Defining Inherently Governmental Functions in the Era of Big Data

The sheer amount of data and knowledge available today is beyond the ability to comprehend.  Individuals and organizations who are able to take data sets and infer patterns, predictions and conclusions will add much value to efficiency in commerce, prudence in collective action, and enriching our lives as individuals. The U.S. Government has long relied on contracted vendors to conduct studies and analysis to support its decision-making.  This article will focus on the government, and keeping control of its prerogatives as it inevitably outsources a lot of data analysis to vendors.

"Inherently governmental functions" is a term of art describing decisions and actions that must be done by sworn government workers.  This is based in public law[1], the Federal Acquisition Regulations[2], and Executive Orders[3]. The government embeds contractor employees at its sites and as well as working offsite to do a lot of its work.  However decisions like awarding contracts, pressing criminal charges, directing combat forces, voting on legislation, or investing the government's money cannot be outsourced while maintaining the integrity and credibility of the government.

The amount of data and statistics will add a great tool to give insights into public health, crime stoppage, education, and virtually any other governmental function imaginable.  However, Big Data will require a labor force of statisticians, analysts, and subject matter experts that the government does not readily have.  As the saying goes, "knowledge is power" and the government contractors working on data analytics will have their own power base given the tremendous knowledge they will gain.  A vendor that secures some long term contracts will gain expertise in analytics as well as the subject matter they were contracted to study.  This will increase the value of their business, the goal of every business.

This is where the law must come in.  A tension can develop between a vendor seeking to gain as much knowledge as possible, and protecting the privacy of the American people. In a healthy, well functioning contract, a vendor is doing well financially by helping the government achieve its public mission. As vendors are motivated by sales, public officials are motivated to achieve their goals.  As data analysis pervades more and more executive agencies, public officials will have to have legal rules to force them to rein in vendors, we well as their own employees from collecting too much information.    Simple rules can include requiring contractors to wipe all data from their computers' memory, as well as non-disclosure agreements for contractor employees.

Big Data worries are not just about substance, they are about process.  Certain information is available through free online search engines.  Even more is available through expensive databases.  The government, supplemented by embedded private contractors, also has tremendous technical investigative tools and power of legal discovery to access data.  Classic Fourth Amendment (Criminal Procedure) prinicples will inform how domestic government agencies collect, analyze and store data.  Using data "in a manner which will conserve public interests as well as the interests and rights of individual citizens”[4] will continually be redefined as search and storage capacity grow geometrically.  America requires a legal regime dynamic enough to keep up with the changing frames of “subjective expectations of privacy”[5] and the temptation for government and vendors to use this information for public goals.

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[1] FAIR Act Public Law 105-270

[2] Federal Acquisition Regulations Section 7.500

[3] Publication of the Office of Federal Procurement Policy (OFPP) Policy Letter 11-01, Performance of Inherently Governmental and Critical Functions

[4] Carroll v. U.S.  267 US 132, 149 (1925)

[5] Kyllo v U.S.  533 U.S. 27, 33 (2001)