Ranting to /dev/null

Creepy but entirely legal

Various parties are upset about FBI data mining. While this is not surprising, the problem is that data mining is probably entirely legal.

Why?

Because once your information is a matter of public record you have no reasonable expectation of privacy.
- Your vehicle and drivers license registration? All available.
- The complaints you make to government consumer protection agencies? Already in government hands.
- The records of your real estate transactions? All registered with local and probably state governments.
- Information gathered by the National Insurance Crime Bureau? Though not a government agency, they get most of their information from public sources.
- Airline flight information. Not currently coming from public sources, but as the FAA regulates all air travel, getting these records is trivial.

Things which would be illegal but are not on the list:
- Most financial transactions and bank statements. The government can't look at your check book, but obviously knows when you sell a bond or move large amounts of currency into or out of the country.
- Domestic telephone conversations.
- Snail mail. This probably includes things like UPS and FedEx, but I'm sure there's interesting case law about that.
You generally eed a subpoena to get any of these, and there are probably legal penalties if they're surrendered to any third-party, governmental or no, without your consent or a court order. There is no allegation that the data mining program does any of these things. Which is kind of the point of data mining: making sense of information that's already available, not going after information which wasn't previously available.

Things which are in a grey area:
- Email communications. As they're stored on a third-party server in ways that physical mail is not, it's an open question as to whether the government can access those. Obviously civil liberties types don't like this, but I don't think the case law has fully dealt with the issue. It isn't looking terribly good though.
- International communications, including mail. Currently the subject of the NSA wiretapping program. Presidents have periodically asserted the right to monitor and filter communications going into and out of the country for national security reasons, and though Congress doesn't particularly like this, the Court has never held that the Executive lacks this authority. FDR created an Office of Censorship in late 1941 by executive order.

In general, things which you transmit directly to a domestic intended recipient without exposing the content to anyone else cannot be reached without a subpoena. But anything you do as a matter of public record--and that's an increasing number of actions these days--is automatically accessible to law enforcement, and the degree to which your action is witnessed or available to third parties is the degree to which the government can get at that without your consent.

This, of course, is my off-the-cuff analysis. I'll probably learn more about this next year. The class Freedom of Speech is looking increasingly appealing.

Posted by ryan at July 12, 2007 06:53 AM | TrackBack