Yesterday, TechFreedom submitted comments urging the White House to apply economic thinking to its inquiry into “Big Data,” also pointing out that the worst abuses of data come not from the private sector, but government. The comments were in response to a request by the Office of Science and Technology Policy.
“On the benefits of Big Data, we urge OSTP to keep in mind two cautions. First, Big Data is merely another trend in an ongoing process of disruptive innovation that has characterized the Digital Revolution. Second, cost-benefit analyses generally, and especially in advance of evolving technologies, tend to operate in aggregates which can be useful for providing directional indications of future trade-offs, but should not be mistaken for anything more than that,” writes TF President Berin Szoka.
The comments also highlight the often-overlooked reality that data, big or small, is speech. Therefore, OSTP’s inquiry must address the First Amendment analysis. Historically, policymakers have ignored the First Amendment in regulating new technologies, from film to blogs to video games, but in 2011 the Supreme Court made clear in Sorrell v. IMS Health that data is a form of speech. Any regulation of Big Data should carefully define the government’s interest, narrowly tailor regulations to real problems, and look for less restrictive alternatives to regulation, such as user empowerment, transparency and education. Ultimately, academic debates over how to regulate Big Data are less important than how the Federal Trade Commission currently enforces existing consumer protection laws, a subject that is the focus of the ongoing FTC: Technology & Reform Project led by TechFreedom and the International Center for Law & Economics.
More important than the private sector’s use of Big Data is the government’s abuse of it, the group says, referring to the NSA’s mass surveillance programs and the Administration’s opposition to requiring warrants for searches of Americans’ emails and cloud data. Last December, TechFreedom and its allies garnered over 100,000 signatures on a WhiteHouse.gov petition for ECPA reform. While the Administration has found time to reply to frivolous petitions, such as asking for the construction of a Death Star, it has ignored this serious issue for over three months. Worse, the administration has done nothing to help promote ECPA reform and, instead, appears to be actively orchestrating opposition to it from theoretically independent regulatory agencies, which has stalled reform in the Senate.
“This stubborn opposition to sensible, bi-partisan privacy reform is outrageous and shameful, a hypocrisy outweighed only by the Administration’s defense of its blanket surveillance of ordinary Americans,” said Szoka. “It’s time for the Administration to stop dodging responsibility or trying to divert attention from the government-created problems by pointing its finger at the private sector, by demonizing private companies’ collection and use of data while the government continues to flaunt the Fourth Amendment.”