Big Data as a National Security Issue

University of Chicago Legal Forum Volume 2024 Article 9 2025 Big Data as a National Security Issue Paul B. Stephan III Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Stephan, Paul B. III (2025) "Big Data as a National Security Issue," University of Chicago Legal Forum: Vol. 2024, Article 9. Available at: https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/9 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . Big Data as a National Security Issue Paul B. Stephant ABSTRACT Modern enhancements of data mining have unfolded in a legal near-vacuum. No extant legal system adequately specifies the property rights in the information elements that make up big data. The miners rely on their technicalability to gather and exploit, without waiting to confirm their entitlement to do so. Innovatorshave tolerated the legal vacuum because, as a practicalmatter, most potentially valuable information is accessible. Information by its nature implies a sender and a recipient. This sharingrelationshipnecessarily complicates ownership, in particular the power to exclude. At the same time, the capacities that the mining of big data empowers are sufficiently novel to fall outside the scope of traditionalregulatory regimes, including those focused on nationalsecurity. This Article considers the nationalsecurity implications of this legal vacuum. It conceives of instances of big data as emergent systems. It argues that the potential benefits and risks of big data demandproperty rules that optimize the value of data systems, accountingfor potential risks as well as benefits, while safeguarding the interestsofpersons who originateinformation. The key insight is to distinguish big data as an emergent entity from the countless events that constitute collectable information. The distinction allows us to think separately about the propertyentitlements and regulatory constraints attributableto the elements and the systems. This analyticalstep in turn clarifies which legal approachesmay advance national security interests consistent with other values and commitments. I. INTRODUCTION Over the course of the past quarter-century, big data has gained profound economic and national security significance. It is a necessary predicate for a wide range of essential managerial functions as well as t John C. Jeffries, Jr., Distinguished Professor of Lawand Senior Fellow, Miller Center of Public Affairs, University of Virginia. I am grateful to Stewart A. Baker, Ashley S. Deeks, and Kristen Eichensehr for comments and criticism, and to the editors of The University of Chicago Legal Forum for their thoughtful and helpful suggestions. Responsibility for errors, blunders, and misjudgments remains mine alone. My work as Special Counsel to the General Counsel of the U.S. Department of Defense encompassed some of the issues I discuss here, but I do not rely on or otherwise make use of any privileged or classified information that came my way. The views found here are entirely my own and should not be attributed to the U.S. government or the Department of Defense. 307 808 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2024 predictive analysis. It supports advanced cyber operations by enhancing hacking (cyber penetration of and interference with data sets) as well as cyber defense. It forms the backbone of most states' projects to shape the world to their interests (projecting power) and to defend those interests in a world where adversaries strive to acquire and exploit their own big data resources. Increasingly ubiquitous artificial intelligence (AI) tools count as the most recent breakthrough in big-data-dependent information processing. 1 Al represents, however, only a jazzier variant of a general long-term practice, the mining of vast stores of information to detect patterns and derive predictions. 2 Data mining, carried out by searchand-classify algorithms that update and reconfigure themselves autonomously, allows people to extract meaning and value from amassed information for myriad benign purposes. At the same time, it offers many opportunities for abuse. It can pollute the information environment with deep fakes and other lies, drive hyper-surveillance that degrades individual autonomy and privacy, and promote risky choices, whether financial or military. 3 It also provides better means to disrupt and destroy the information-based capacities of others. 4 Modern enhancements of data mining have unfolded in a legal near-vacuum. No extant legal system adequately specifies the property rights in the information elements that make up big data. 5 The datacollectors and miners rely on their technical ability to gather and exploit, without waiting to confirm their entitlement to do so. They have proceeded in the face of the legal vacuum because, as a practical matter, most potentially valuable information is accessible, in the sense that it does not lie behind effective barriers. Information by its nature implies See MUSTAFA SULEYMAN & MICHAEL BHASKAR, THE COMING WAVE: TECHNOLOGY, POWER AND THE 21ST CENTURY'S GREATEST DILEMMA 16-19 (2023); cf. Dep't of Defense, Executive Summary: DoD Data Strategy, Unleashing Data to Advance the National Defense Strategy 4 (2020), https://media.defense.gov/2020/Oct/08/2002514180/-1/-1/0/DOD-DATASTRATEGY.PDF [https://perma.cc/Q2BW-9QCA] ("Artificial intelligence ... is long-term data competency grounded in high-quality training-quality datasets ... that are the pieces of information and associated labels used to build algorithmic models."). 2 See KAI-FU LEE, Al SUPERPOWERS: CHINA, SILICON VALLEY, AND THE NEW WORLD ORDER 14, 104-12 (2018); VIKTOR MAYER-SCHONBERGER & KENNETH CUKIER, BIG DATA: A REVOLUTION THAT WILL TRANSFORM HOW WE LIVE, WORK, AND THINK 6-7 (2014). a See PAUL B. STEPHAN, THE WORLD CRISIS AND INTERNATIONAL LAW: THE KNOWLEDGE ECONOMY AND THE BATTLE FOR THE FUTURE 276-77 (2023). 4 See Paul B. Stephan, Big Dataand the Future Law of Armed Conflict in Cyberspace, in THE FUTURE LAW OF ARMED CONFLICT 61-62 (Matthew C. Waxman & Thomas W. Oakley eds., 2022). e Admirers of the European Union (EU) would beg to differ, arguing that it has developed within its own legal system rules that will dominate international practice. See ANU BRADFORD, DIGITAL EMPIRES: THE GLOBAL BATTLE TO REGULATE TECHNOLOGY 105-45 (2023). Pessimism about the resilience of the EU undercuts that assertion; see also STEPHAN, supra note 3, at 83, 87- 89. 807] BIG DATA AS A NATIONAL SECURITYISSUE 809 a sender and a recipient. 6 This sharing relationship complicates ownership by requiring stakeholders to consent to any rule of exclusion. Absent agreement, the general default is open access. At the same time, the capacities that the mining of bi (...truncated)