Conceptualizations of Constitutional Privacy and Their Implications in Federal Dataveillance Public Deposited

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  • March 20, 2019
  • Kuhn, Martin
    • Affiliation: Hussman School of Journalism and Media
  • The federal government's use of new data technologies, specifically knowledge discovery in databases (KDD) applications, in counterterrorism efforts presents a serious challenge to existing constitutional privacy protections. The purpose of this dissertation is to explore whether this use of KDD technology infringes upon a constitutional right to information privacy. A broad discussion of how the constitutional right to privacy in general and information privacy in particular has been conceptualized by the courts is presented. Following a review of privacy scholarship, traditional legal case analysis is used to identify privacy conceptualizations in three types of privacy cases: U.S. Supreme Court First Amendment anonymous speech and association cases, Fourth Amendment privacy cases, and those Supreme Court and U.S. Circuit Courts of Appeal cases involving information privacy claims. Five conceptualizations of privacy are discussed. Three were found in the privacy scholarship: privacy as space, privacy as secrecy, and privacy as information control. The analysis of U.S. Supreme Court and U.S. Circuit Courts of Appeal information privacy cases reveals a newly emerging conceptualization of privacy, privacy as confidentiality. Under this conceptualization, individuals are empowered to compel government to safeguard the personal information it has forced them to surrender and to hold state actors responsible for knowing which constitutional information privacy interests are clearly established. This is a significant departure from the first three conceptualizations because the responsibility for protecting personal information resides with the government rather than the individuals to whom the information belongs. The most significant finding presented in this dissertation is that none of these four conceptualizations are sufficient to protect privacy against KDD dataveillance. Since these applications create new knowledge rather than access and manipulate existing information, a new conceptualization, privacy as knowledge control, is needed. Should the courts adopt and vigorously apply a privacy-as-knowledge-control conceptualization of privacy, individuals will have the right to be informed that new information regarding them has been created, that the government has information safeguards in place to protect this new knowledge, and that they have the right to challenge the government on constitutional grounds regarding the use of the discovered knowledge.
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  • Packer, Cathy Lee
  • Open access

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