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In recent years, the big data revolution has rapidly expanded from the private to the public sector. Today, government authorities at all levels analyze mass amounts of digital data produced by citizens and use it to inform their policy choices in such diverse areas as healthcare, education, transportation, and urban planning. Proponents of this trend assert that it not only yields better policies, but also facilitates political participation by allowing more people to influence governmental decisions at a low cost and with little effort.

This Article argues, however, that the political participation that big data analysis currently enables is flawed in two main respects. First, such participation is usually passive and unintentional, and does not leave room for public deliberation over contested issues. Second, the apparent neutrality of big data may obscure the systematic exclusion of socioeconomically disempowered groups who do not produce digital data that can affect public policy. To explicate these problems, the Article turns to the work of political philosopher Hannah Arendt, especially to her conception of political action and speech and to her idea of the “right to have rights.” It then demonstrates these problems in recent big data initiatives in the fields of healthcare and urban planning.

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 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. It also argues that 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.