Judge Posner on privacy and government data mining

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Writing on the Washington Post Op-Ed page this week (Our Domestic Intelligence Crisis, 21 December 2005), Judge Richard Posner asserts that there is no privacy threat from the mere collection of personal information by the government. He writes:

These programs [such as Pentagon’s Counterintelligence Field Activity (CIFA)] are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer. (emphasis added)

This gets are the heart of the question about data mining. If you believe that privacy is, in Justice Brandeis’ words, “the right to left alone,” then you probably don’t agree with Judge Posner. Even if the government does nothing with you data, the simple act of collecting and possessing it can hardly be said to be ‘leaving you alone’. But if you’re more concerned with privacy as the right to control how personal information is used and know that it will be used according to a clear set of rules, constitutional and statutory, then perhaps you’re more prepared to accept Posner’s view.