In the wake of the revelations of the extent of our government’s collection of information from our phone calls, there has been a good deal of discussion about whether that is a problem. Most people feel safe if they did nothing wrong. They have NO idea!
The problem with big data is that it adds 2 + 2 but gets lots of results other than 4, falsely excluding lots of people from the voting lists, from buying a house, from getting on an airplane, people the authorities think they need to discredit. There is NOTHING hypothetical about that. When databases get matched together they combine information about people who may or may not be the same. We know, for example, that many thousands of people have been denied the right to vote because their names showed up, erroneously on lists of criminals, the result of the similarity of names.
Misuse of data includes accurate but innocent data on the basis of which someone could contact a potential employer, landlord, etc. with lies about you. Again that kind of misbehavior is well documented in the behavior of former longtime FBI Director Hoover and the Bureau under him. No need to find any misbehavior – just enough accurate information about the people and causes that Hoover disliked that he could use to mess with people’s lives. If you went to your library you’d probably find a whole shelf of books on that issue.
So I think the risks of government collection of data about us are very substantial. But what’s to be done?
Once upon a time it made sense to fight about collection of data and the ACLU has been doing that for decades. Nevertheless the days when it made sense to fight about the collection of data are long gone. Collection of data is so ubiquitous by both public and private entities that there is almost no way to stop it. Plainly, also, lots of us don’t want to stop it, regardless of the risks. Maybe the government will mess up a bunch of us but it might catch one terrorist.
So what’s the alternative? I think the issue now is how to control government data and indeed private big data as well. We could have rules – ethical, civil or criminal rules – about what may and may not be done with data. I think that’s a necessary step. But in an area this politicized, principles and rules by themselves won’t come close. So I think the issue is supervision. We need an ombudsman or other control officers to prevent misuse. But they have to have real powers, not just responsibility, a job with a mission, but the power to compel other officials to reveal what they are doing and the power to stop it.
I don’t think the FISA Court is close to a good enough check on government data collection, storage and dissemination. As it exists it is the alter ego of one man – Chief Justice Robertts.[i] And its authority only extends to the first step, the collection of data, although it can and has conditioned its orders on what happens to the data collected. I think we need a much more robust organization, with powers to follow up what is being done with existing data, with a central staff, and I’d be happy if it were generally chosen by the minority party much like New Yorkers used to choose a Comptroller or an Attorney General from the minority party – but not a Chief Justice whose term on the Court will probably long outlive any party’s minority status.
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[i] 50 USCS § 1803(a)(1).
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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