Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms

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1 NELLCO NELLCO Legal Scholarship Repository New York University Public Law and Legal Theory Working Papers New York University School of Law Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms Kate Crawford Microsoft Research; MIT Centre for Civic Media; NYU Information Law Institute, Jason M. Schultz NYU School of Law, Follow this and additional works at: Part of the Computer Law Commons, Consumer Protection Law Commons, and the Science and Technology Commons Recommended Citation Crawford, Kate and Schultz, Jason M., "Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms" (2013). New York University Public Law and Legal Theory Working Papers. Paper This Article is brought to you for free and open access by the New York University School of Law at NELLCO Legal Scholarship Repository. It has been accepted for inclusion in New York University Public Law and Legal Theory Working Papers by an authorized administrator of NELLCO Legal Scholarship Repository. For more information, please contact

2 BIG DATA AND DUE PROCESS: TOWARD A FRAMEWORK TO REDRESS PREDICTIVE PRIVACY HARMS Abstract:

3 Boston College Law Review New York Times See, e.g.the Philosophy of Data Strata 2013 Is a Wrap archived at Yes, Big Data Can Solve Real World Problems archived at See Information Privacy in the Cloud See Big Brother Gets a Makeover: Behavioral Targeting and the Third-Party Doctrine SeeBig Data: The End of Privacy or a New Beginning? Seeid. Privacy in the Age of Big Data: A Time for Big Decisions archived at Psst, You in Aisle 5 Id

4 Using Procedural Due Process to Redress Big Data s Privacy Harms What Is Big Data and Why All the Hype? Knowledge is invariably a matter of degree: you cannot put your finger upon even the simplest datum and say this we know. In the growth and construction of the world we live in, there is no one stage, and no one aspect, which you can take as the foundation. Id. See infra See infra See infra See infra See infra

5 Boston College Law Review Big Data s Predictive Privacy Harms See Big Data for All: Privacy and User Control in the Age of Analytics See Critical Questions for Big Data: Provocations for a Cultural, Technological, and Scholarly Phenomenon Id. Id. Id. Id. SeeProtecting Patient Privacy in the Age of Big Data archived at supra See Eight Problems with Big Data archived at See infra infra

6 Using Procedural Due Process to Redress Big Data s Privacy Harms See In Sickness, Health, and Cyberspace: Protecting the Security of Electronic Private Health Information see also Big Data Proxies and Health Privacy Exceptionalism available at archived at See Report Finds Correlation Between Health Data Breaches, Fraud Cases archived at supra Id. See Your Health Records: About Blue Button archived at See supra See Dependence on Cyberscribes Issues in e-security Health Sector Braces for Wide Impact of the New HITECH Omnibus Rule supra

7 Boston College Law Review imagining New York Times Id. Id. Seesupra See Quantified Self: Self Knowledge Through Numbers archived at See About Us archived at Counting Every Moment archived at Seegenerally The PII Problem: Privacy and a New Concept of Personally Identifiable Information supra Id. Id. Id. Id.see infra

8 Using Procedural Due Process to Redress Big Data s Privacy Harms impossible supra See generally Robust De-Anonymization of Large Sparse Datasets Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization Sample Complexity Bounds for Differentially Private Learning Id. See infra See Id.

9 Boston College Law Review Id. See id. See Saving Fair Housing on the Internet: The Case for Amending the Communications Decency Act See generally See generally, e.g. See generally Seegenerally Big Data in Small Hands archived at Private Traits and Attributes Are Predictable from Digital Records of Human Behavior

10 Using Procedural Due Process to Redress Big Data s Privacy Harms See The Rich See a Different Internet Than the Poor archived at Cf.Big Data Is Our Generation s Civil Rights Issue, and We Don t Know It archived at Followup on Big Data and Civil Rights archived at See supra See supra See It s Not Privacy, and It s Not Fair archived at Prediction, Preemption, Presumption: How Big Data Threatens Big Picture Privacy archived at

11 Boston College Law Review supra Id. Id. The Personalized Medicine Revolution Is Almost Here archived at 30 Million Investment in Health Research Centre to Tackle Major Diseases see also supra Meaningful Use of Health IT Stage 2: The Broader Meaning archived at How to Use 23andMe Without Giving Up Your Genetic Privacy archived at See generally archived at archived at

12 Using Procedural Due Process to Redress Big Data s Privacy Harms supra see supra Id. See Predictive Policing: Using Technology to Reduce Crime archived at Id. Cf.Unique in the Crowd: The Privacy Bounds of Human Mobility archived at Predictive Policing and Reasonable Suspicion supra

13 Boston College Law Review United States v. Jones watching and collecting generate See id. See id The Right to Quantitative Privacy Id Id.

