How did you stumble across this Note, and what does that say about you? What words you queried, how quickly you typed them, the web-sites you recently visited, and your current geographic location are all useful data points that can be aggregated to form an informative picture of who you are and what you have done.
Companies such as Google collect this data because it can be analyzed for patterns that can predict your future acts. This predictive ability is useful to both a salesman predicting when you might purchase your next pair of shoes, as well as an FBI agent predicting when you may perform your next act of terrorism. By collecting vast amounts of data, commonly referred to as “big data,” predictions can be exponentially more accurate than ever before. In addition to predicting what you may do, analyzing big data allows for a more detailed depiction of what you have already done. It is this backwards-looking feature of big data that this Note will address.
When government investigators request data from companies such as Google, they obtain data on targeted individuals with a guarantee that the data has been collected, stored, and analyzed properly. These guarantees constitute a testimonial statement under the Confrontation Clause. Similar to lab analysts who submit test results of cocaine samples or blood alcohol levels, this Note argues that analysts involved with the collection, storage, and analysis of big data must be available for confrontation under the Sixth Amendment. At least one federal appeals court has adopted a similar view.
In addressing the constitutionality of modern government surveil-lance, this Note examines a growing problem. Much of the contemporary academic debate regarding the constitutionality of government surveillance focuses on the President’s Article II authority and the Fourth Amendment. Missing from this literature is a detailed discussion of the Confrontation Clause. This Note fills that void by examining the usefulness of the Confrontation Clause in addressing mass data collection by the government.
The usefulness of the Confrontation Clause becomes apparent when one considers the finite ability of the Fourth Amendment to address government data collection. Every federal appeals court to address the issue has found that the President possesses the inherent authority to collect data for foreign intelligence purposes without a warrant. The President’s authority to collect data, however, does not provide the government with unfettered authority to use the data in a criminal proceeding against a defendant. When data is presented at trial against a criminal defendant, the Confrontation Clause is implicated, and the clause’s ability to act as a check on government surveillance comes in-to focus. This flexible check on government surveillance can be attained through the application of contemporary Supreme Court Confrontation Clause doctrine.
Many scholars, however, are hesitant to extend the Supreme Court’s contemporary Confrontation Clause doctrine. This Note addresses their concerns, and explains why the common objections to extending current doctrine do not apply to big data transfers. Moreover, the Supreme Court’s recent decision in Riley v. California provides additional support for treating big data as unique.
In Part I, this Note will provide an introduction to big data and the legal authority for its collection by government investigators. Part II will explain the Supreme Court’s contemporary Confrontation Clause doc-trine. Part III will present the argument that the Confrontation Clause of the Sixth Amendment applies to big data transfers under two independent theories: one theory dealing with individual pieces or small collections of data, and another theory dealing with a novel application of the Mosaic Theory. Part IV will describe Google’s procedures for answering government requests for data, and will outline the small number of Google employees that would be required for confrontation.
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