2015 Mitchell Lecture: Who Rules Big Data?

Who Rules Big Data? Law, Knowledge, and Power

The Mitchell Lecture, “Who Rules Big Data? Law, Knowledge, and Power,” will explore that question, with special emphasis on how these information technologies are changing our understanding and application of the law. The event - the Law School’s signature lecture series - will be held at 2 p.m. March 27 in Room 106 of John Lord O’Brian Hall. A reception will follow. The event is free and open to the public.

“There’s a sea change here, a deeper question that is alarming,” says Professor Martha McCluskey, who chaired the event’s organizing committee. “Some people are arguing that big data is not just another new thing for the law to address, but that it really cuts to the heart of what we think of as law. It’s usurping the decision-making of law to a large degree.”

One issue, McCluskey says, is that quantification “takes on the aura of law. It’s a method of decision-making that has the appearance of supreme rationality and objectivity, almost like a divine thing – we’re transcending the human flaws.”

Some scholars, she says, even have made the argument that computer code is law. But, she points out, human subjectivity finds its way into the analysis of big data and hides beyond the seeming objectivity of the numbers.

And the problem of mission creep in the use of data raises other issues of public policy. Credit scores, for example, McCluskey says, not only help banks to evaluate a potential borrower’s creditworthiness, but are used by employers to screen out some job seekers, so that a person’s score determines qualifications in areas that, she says, “may have nothing to do with credit.”

Those uses of big data may be valid statistically because they identify patterns in the behavior of millions of people. But that raises important questions about how these generalizations should govern our lives. For instance, should the Fourth Amendment allow police to search individuals based on their statistical risk profiles? Or, when should law protect individuals from judgments by government or business based on inaccurate underlying data? Further, if the algorithms used in business decisions are protected as trade secrets, might these hide prohibited discrimination or anticompetitive behavior? Without the ability to challenge or even understand the automated decisions that govern our lives, will public and private power become increasingly concentrated and unequal?

The Mitchell Lecture will feature three scholars who come at the issues of big data in different ways. They are:

Virginia Eubanks, an associate professor of women’s studies at SUNY Albany and a Ford Academic Fellow at the New America Foundation, will talk about technology and surveillance in the administration of social welfare programs. She is the author of Digital Dead End: Fighting for Social Justice in the Information Age, and is working on a book about digital surveillance in poor and working-class U.S. neighborhoods.

Elizabeth Joh, a professor of law at the University of California, Davis, will talk about data analysis and surveillance in the criminal justice system. Joh’s research focuses on the regulation of the police, with special emphasis on new surveillance technologies.

Frank Pasquale, a professor of law at the University of Maryland, will discuss his new book, The Black Box Society: The Secret Algorithms That Control Money and Information. Pasquale’s research addresses the challenges posed to information law by rapidly changing technology, particularly in the health care, finance and Internet industries.


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