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Data mining by governments, others stirs up critics
Scripps Howard News Service


December 22, 2010

WASHINGTON - It sounds like something from a Hollywood conspiracy movie: Huge databases of private citizens' personal data -- from parking tickets to Facebook status updates -- are being searched by government analysts.

A pattern emerges. An investigation begins.

Typically, people being investigated have no idea this is going on. They have no right to find out what information is about them is in the databases.

Supporters of data mining say that compiling and analyzing individuals' public and private records is often necessary to maintain national safety.

But opponents say it violates Fourth Amendment protections against unlawful search and seizure, and it is not effective enough to justify the cost of maintaining the databases.

The Privacy and Civil Liberties Oversight Board was created in 2008 to oversee data-mining searches, but it has never had any members. The Washington-based Constitution Project has called on President Barack Obama and Congress to appoint and confirm members.

Because most information obtained by data mining is classified, people outside law enforcement don't know the extent of the existing programs, and it's nearly impossible to know if someone was mistakenly flagged, says Sharon Bradford Franklin, senior counsel for the Constitution Project.

"We can adopt rules that both allow the government to harness the vast seas of information for our collective benefit and simultaneously protect the delicate relationship our Constitution established between the government and the governed," the Constitution Project said in a new data mining study.

Both government and private agencies use data mining. So-called fusion centers, which could be run by the government or private companies, bring together information from multiple data banks.

Clear lines of accountability do not exist for fusion centers or their employees.

In a yet-to-be released study in the Hastings Law Review, Danielle Citron, a University of Maryland law professor, and Frank Pasquale, a Seton Hall law professor, say there is widespread confusion over whether state law or the federal Privacy Act of 1974 governs fusion centers.

"Evidence has accumulated that the cure may be worse than the disease. Even though the press, public and advocacy groups have had only limited access to their operations, several violations of civil rights and liberties have been uncovered," the professors wrote in the article, scheduled for publication in March.

Department of Homeland Security officials have maintained that state law governs fusion centers because they are operated by states, but federal employees working at fusion centers must follow the federal law, experts say.

"Data mining improves the odds that, with the appropriate human intervention, we will be able to catch and prevent future terrorist attacks," said Paul. R. Pillar, a former CIA intelligence officer.

Yet critics say pattern-based searches create a number of false positives. With a pattern-based search, analysts use a behavior profile to determine if someone could be a terrorist or other kind of criminal.

According to Citron and Pasquale, 53 political activists, including two nuns and a local political candidate, were flagged as suspected terrorists in a Maryland/District of Columbia database for their involvement in human rights groups and as peace activists and death penalty opponents.


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