Outsourcing, Data Insourcing, and the Irrelevant Constitution

Once the stuff of "paranoid fantasy,"· the era of ubiquitous government surveillance has arrived in large part due to the expansion of advanced technology and bulk data in private hands. Gone are the days in which cutting-edge clandestine surveillance was conducted through direct-yet relatively exceptional-methods like court ordered wiretaps. The government now carries out much of its surveillance by applying mathematical algorithms to huge sets of data that customers willingly turn over to third-party sources such as Verizon and Google. Privately-sourced phone, e-mail, and IP address information is then paired with so-called "enrichment data" from Facebook, credit card companies, airline manifests, voter registration rolls, GPS devices, aerial and closed-circuit camera photos, facial recognition systems," embedded microchips, and web-tracking technologies to create intimate personal dossiers of unsuspecting individuals who have broken no laws. Such data insourcing for purposes of surveillance is of a piece with the government's widespread practice of outsourcing sovereign responsibilities to third parties through service contracts and other devices that effectively transfer public power to private hands. In both circumstances, existing law is not up to the task of ensuring that government officials remain accountable to the populace for sponsored activities. Statutory surveillance law and Fourth Amendment doctrine were crafted in the pre-digital age, when unconsented monitoring by the government was the greatest threat to privacy. Yet today, private industry parses and stores personal information on a scale that is exponentially greater than that which the government can aspire to on its own. The government capitalizes on such troves of private sector information for its own surveillance. It also hires private parties for military combat operations, nuclear weapons management, municipal policing, prison administration, policy planning am! rulemaking, public benefits determinations, international relations work, and its own personnel management. Because the Constitution only applies to state action, the government's use of private sources to conduct its work evades constitutional barriers that would otherwise operate to ensure accountability to the people. Outsourcing and data insourcing occupy what amounts to a pocket of constitutional immunity as an accident of doctrinal shortsightedness." Numerous scholars have outlined legislative proposals for addressing private sector involvement in government practices. This Article seeks to establish that, in spite of the many shortfalls in prevailing doctrine, recognition of constitutional limits on the government's use of insourcing and outsourcing to perform sovereign functions is-or should be-inexorable. Such limits can be derived from the Constitution's structure, which assumes that the government remains ultimately accountable to the people for the exercise of its functions. With an eye towards creative litigation, this Article recasts state action, private delegation, and Fourth Amendment doctrine in ways that enable judicial review of whether the government has structured its outsourcing and data insourcing.