Systematic government access to private-sector data in the United States

Pell, Stephanie K.

Systematic government access to private-sector data in the United States

Date

2012

Authors

Pell, Stephanie K.

Publisher

International Data Privacy Law

Abstract

After the September 11 (9/11) attacks, law enforcement's mission expanded to include, at times even prioritize, the general ‘prevention, deterrence and disruption’ of terrorist attacks, which presumed a new emphasis upon threat detection and identification by analyzing patterns in larger, less specific bodies of information. Moreover, after 9/11, law enforcement was integrated into a much larger intelligence gathering operation directed at ‘connecting the dots’ proactively, in order to avert the next terrorist attack. This new focus, spread across a broad range of federal and state agencies, has created a voracious appetite for information—data found most often in the possession of industry, given consumer use of new technologies to facilitate personal, social, business, and economic transactions. Indeed, the unprecedented level of ‘third-party’ possession of information inevitably makes the private sector the most reliable and comprehensive source of information available to law enforcement and intelligence agencies alike. Notwithstanding the impacts on business costs or innovation—whether for a criminal or intelligence terrorism matter or more traditional crimes where perpetrators leave electronic fingerprints with a host of third parties—there is an expectation by law enforcement, intelligence agencies, and even legislators that industry third parties will facilitate real time government access to data when needed, and that these data will be in possession of the relevant private entities if and when a government agency realizes their potential investigative value. This paper will explore the potential applications of systematic government access to data held by third-party private-sector intermediaries that would not be considered public information sources but, rather, data generated based on the role these intermediaries play in facilitating economic and business transactions (including personal business, such as buying groceries or staying at a hotel on vacation).

Keywords

Intelligence gathering, Data protection

Citation

Cite Stephanie K. Pell, Systematic government access to private-sector data in the United States, International Data Privacy Law, Volume 2, Issue 4, November 2012, Pages 245–254, https://doi.org/10.1093/idpl/ips020