Government Data Mining and the Fourth Amendment
The author would like to thank participants in workshops at Stanford Law School and Florida Law School for their feedback on the content of this article, and Victoria Ianni for her research assistance. This paper is a version of a talk given at The University of Chicago Law School’s Surveillance Symposium, June 15–16, 2007.
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The government’s ability to obtain and analyze recorded information about its citizens through the process known as data mining has expanded enormously over the past decade. Since at least the mid1990s, the quantity of the world’s recorded data has doubled every year. At the same time, the computing power necessary to store, access, and analyze these data has increased geometrically, at increasingly cheaper cost. Governments that want to know about their subjects would be foolish not to take advantage of this situation, and federal and state bodies in this country have done so with alacrity.
The authors share credit and responsibility for this Article equally. The authors are grateful to Maureen Brady, Morgan Cloud, Mailyn Fidler, Barry Friedman, Ben Grunwald, Alma Magaña, and Stewart Sterk, along with participants in the Cardozo Junior Faculty Workshop for helpful conversations, suggestions, comments, and critiques. Michael Pollack thanks the Stephen B. Siegel Program in Real Estate Law for research support.
The authors share credit and responsibility for this Article equally. The authors are grateful to Maureen Brady, Morgan Cloud, Mailyn Fidler, Barry Friedman, Ben Grunwald, Alma Magaña, and Stewart Sterk, along with participants in the Cardozo Junior Faculty Workshop for helpful conversations, suggestions, comments, and critiques. Michael Pollack thanks the Stephen B. Siegel Program in Real Estate Law for research support.
The canonical test for Fourth Amendment searches looks to whether the government has violated a person’s reasonable expectation of privacy. Yet the Supreme Court has recently added a property-based test to address cases involving physical intrusions. Further, influential judges and scholars have proposed relying primarily on property in determining the Fourth Amendment’s scope. This Article exposes the overlooked flaws of a property-centered Fourth Amendment. It examines the complications of property law, explores the malleability of property rights, and reveals how governments can manipulate them. Normatively, Fourth Amendment regimes based on property are likely to be underinclusive and grounded in trivial physical contact while ignoring greater intrusions. Finally, because property is unequally distributed, its use as a determinant of Fourth Amendment protections risks leaving disadvantaged members of society with the least protection. While property concepts will sometimes be relevant, they should be used very carefully, and very little, in Fourth Amendment law.
Thanks to Uven Chong for research assistance. Anu Bradford offered gracious, insightful, and generous comments on a draft that strikes to be fair, if critical, of her work. For her careful engagement, I am respectfully and deeply grateful. Editors of the University of Chicago Law Review, including Helen Zhao, Daniella Apodaca, and Nathan Hensley, did excellent work on the text.
Contemporary regulation of new digital technologies by nation-states unfolds under a darkening shadow of geopolitical competition. Three recent monographs offer illuminating and complementary maps of these geopolitical conflicts. Folding together insights from all three books opens up a new, more perspicacious understanding of geopolitical dynamics. This perspective, informed by all three books under consideration here, suggests grounds for skepticism about the emergence of a deep regulatory equilibrium centered on the emerging slate of European laws. The area of overlap will be strictly limited to less important questions by growing bipolar geostrategic conflict between the United States and China. Ambitions for global regulatory convergence when it comes to new digital technology, therefore, should be modest.
The author wishes to thank Abdi Aidid, Ben Alarie, Francesco Ducci, Anthony Niblett, Tom Ross, and Michael Trebilcock and participants at the How AI Will Change the Law Symposium at the University of Chicago for helpful comments and conversations.
This Essay focuses largely on structural responses to AI pricing in antitrust, outlining the bulk of its argument in the context of merger law but also considers monopolization law and exclusionary conduct. It argues that the relationship between the strictness of the law and the sophistication of AI pricing is not straightforward. In the short run, a stricter approach to merger review might well make sense, but as AI pricing becomes more sophisticated, merger policy ought to become less strict: if anticompetitive outcomes are inevitable with or without a merger because of highly sophisticated AI pricing, antitrust interventions to stop mergers will not affect pricing and instead will create social losses by impeding efficient acquisitions. This Essay considers similar questions in the context of monopolization. It concludes by observing that the rise of AI pricing will strengthen the case for antitrust law to shift its focus away from high prices and static allocative inefficiency and toward innovation and dynamic efficiency.