14 Using Procedural Due Process to Redress Big Data s Privacy Harms Jones and Jones Cf. id. supra See generally The Memory Gap in Surveillance Law How Big Data Could Help Identify the Next Felon or Blame the Wrong Guy archived at Id Id. Id. See SeeClean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders See, e.g.jones supra

15 Boston College Law Review Predictive Privacy Harms Threaten to Marginalize Traditional Privacy Protections A Taxonomy of Privacy See amended by See supra supra

16 Using Procedural Due Process to Redress Big Data s Privacy Harms supra See supra supra See archived at available at archived at see available at archived at available at archived at

17 Boston College Law Review Id. See, e.g.supra Big Data News Roundup: Correlation vs. Causation archived at Seesupra supra See supraacxiom Lets Consumers See Data It Collects supra Id. See id. See, e.g. It s About Time: Privacy, Information Life Cycles, and the Right to Be Forgotten The Right to Be Forgotten

18 Using Procedural Due Process to Redress Big Data s Privacy Harms The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. archived at Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation) available at archived at SeeBig Data, Trying to Build Better Workers

19 Boston College Law Review The Historical Role of Due Process The One and Only Substantive Due Process Clause SeeInformation Lost and Found Id. see also reprinted in see also Id. Id See supra

20 Using Procedural Due Process to Redress Big Data s Privacy Harms Procedural Due Process in the Courts Mathews v. Eldridge Goldberg Id. See See Intellectual Privacy The Right to Privacy Seesupra Id. Perspectives on the Fourth Amendment See

21 Boston College Law Review v. Kelly Goldberg Goldberg Mathews Goldberg Id. Id Id. Id. IdMcGrath Id. Id See id. Goldberg Goldberg Id. Id. Id. Id.

22 Using Procedural Due Process to Redress Big Data s Privacy Harms Mathews Goldberg Mathews Mathews Compareid. withgoldberg Id See id. Id. Id See, e.g. HamdiLoudermill

23 Boston College Law Review Some Kind of Hearing Mathews Greene v. McElroy Greene Some Kind of Hearingpassim Id. Id. Id. Id. Id. Perry v. Sindermann supra See supra Compare with Technological Due Process

24 Using Procedural Due Process to Redress Big Data s Privacy Harms Greene supra Compare with supra See supra See supra McGrath Id. Id. Id.

25 Boston College Law Review Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id.

26 Using Procedural Due Process to Redress Big Data s Privacy Harms See supra See supra Id. Seesupra Id. Id.

27 Boston College Law Review The Underlying Values of Due Process Id. See supra Adjudicatory Independence and the Values of Procedural Due Process Id. See id.

28 Using Procedural Due Process to Redress Big Data s Privacy Harms Id. Id. Id. Id. Id. see supra Id. See, e.g. When Google Got Flu Wrong The Hidden Biases in Big Data archived at See generallynetworks of Governance: Users, Platforms, and the Challenges of Networked Media Regulation Id. Voice, Control, and Belonging: The Double-Edged Sword of Procedural Justice

29 Boston College Law Review Due Process as Separation of Powers and Systems Management supra See suprathink Again: Big Data archived at Due Process as Separation of Power Id. Id

30 Using Procedural Due Process to Redress Big Data s Privacy Harms Technological Due Process: The Citron Analysis Technological Due Process seesupra See, e.g. supra Some Confusion About Due Process, Judicial Review, and Constitutional Remedies The Management Side of Due Process: Some Theoretical and Litigation Notes on the Assurance of Accuracy, Fairness, and Timeliness in the Adjudication of Social Welfare Claims supra See, e.g. supra Prediction, Pre-emption, Presumption: The Path of Law After the Computational Turnin Data Matching, Data Mining, and Due Process Transparent Predictions

31 Boston College Law Review supra Id. Id. Id. Id. Id. Id. Id.see also supra supra Id.

32 Using Procedural Due Process to Redress Big Data s Privacy Harms Mathews Mathews Id.Mathews v. Eldridge Id. Id. Id. Id. Id. Id. Id.

33 Boston College Law Review Procedural Data Due Process Id. id. at Id. Seesuprasuprasee also supra

34 Using Procedural Due Process to Redress Big Data s Privacy Harms See See, e.g. Meet a Start-Up With a Big Data Approach to Hiring archived at Meet the New Boss: Big Data archived at See, e.g

35 Boston College Law Review See supra supra see also Propositions of Modernisation archived at

36 Using Procedural Due Process to Redress Big Data s Privacy Harms See archived at supra

37 Boston College Law Review Seesupra See supra

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