Big Data and the Right to Political Participation

In recent years, the big data revolution has rapidly expanded from the private to the public sector. Today, government authorities at all levels collect, aggregate, and analyze mass amounts of digital data produced by citizens in their daily activities in order to inform their policy choices in such diverse areas as healthcare, urban planning, education, transportation, and crime control. Proponents of this trend assert that it not only yields more rational and efficient policies but also facilitates political participation by allowing more people to influence governmental decisions at a low cost and with little effort.<br><br>This Article argues, however, that the political participation that big data enables is flawed in two main respects. First, such participation is usually passive and unintentional and does not allow citizens sufficient control over the determination of their needs and preferences and their translation into public policy, nor does it leave room for public deliberation over contested issues. Second, the apparent neutrality and inclusiveness of big data may obscure the systematic exclusion of socioeconomically disempowered groups who do not produce digital data that can affect public policy. The Article refers to these deficiencies as the problem of mild participation and the problem of exclusion, respectively. <br><br>After presenting these problems, the Article turns to the work of political philosopher Hannah Arendt to assess them from a theoretical perspective. It discusses Arendt’s conceptualization of deliberate action and speech as the fundamental building blocks of political participation, as well as her claim that everyone should have the right to such participation, which she defines as the “right to have rights.” While Arendt developed these ideas to explain the ramifications of the mid-twentieth century state-centered world order, this Article suggests that with some adaptations, they can also be invoked to explore the implications of big data-based policymaking in the globalized, datafied world of the twenty-first century.<br><br>Moving from theory to practice, the Article demonstrates the problems of mild and exclusionary participation in two public domains: healthcare and urban planning. It discusses recent federal, state, and local big data initiatives and shows that none of them allows for meaningful public input or deliberation. It also shows that due to various financial, technological, and mental barriers, members of socioeconomically disadvantaged groups are likely to be underrepresented in these projects. <br><br>Finally, the Article asserts that in view of its participatory deficits, big data-based policymaking in its present form may be incompatible with constitutional norms. It argues that under an uncommon yet plausible and historically well-founded interpretation, the First Amendment may be understood to establish the positive right of citizens to participate in governmental policymaking in a manner that allows them to express reasoned opinions and engage in public deliberation, while the Fourteenth Amendment may be understood to establish the right to equal participation in policymaking of all segments of the population, including socioeconomically disadvantaged groups. The Article explains how exactly these alleged constitutional rights apply to big data analysis and discusses some measures that government authorities can take to meet their corresponding obligations without giving up the efficiency advantages of big data-based policymaking.