Jennifer Stisa Granick, Principles for Regulation of Government Surveillance in the Age of Big Data
Comment by: Ronald Lee
Workshop draft abstract:
Traditionally, regulation of government surveillance in favor of privacy and other civil liberties has focused on government action at the time of information collection. However, technological innovations have revolutionized government surveillance, due to the distribution of cheap sensor/collection technology; voluntary information disclosure/collection by individuals and civil entities; cheap storage; and increasingly powerful data processing. Current privacy protecting policies, therefore, are increasingly irrelevant. It is too late to reconsider the wisdom of fusion centers, government access to civilian databases, or the proliferation of drones in the hands of local law enforcement. Thus, new principles and tools which focus on subsequent storage, processing, use or disclosure are required if the legal system is to play an effective role in ensuring surveillance capabilities are not misused or abused. Sources for these principles and tools include (1) the Privacy Act, (2) minimization and necessity case law under the Wiretap Act, (3) fair information practices, (4) Privacy by Design principles, and (5) the Ninth Circuit opinion in Comprehensive Drug Testing. This paper will derive from these sources specific principles and practices that could help maintain individual privacy interests in the age of government’s Big Data surveillance capabilities. My goal is to highlight the problems, the dead ends, and some possible solutions for policy makers.