September 2005

Early in the year, we talked about identifying scenarios that would address a government entity's use of data mining of "open source" (no cost, available to

everyone) information on the internet.

We were looking for scenarios that might inform the answers to questions such ase:

1) whether there should be limitations placed on what a government entity can search for, look at, or report on from the internet;

2) whether there are limitations on the inferences an investigator may draw from what he learns; and/or

3) whether transparency of the process would facilitate the process or ensure a correct outcome?

Here are some examples:

Hypothetical 1

A person has been nominated to be a federal judge.

the person must undergo a background investigation as part of the process.

The background investigation includes a massive internet search for anything related to the person.

The search reveals that the person has the office next door to an abortion clinic.

This was not observed visually on visits to the person because the abortion clinic’s door is unmarked.

A conservative member of Congress becomes aware of the information,

infers that the person is sympathetic to abortion rights and scuttles the proposed appointment.

Rules:

a) The President nominates people for federal judgeships.

b) A nominee must pass a background investigation.

c) Background investigations address suitability and fitness for service.

(This is supposed to be an objective process following the rules and procedures of the investigating agency.)

d) A nominee must be approved by the Senate.

(Because the appointments are for life, this is a very political process.)

Hypothetical 2

A multi-agency task force working crimes against children is investigating allegations regarding a number of people,

all of whom are alleged to be soliciting minors over the internet.

After the law enforcement officers establish that they have met the lowest legal threshold and have the right to begin a preliminary investigation,

a computer system researches these people on the internet.

The program discovers that one individual has been posting medication questions to an internet AIDS bulletin board.

The law enforcement officers decide to focus their investigations on that individual because they believe there’s a heightened urgency.

Rules:

1) Soliciting minors for sex is a crime under federal law.

2) Soliciting minors for sex is a crime under the laws of each of the 50 states.

3) It violates the Constitution to select individuals for criminal investigation based upon the race, age, ethnicity, etc.

4) Other laws prohibit discrimination against people based upon their medical disabilities or the perception of disabilities.

5) It is lawful for law enforcement agencies to select which of multiple leads or cases to follow.

(This may be due to more credible information, greater risk of injury to the public, etc.)

Hypothetical 3

A person applies for a job as a school teacher.

The local district determines that the individual has the required teaching certificate and experience.

One member of the interviewing committee just doesn’t feel quite right about the applicant and

decides to utilize a program that searches the internet.

The program finds a website that lists the applicant as a lawyer suspended from practice;

the suspension was issued after it was determined that the person had repeatedly failed to file cases for clients before the statute of limitations ran out.

There was nothing in the application process that would have required the applicant to reveal the information.

However, the committee member forwards the information to all of the other members and proposes that the job offer be withdrawn.