Abstract
Modern enhancements of data mining have unfolded in a legal near-vacuum. No extant legal system adequately specifies the property rights in the information elements that make up big data. The miners rely on their technical ability to gather and exploit, without waiting to confirm their entitlement to do so. Innovators have tolerated the legal vacuum because, as a practical matter, most potentially valuable information is accessible. Information by its nature implies a sender and a recipient. This sharing relationship necessarily complicates ownership, in particular the power to exclude. At the same time, the capacities that the mining of big data empowers are sufficiently novel to fall outside the scope of traditional regulatory regimes, including those focused on national security.
This Article considers the national security implications of this legal vacuum. It conceives of instances of big data as emergent systems. It argues that the potential benefits and risks of big data demand property rules that optimize the value of data systems, accounting for potential risks as well as benefits, while safeguarding the interests of persons who originate information. The key insight is to distinguish big data as an emergent entity from the countless events that constitute collectable information. The distinction allows us to think separately about the property entitlements and regulatory constraints attributable to the elements and the systems. This analytical step in turn clarifies which legal approaches may advance national security interests consistent with other values and commitments.
Start Page
307
Recommended Citation
Stephan, Paul B. III
(2025)
"Big Data as a National Security Issue,"
University of Chicago Legal Forum: Vol. 2024, Article 9.
Available at:
https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/9