Constitutional Law


“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation of rights and privileges through government-led big data programs as a constitutional harm under substantive due process, and identifies the obstruction of core liberties with big data tools as rapidly evolving and systemic.

To illustrate the mass scale and unprecedented nature of the big data blacklisting phenomenon, this Article undertakes a significant descriptive burden to introduce and contextualize big data blacklisting programs. Through this descriptive effort, this Article explores how a commonality of big data harms may be associated with nonclassified big data programs, such as the No Work List and No Vote List—programs that the government uses to establish or deny an individual’s eligibility for certain benefits or rights through database screening. The big data blacklisting harms of big data tools to make eligibility decisions are not, of course, limited to nonclassified programs. This Article also suggests how the same consequences may be at play with classified and semiclassified big data programs such as the Terrorist Watchlist and No Fly List. This Article concludes that big data blacklisting harms interfere with and obstruct fundamental liberty interests in a way that now