Recent surveys show that big data has a firm grasp on the imagination of marketers and business managers searching for new customer behaviors to exploit, and efficiency experts looking for waste to eliminate. They also show there are plenty of big-data opponents who see it not as a tool to improve corporate efficiency, but as the latest technology to be misused.
Depending on how new laws settle out, companies who engage in some big-data marketing practices--particularly data harvesting--could face unwelcome legal consequences.
For instance, big data analysis is partially replacing traditional methods of surveillance. However, few rules have been established that draw a clear line between legitimate research and the invasion of personal privacy or espionage against other companies. Not many companies have advanced to the point in use of big data to try legal boundaries. Many government agencies, on the other hand--especially military and law-enforcement groups--are already taking advantage of surveillance, whether it eventually proves to be legal or not.
A story in the Wall Street Journal on Friday identified 20 different ways various U.S. government or law-enforcement agencies can or do monitor the activity of individual Americans. They do it mostly by recording activities--those both illegal and innocent--then cross-referencing clues in the recordings to identify who was doing what. Face recognition has improved to the point that law-enforcement agencies can use it to put names to otherwise-anonymous faces found in snapshots, photos posted online or gathered en masse to watch the (2007) Super Bowl.
[ Related: Big Data Working Group To Tackle Security. ]
Face recognition is so useful as an identification tool, in fact, that New Jersey won't issue a driver's license if the photo attached to it shows the owner smiling, which makes automated identification more difficult. Another example: cameras that are able to scan the license plates of passing cars. The software program checks the plates against databases of outstanding warrants or license suspensions. The cameras are already being put in place by local police as well as federal agencies, according to the Journal.
Members of Congress have filed a variety of bills--some opposing, and others supporting--various new forms of surveillance. These bills are expected to eventually define which practices are legal, which are legal with a warrant from a federal court, and which should always be illegal. The FTC is investigating when and how facial recognition could violate rules limiting police powers of search and seizure or the privacy of citizens, so far without definitive result.
The FBI sees facial recognition as so huge a benefit it plans to spend more than $1 billion on a surveillance program called the Next Generation Identification (NGI) initiative, according to the Electronic Frontier Foundation (EFF), which participated in an enormous Freedom of Information Act (FOIA)-driven investigation of the project last year. NGI, most of which the FBI writes about openly on its website, would reportedly include the installation of cameras along interstate highways where they could scan the faces of hundreds of thousands of passing motorists in an effort to spot wanted felons.
In addition, NGI will store fingerprints, text data, iris scans, palm prints, voice data and a host of other data points from both FBI and Dept. of Homeland Security files, as well as from civilian agencies and even non-government sources, such as the state bar applications of new attorneys, and background checks conducted by both government and civilian organizations on teachers, scout leaders, and prospective employees.
Eventually there could be as many as 12 million "searchable front photos" within the bureau's database, which could be searched freely by FBI staff or local police forces, according to the EFF. The goal, according to a 2010 presentation given to members of Congress by FBI facial-recognition expert Richard Vorder Bruegge, is to "identify subjects in public datasets" and "conduct automated surveillance at lookout locations." Some retail organizations want the same ability--to spot known shoplifters, confused but honest shoppers, or those who frequent a particular store but manage to keep themselves off growing lists of frequent shoppers, according to Time.
Meanwhile, last week the ACLU published results of an investigation in which it discovered the Justice Department boosted the number of social-network messages and emails it intercepts 80% between 2010 and 2011 as part of a large-scale effort at passive digital surveillance.
Such warrantless surveillance of social networks and other digital media might eventually face Constitutional tests, if the ACLU, EFF, World Privacy Organization, and other civil-rights groups that oppose it take their arguments to court. Bills such as the Child Care Protection Act of 2011, CARE for Kids Act of 2012, the Passport Identity Verification Act, and others all are designed to limit federal power, protect individual privacy, and apply due legal process to the digital surveillance process, according to the Criminal Justice Information Services Advisory Policy Board's 2011 annual report.
A definitive decision might be put off while agencies conducting the surveillance struggle with questions about how to do it properly, according to Vorder Bruegg'e's report.
FTC's Look At Data Harvesting
The Federal Trade Commission is investigating the implications of large-scale harvesting of customer data. In addition, it has proposed changes that would expand existing protections for children's sites to include those published for adults. The American Civil Liberties Union opposes such expanded protection for adults. Rules such as the Child Online Protection Act and Children's Online Privacy Protection Act (COPPA) were designed to protect children, not adults. Adults' access to information could be illegally curtailed by applying artificially strict rules to sites for grownups, says the ACLU.
Members of the public--and of the federal bench, Congress, and even law-enforcement agencies--are nervous about the potential invasion of privacy made possible by big-data information-gathering techniques, according to a September report to Congress from the Congressional Research Service about the potential of drones as domestic surveillance platforms.
As big data is showing us, though, drones might not be not our biggest immediate privacy intrusion concern. At issue is what it actually means to be "in public"--a concept that remained largely unchanged for thousands of years until Facebook and Twitter added virtual presence as a complicating factor. It's perfectly legal to overhear someone else's conversation on the subway, or take pictures of anything visible from the point where a photographer stands in a public place. It's not at all clear when or if the Facebook or Twitter feeds of Julian Assange or Anonymous should be considered semi-private communications that police need a warrant to read, or if they are the digital equivalent of messages publicly uttered or posted on a wall.
"While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places and perhaps even less in areas immediately outside the home, such as in driveways or backyards," the Congressional Research Service report concluded. "Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people's expectations of privacy evolve."
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