Outsourcing, Data Insourcing, and the Irrelevant Constitution

Abstract

Long before revelations of the National Security Agency\u27s data collection programs grabbed headlines, scholars and the press decried the burgeoning harms to privacy that metadata mining and new surveillance technologies present. Through publicly accessible social media sites, web-tracking technologies, private data mining consolidators, and its own databases, the government is just a mouse click away from a wealth of intimate personal information that was virtually inaccessible only a decade ago. At the heart of the conundrum is the government\u27s ability to source an unprecedented amount of personal data from private third parties. This trail of digital information is being insourced into government coffers with no constitutional accountability-much like governmental powers are being outsourced to private contractors without constitutional restraint. These phenomena reveal a troubling trend: the diminishment of the Constitution\u27s relevance when the government works in tandem with third parties. Outmoded Fourth Amendment doctrine offers no pathway around this problem. Nor has legislation kept apace with technological advancements to forestall abuses before they occur. Moreover, the primary theories for challenging the private exercise of public power-the private delegation and state action doctrines-rarely persuade modern courts. Rather than focusing on the privacy aspects of big data, this Article proceeds from the standpoint of the structural Constitution, and reframes existing doctrines for rendering the government constitutionally accountable for actions taken through a third party, on the theory that exclusive reliance on the political branches for the protection of individual privacy rights in the age of big data is insufficient