Legal aspects of big data

big data sheriff's star“Big Data”— the business-world buzzword for the collection and analysis of massive amounts of data—has caught on with local government officials in the past few years as many cities have developed extensive data portals providing citizens access to heaps of public information like data from 311 calls. And its not only local governments getting involved, in 2012 the White House announced the “Big Data Research and Development Initiative,” through which federal agencies would commit funding toward collecting and analyzing “huge volumes of digital data.”

So, what sparked this interest in “Big Data”? In short, innovations in computing, particularly the ability to allow users to remotely access large data sets stored on third-party servers, i.e., “cloud computing.” But as attorney John Pavolotsky wrote last November in Business Law Today, “[w]hile business publications have written widely about Big Data, legal commentators have written sparingly on the subject.”

Pavolotsky goes on to note three areas of legal concern he see with Big Data: privacy, data security, and intellectual-property rights. He does not dwell long on data security and IP rights for long, other than to note that API licenses should be reviewed carefully to determine the permissible scope of data distribution. He focuses instead on privacy, arguing that, because of the “inherent squishness” of the legal standard applied to collection of cellphone or GPS data under the Fourth Amendment—which protects guards people’s “reasonable expectation of privacy”—perhaps legislatures should limit the length of time data can be stored.

I’d like to add one other interesting question surrounding Big Data, though it leans more economic than legal: whether data collection should remain public or be privatized. This issue comes up with vacant-property registration, which I’ve written about before, as many local governments allow registration through MERS, a private company, rather than directly through local data systems. Government officials are then provided access to MERS.

Privatization of data collection and analysis provides many benefits, particularly in that it is cost-effective for local government to take advantage of an already developed platform. The primaru draw back, however, is the risk of industry capture, as with MERS and its association with the mortgage industry.

The best solution, when available, is for local governments to take advantage of open-source programs or nonprofit developers (as available through Code for America). Otherwise, there are companies like Socrata that, as far as I can tell, are not closely associated with any industry other than the cloud-computing and data-collection industry.

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