GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2002

Status

Accepted

Abstract

In this article, Professor Solove examines the increasing information flow from the private sector to the government, especially in light of the response to September 11, 2001. In today's Information Age, private sector entities are gathering an unprecedented amount of personal information about individuals, and the data is increasingly being accessed by government law enforcement officials. This government information gathering takes place outside the bounds of the Fourth Amendment, since the Supreme Court held in Smith v. Maryland and United States v. Miller that the Fourth Amendment does not apply to records held by third parties. Law enforcement officials can, with little restriction or judicial oversight, assemble what amounts to a digital dossier about a person by obtaining the personal details aggregated by various banks, businesses, websites, employers, ISPs, and other entities. On the other hand, access to information held by third parties is often critical to effective law enforcement. In light of the growing amount of personal data held by the private sector in the Information Age, to what extent should the government be restricted in its gathering of personal data from the private sector? In the void left by the Fourth Amendment, a series of statutes regulate government access to third party records, but this regime is woefully inadequate and ineffective. Reversing Smith and Miller will not work; the problem is far too complicated. Professor Solove explains why these solutions fail, and he proposes a new and far-reaching solution.

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