Page 17 - Privacy in a Cyber Age Policy and Practice

2 PRIVACY IN A CYBER AGE

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expression to capture the importance of this transformation. The main
point is not that information can now be processed at a tiny fraction of
the cost and at incomparably faster speeds than when it was paper bound,
which is certainly the case, but that modes of analysis that divine new
personal information out of personal data previously collected are com-
mon today, but were inconceivable when most personal information was
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paper bound. In other words, preventing excessive intrusiveness required
less recourse to the Fourth Amendment when most personal information
was paper bound because very often it was simply impossible to accrue
and analyze large amounts of personal information—but much expanded
protections are necessary now that these abilities have much increased.
Because this observation is critical to all that follows, and because the term
“secondary usages” (which implies usages less important than the first or
primary ones) is a rather weak one, I employ from here on the infelicitous
term “cybernation” to refer to the process of storing information, com-
bining it with other pieces of information (“collating”), analyzing it, and
distributing it. Cybernated data can be employed in two distinct ways,
and both represent a serious and growing threat to privacy. A discrete
piece of personal information, collected at one point in time (“spot” infor-
mation) may be used for some purpose other than that for which it was
originally approved, or the fruits of spot collection may be pieced together
with other data to generate new information about the person’s most inner
and intimate life. (For a more complete definition of spot collection, see
Chapter 2.)
The cyber age privacy doctrine must lay down the foundations on which
the U.S. Congress can develop laws and the courts can accumulate cases
that will determine not just what information the government may legally
collect, but what it might do with that data. According to some legal schol-
ars, the D.C. Circuit’s decision in Maynard and the concurring opinion
authored by Justice Samuel Alito in Jones provide the building blocks for
this new edifice, which is sometimes referred to as a mosaic theory of the
Fourth Amendment, and under which “individual actions of law enforce-
ment that are not searches for Fourth Amendment purposes may become
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searches when taken together en masse.” This observation is based on Jus-
tice Alito’s argument that the GPS tracking of a vehicle on a public highway
constituted a search because of the length of time over which the monitor-
ing took place (i.e., 28 days). This opens the door to take into account the
volume of information collected and presumes that, while limited amounts
of collection may be permissible, large amounts could constitute a viola-
tion of privacy. Jones, however, still only deals with collection. Hence, most
of the work of laying down the foundations for the protection of privacy
from cybernated information remains to be carried out.