surveillance is distinct from general date collection
Joh 14 Elizabeth E. Joh, Professor of Law, U.C. Davis School of Law Washington Law Review March, 2014 89 Wash. L. Rev. 35 ARTIFICIAL INTELLIGENCE AND THE LAW: ESSAY: POLICING BY NUMBERS: BIG DATA AND THE FOURTH AMENDMENT lexis
Not only is the quantity of information collected in the big data context far greater, the very nature of surveillance itself is different. If conventional surveillance involves the intentional tracking of one or a few suspects by actual police officers, what happens when a person "emerges" as a surveillance target as a result of a computer analysis? In the traditional surveillance context, the police have not been constrained by the Fourth Amendment so long as their investigations neither interfered with an individual's movements, nor ranged beyond public spaces. n168 As the Supreme Court has observed, there is no constitutional right to be free from police investigation. n169
But this surveillance discretion may mean something different in the big data context. The intentional surveillance of targeted individuals is not equivalent to the perpetual "indiscriminate data collection" n170 of entire populations. While both approaches involve watching by the government, a program like the N.Y.P.D.'s "total domain awareness" system differs from traditional surveillance enough to warrant a different approach. n171 The very quality of public life may be different when government watches everyone - surreptitiously - and stores all of the resulting information. n172
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