Data Mining as Search: Theoretical Insights and Policy Responses - Discrimination and Privacy in the Information Society - page 323

any way it deems fit, data mining cannot be considered a “fishing expedition.” 5 In
other words, no “search-related” interest is compromised by the analysis (or, to
carry through the metaphor, there is no “expedition” in these actions), as the
government is clearly operating within its mandate, rather than intruding on the
rights of the innocent. Therefore, this perspective does not prove helpful in
mapping the boundaries of legitimate and excessive data mining practices.
This theoretical obstacle follows from today's understanding of “searches” as
an almost dichotomous variable; actions are either a search (and thus lead to a
harsh legal analysis usually calling for the finding of “probable cause”) or they are
not (in which case no constitutional form of protection is called for). The harsh
implications (for government) of actions being considered as “searches” have led
courts to limit the breadth of this term. Yet this dichotomous perspective of the
concept of searches is not set in stone and the problem not beyond repair. Recent
scholarship argues that rather than a dichotomy, searches should be viewed on a
sliding scale. In other words, the legitimacy of search should be established
through a proportionality-based analysis (Slobogin, 2007); different forms of
intrusions will be met by different forms of legal thresholds to protect search-
related interests. Every such intrusion will call for a proportionate level of
protection and standard of review.
The proposed shift to a proportionality based analysis of search interests will
force policy makers to address the “fishing expedition” problem data mining
practices set forth. Data mining analysis could be considered as a minute intrusion
on its own (rather than a process which is not a “search” at all), when examing the
impact on a single citizen. Yet when considering the aggregated impact on a broad
segment of the population subjected to the data mining analysis, the result might
be quite different. Indeed, in cases where the benefits of the data mining analysis
are limited or unsure, and the population segment extremely broad, such practices
might be found to be a disproportionate measure (Slobogin, 2007). Therefore, this
specific theoretical perspective of “searches” can provide a different form of
“calculus” for configuring whether a governmental data mining is acceptable -
and a balance which is quite different than the one called for under the previously
mentioned theories.
18.4 Conclusion: Novel Practices, Classic Concepts and Policy
Proposals
This chapter draws out a basic conceptual framework for "importing" theoretical
concepts used in the “search” discourse to properly understand concerns
associated with governmental data mining practices. Yet the discussion need not
stay in the realm of theory. This conceptual framework can also assist
policymakers searching for a balance in today's world of global insecurity. These
policymakers are now challenged with the structuring of schemes striving to use
databases of personal information to promote law enforcement and stability. In
5 Note that most recently, in US v. Jones (1.2012), the count's concurring opinion questioned the
wisdom of the third-party doctrine.