"MINE YOUR OWN BUSINESS!": MAKING THE CASE FOR THE IMPLICATIONS OF THE DATA MINING OF PERSONAL INFORMATION IN THE FORUM OF PUBLIC OPINION

Yale Journal of Law and Technology Volume 5 Issue 1 Yale Journal of Law and Technology Article 1 2003 "MINE YOUR OWN BUSINESS!": MAKING THE CASE FOR THE IMPLICATIONS OF THE DATA MINING OF PERSONAL INFORMATION IN THE FORUM OF PUBLIC OPINION TAL Z. ZARSKY Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation TAL Z. ZARSKY, "MINE YOUR OWN BUSINESS!": MAKING THE CASE FOR THE IMPLICATIONS OF THE DATA MINING OF PERSONAL INFORMATION IN THE FORUM OF PUBLIC OPINION, 5 Yale J.L. & Tech (2003). Available at: https://digitalcommons.law.yale.edu/yjolt/vol5/iss1/1 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . ZARSKY: "MINE YOUR OWN BUSINESS!" ARTICLE "MINE YOUR OWN BUSINESS!": MAKING THE CASE FOR THE IMPLICATIONS OF THE DATA MINING OF PERSONAL INFORMATION IN THE FORUM OF PUBLIC OPINION TAL Z. ZARSKY* I. II. INTRODUCTION ..................................................................... 2 A TECHNICAL DESCRIPTION OF THE DATA MINING PROCESS ..... 6 A. A BRIEF INTRODUCTION TO DATA MINING .......................... 6 B. DATA WAREHOUSING AND DATA CLEANSING ..................... 7 C. DATA MINING: METHODS AND PRACTICES ....................... 9 1. C LU STERIN G ..................................................................... 9 2. A SSOCIATION R ULES .......................................................... 11 (a) ASSOCIATION DISCOVERY ......................................... 12 (b) SEQUENTIAL PATTERN DISCOVERY ......................... 13 (c) SIMILAR TIME SEQUENCE DISCOVERY .................... 14 3. THE NEXT STEPS IN THE KDD PROCESS ......................... 15 D. FINAL POINTS AND INTERNET APPLICATIONS .................... 16 III. THE SOCIAL IMPACT OF THE DATA MINING PRACTICES .......... 18 A. G ENERAL OVERVIEW ........................................................ 18 B. D ISCRIM IN ATION .............................................................. 22 C. MANIPULATION AND THREATS TO AUTONOMY ................. 35 1. EFFECTS ON THE INDIVIDUAL ......................................... 38 2. EFFECTS ON SOCIETY ...................................................... 40 D . A BUSE & M ISUSE ........................................................... 44 E. SECLU SION ...................................................................... 45 F. "THE TRAGEDY OF ERRORS" .......................................... 47 IV. DATA MINING AND PUBLIC OPINION ................................... 50 A. PREFACE AND NOTE OF CAUTION ..................................... 50 B. THE DATA MINING CAMPAIGN ...................................... 53 V. C ON CLUSION ....................................................................... 55 * J.S.D Candidate, Columbia Law School. The author would like to thank Eben Moglen, Lance Liebman, Paul Schwartz, and the members of the 2002 J.S.D Candidate workshop. The author also thanks Yochai Benkler and Eli Noam for providing additional insight and assistance regarding this paper. A prior version of this Article was presented at the 2002 S.J.D/J.S.D Conference at Harvard Law School. Published by Yale Law School Legal Scholarship Repository, 2003 1 Yale Journal of Law and Technology, Vol. 5 [2003], Iss. 1, Art. 1 YALE JOURNAL OF LAW & TECHNOLOGY 2002-2003 "MINE YOUR OWN BUSINESS!": MAKING THE CASE FOR THE IMPLICATIONS OF THE DATA MINING OF PERSONAL INFORMATION IN THE FORUM OF PUBLIC OPINION TAL Z. ZARSKY* Today's world of constant surveillance and data collection allows for the gathering of vast amounts of personal information. In this reality, sophistication in the analysis of information is key. Data mining is probably the information collectors' only hope to close the sophisticationgap, yet the use of advanced means of analysis is certain to impact individuals and society in various ways. This Article addresses the use of data mining applications in analyzing personal information and its impact upon society. It begins with a description of current data mining practicesfrom a technical point of view, a perspective often overlooked in legal scholarship. The Article next describes the currentprivacy debate, highlightingthe issues most relevant to the new reality data mining creates. Among others, it addresses issues such as discrimination, threats to autonomy, misuse of data and the consequences of erroneous information. The analysis isfacilitated by several concrete "hypotheticals" that address some of the otherwise abstractconcepts this debate presents in simple terms. The author asserts that in view of data mining tools, some traditional claims of privacy are rendered trivial or obsolete, while others are ofparticular importance. After focusing on the role of public opinion, the Article concludes by outlining a public opinion campaign which may prove useful in finding solutions to the legalproblems data mining tools create. I. INTRODUCTION "Know what is above you: a watchful Eye, an attentive Ear,and allyour deeds are recordedin a Book." (Values of our Fathers 11,1)1 "We are all being surveyed. All the time. Even though it is not apparent to consumers shopping virtually online via e-commerce, purchasing in 'real world' supermarkets, or carrying out other mundane activities and transactions, our actions are being watched * J.S.D Candidate, Columbia Law School. The author would like to thank Eben Moglen, Lance Liebman, Paul Schwartz, and the members of the 2002 J.S.D Candidate workshop. The author also thanks Yochai Benkler and Eli Noam for providing additional insight and assistance regarding this paper. A prior version of this Article was presented at the 2002 S.J.D/J.S.D Conference at Harvard Law School. 1 THE COMPLETE ARTSCROLL SIDDUR 551 (1994). https://digitalcommons.law.yale.edu/yjolt/vol5/iss1/1 2 ZARSKY: "MINE YOUR OWN BUSINESS!" T. ZARSKY MINE YOUR OWN BUSINESS! and examined." This mantra has been gaining popularity in recent literature concerning sociology, Internet law, and other social sciences. "The Death of Privacy" has been a recurring headline in many magazines and periodicals, bleakly portraying the manner in which modern society is closely watched and scrutinized. In short, surveillance has become the issue of the hour and "Big Brother" is back in vogue. Mere surveillance, however, is not grounds for concern, at least not on its own. The fact that there are an eye watching and an ear listening is meaningless unless the collected information is recorded and analyzed. Recording is easy. In the world of large corporations and with the use of today's high technology, nothing needs to be forgotten or lost in oblivion. Memory is c (...truncated)