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Complexities of federal data mining

By Steve Lilienthal
web posted July 21, 2003

Suppose you are interested in chemistry and purchase some chemicals that can be used either to conduct innocent experiments or to help make a bomb. Your purpose is to conduct innocent experiments.

Then, suppose you happen to be a conservative and tend to be a heavy purchaser of those publications advocating the defense of property rights. Some of the publications that you purchased, because of that interest, examine those advocates who have been very aggressive in challenging the government's dictates. But you are a student and live in an apartment. You own no property and the small publishing house from which you made your purchases has been taken over by a company that does not respect the privacy agreement. Imagine what could happen next.

The Federal government is not prevented from purchasing the information about what you have bought from either the chemistry company or the publishing house.

Congress passed the Privacy Act of 1974 with the intention of protecting citizens from abuse of the information that the government has collected about them in its own databases. Indeed, citizens have the right to see specifically what the government has compiled about them. They are allowed to correct mistakes in their records. The law applies only when the government is creating a "system of records," but it is in force even if the government has hired a private-sector contractor to create the system.

However, as noted by a recent paper "Privacy's Gap: The Largely Non-Existent Legal Framework for Government Mining of Commercial Data" (PDF format) issued by the Center for Democracy & Technology, the law fails to cover contractors who provide the government with access to the databases that they already operate for their own purposes -- such as commercial entities that collect information for bookkeeping or marketing reasons. Indeed, regulations issued in 1983 reinforced this point by requiring contractors to be subject to Privacy Act compliance only when "the design, development, or operation of a system of records on individuals is required to accomplish an agency function."

Thus, the Privacy Act fails to cover those times when the snoopers in the federal government decide they would like to take a peek at already existing private-sector databases just for their interest. Ostensibly, they may do so in the interest of guarding against terrorism before another 9/11 happens, but it is very easy to imagine how loopholes in the law and mistakes in the handling of data could turn the innocent into the guilty.

"Data mining" is a technology that enables searches through billions of bits of transactional information to discover patters that fit potential terrorist activity, but without being based on any specific suspicion of an individual.

Furthermore, when that information is obtained by a government agency, if it is involved in law enforcement or intelligence, they are not required to maintain either accurate records or even to let you have access to their records and to correct it. Your information is in the "system" operated by federal law enforcement but the safeguards of the Privacy Act do not apply. Plus, federal law enforcement agencies can pass that information on to other requesting agencies for law enforcement purposes at any level of government.

Now suppose the FBI had been developing matches for their profiles of terrorists in regions where the property rights movement had been involved in some heated (but so far non-violent) scrapes with the government. The FBI, however, anticipates the possibility of violence, and therefore has decided to engage in hypothetical profiling and to conduct data mining. You just happen to wind up in their database for buying the chemicals and the books.

Imagine the information about your purchases of chemicals and books is passed on to the Transportation Security Agency for their "watch list" of potentially dangerous passengers. [You have] "anti-government" tendencies.

Then, in the course of the investigation of you by the FBI, they obtain, with a court order, the records of the college that you attend, which they can do thanks to Section 507 of the USA Patriot Act. Now the FBI's interest in you and your records is noted by the academic administration, particularly when it is time to review your application for a grant. It is a close contest, but the "safer" choice for a grant wins because the "safer choice" does not buy books that challenge the government's purview over land or buy chemicals by mail (relying on the school's chemicals), and he has not had the FBI sniffing around him on campus [perhaps sniffing out his records].

Data mining has an innocent sounding name, and it is easy to think that if you cannot trust Uncle Sam, then who can you trust? Indeed, many Americans are more likely to worry about the fact that commercial houses have their names on file than the FBI. But in the post-9/11 world especially, the boundaries between public and private data will not be so clear. It is easy to see how innocent citizens can have their information in private databases mined and the wrong conclusions drawn, resulting in a lot of trouble. Once the wrong information is in the system, it is not going to be easy to have it corrected. In fact, the odds are you will never know what they have on you.

That's why the public needs to know more about data mining as practiced by the federal government. Loopholes can allow your information to suddenly become the government's. If the wrong conclusions are drawn, [they may] cause a lifetime of misery.

It is very difficult to know what precise information the law enforcement and intelligence and national security agencies are gathering now or plan to gather in the near future, much less to say four or five years from now. But the loopholes in the law exist for such a scenario regarding the chemistry student to occur. Conservatives in particular have plenty of reason to worry. Perhaps not now under the Bush Administration. But what if a new administration takes power in 2005 that wants to institute federal land planning and is unwilling to brook opposition to its unconstitutional land-grabbing schemes? It arouses plenty of heated opposition when a Janet Reno think-alike is at Justice.

Suppose you homeschool your family and they are learning about John Brown and other notorious dissenters including those at Waco and Ruby Ridge. Under Section 215 of the USA Patriot Act, the FBI accesses your family's book borrowing records from the public library. They do this without having to specify what they are investigating. They also use the power granted them under Section 215 to review the records of your travel agency and, of course, your name comes up. Plus your name will also pop up thanks to the existing laws requiring reporting of your purchase of a shotgun. It all winds up in law enforcement databanks.

Whether or not, the powers of the federal government to mine data make us safer from terrorism is open to serious question. The government has yet to prove its efficacy in fighting terrorism. You have every reason not to feel safe about the information that the government's law enforcement and intelligence agencies can obtain about you, place into their databanks, engage in the mixing and matching of your records, and share the data with other law enforcement and intelligence agencies. Suddenly, you, a law-abiding citizen, in the eyes of the government, may very well come to be viewed as suspicious.

It should be enough to make you write your congressman.

Steve Lilienthal is a policy analyst with the Free Congress Foundation.

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