination and Privacy in the Information Society - page 319

Searches as Psychological Intrusions
The first theory for distinguishing between legal and illegal searches looks to their
intrusive nature. In other words, the government should meet a higher threshold of
scrutiny if its actions are understood to be intrusive. 1 While intrusion is usually
understood to be one that is physical, it has a psychological aspect as well (it
should be noted, that this theory was not yet accepted in US courts). 2 The notion
of psychological intrusion can be easily identified when government searches the
home and self of citizens. Yet it need not be limited to these instances.
Intrusiveness of various forms is the mirror image of key privacy interests, such as
the right to solitude and “to be left alone.”
Examining whether mere psychological (as opposed to physical) intrusions are
afoot can lead this normative theory to the data mining context. It is fair to assume
that many will feel intruded when confronted with the existence of data mining
practices carried out with regard to their personal data. This aggravated sense of
intrusion (as opposed to any other form of review of personal information on file
with the authorities) could be derived from two key unique elements of the data
mining process (which distinguish it from other governmental practices). First, the
process's automated nature might generate additional anxiety. Second, data
mining's ability to predict future behaviors could cause greater worry. These
predicted behaviors might be premised upon thoughts and traits that relevant
individuals have strived to keep secret or perhaps did not fully grasp. Yet now they
are in the hands of the government. Empirical data gathered regarding the public
attitude towards searches upholds this theory, while showing indications of anxiety
towards these novel and (assumedly) “intrusive” practices (Slobogin, 2007).
The “psychological intrusion” theory provides an interesting perspective for
examining the extent of privacy concerns arising from governmental data mining
analyses. However, when rigorously applying this theory to the data mining
context, it does not provide a conclusive response as to the intrusiveness of these
governmental practices. This should come as no surprise, as psychological
1 In the US, the test for the legality of searches is one which is premised upon the
“reasonable expectation of privacy.” Such expectation has two elements - subjective and
objective/normative. Clearly, this discussion pertains to the subjective element - and a
search might indeed be found to be subjectively unreasonable if considered intrusive -
even merely on a psychological level. Indeed, wiretapping which does not involve a
physical intrusion is considered unreasonable as well. However, the test includes an
important objective/normative layer. Here, justices decide which form of subjectively
unreasonable conduct is objectively unacceptable as well. As mentioned in the text, the
courts have yet to find that psychological intrusions in the form of governmental searches
throughout legally obtained data are unreasonable. For more on the theoretical analysis of
the Fourth Amendment, see Orin Kerr, Four Models of Fourth Amendment Protection , 60
S TAN . L. R EV . 503 (2007) (mapping out four theoretical models to understand and analyze
the Fourth Amendment which are used interchangeably by courts). The theory presented
in this segment coincides with his first model - the Probabilistic Mode - a descriptive
model which is premised about expectations based on current social norms. Id. at 508-13.
2 This notion of “psychological intrusion” in computer searches (as a notion that would
provide Fourth Amendment protection) was not accepted by the Sixth Circuit Court of
Appeals in United States v. Ellison , 462 F.3d 557 (6th Cir. 2006). It was, however, noted
by the dissent. Ellison , 462 F.3d at 568 (Moore, J., dissenting).