Constitutional limits on surveillance: associational freedom in the age of data hoarding.

Author:Desai, Deven R.
Position:Introduction through I. The Constitution Favors Enabling and Making Associations, p. 579-611
 
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ABSTRACT

Protecting associational freedom is a core, independent yet unappreciated part of the Fourth Amendment. New surveillance techniques threaten that freedom. Surveillance is no longer primarily forward looking. Today, changing technology allows law enforcement and intelligence services to obtain the same, if not more, information about all of us by looking backward. This shift massively expands the government's ability to examine, investigate, and deter exercise of the freedom of association.

Forward-looking surveillance has limits that don't apply to backward-looking surveillance. Some limits are practical such as the cost to place a person in a car to follow a suspect. Some are procedural, such as the requirement that surveillance relate to criminal activity. In addition, surveillance such as wiretapping and using a GPS tracker often requires a warrant, involving review by a neutral magistrate. The warrant sets limits on what information may be collected, how it is collected, and how it can be used. The surveillance is also time limited and requires continual justification to a judge, or the surveillance will be shut down. With backward-looking surveillance all of these protections are gone. Anyone conducting surveillance can now use low-cost technology to track us or need only ask a business for the record of where we went, whom we called, what we read, and more. Revelation of the NSA's vast PRISM surveillance project is but the most recent example of overreaching surveillance. The FBI has previously deployed programs to read mail, obtain lists of books read, demand member lists, and generate watch lists of people to round up in case of national emergency. The efforts vary; the harm is the same. With access to a myriad of our records, law enforcement or intelligence services have an almost perfect picture of our activities and associations regardless of whether they are criminal. With digital records these harms are more acute. Once the data about our activities is gathered, that data may be kept indefinitely. There is now a data hoard. Once created, the hoard can be continually rifled to investigate us but without any effective oversight. In short, data hoards present new ways to harm associational freedom.

Yet, in the face of these new surveillance threats, our current understanding of associational freedom is thin. We over-focus on speech and miss the importance of the precursors to speech--the ability to meet or network and to share, explore, accept, and reject ideas and then choose whether to speak. Recent work has shown, however, that the Constitution protects associational activities, because they enable self-governance and foster the potential for speech. That work has looked to the First Amendment. I show that these concerns also appear in Fourth Amendment jurisprudence and work to protect us from surveillance regardless of whether an act is speech or is shared with others including third parties.

The Article then examines the implications of the growing technology of backward-looking surveillance for Fourth Amendment jurisprudence. Notably, warrant procedures should be updated, building especially on the idea of return, which requires the government to return items taken as part of an investigation once they are not needed. In our new era of backward-looking surveillance, the idea of return requires deletion of data after an investigation. This shift will allow access to data but limit the ability to overreach and threaten associational freedom. When new surveillance techniques threaten associational freedom, they must be subject to proper constitutional limits. This Article explains why those limits are needed, when they must be in place, and how they operate.

INTRODUCTION I. THE CONSTITUTION FAVORS ENABLING AND MAKING ASSOCIATIONS A. Associational Freedom Protects Acts Other than Speech B. Associational Freedom Protects Public Acts II. PROTECTING FUTURE AND PAST ASSOCIATIONAL FREEDOM A. Associational Freedom and the Protection of Future Acts B. Tracking the Past Threatens Associational Freedom C. How Surveillance Chills and Data Tempts III. DISCIPLINE AND DATA HOARDING A. Against General Warrants for Data B. Associational Freedom in Perspective CONCLUSION INTRODUCTION

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.

--Justice Sonia Sotomayor, United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring).

[I]n any normal sense of the word [privacy] ... there would be an uneasiness, and I think a justified uneasiness, if those who patronized [a] bar felt that their names were being taken down and filed for future reference [by the government], ... [M]ost of us would feel that ... a dossier on every citizen ought not to be. compiled even if manpower were available to do it....

--William H. Rehnquist, Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement ?

Or: Privacy, You've Come a Long Way, Baby, 23 U. Kan. L. Rev. 1, 9-10 (1974). (1)

The Constitution demands that we limit law enforcement and domestic intelligence precisely when it has become too easy to conduct surveillance, because that power threatens core aspects of our democracy. (2) To date, we have treated forward-looking surveillance and backward-looking surveillance differently. Changes in technology call this distinction into question and in some cases makes it untenable. Surveillance can reveal our activities and associations, but forward-looking surveillance has limits. Surveillance such as wiretapping and using a GPS tracker often requires a warrant and must relate to criminal activity. Judges review surveillance procedures before they are deployed. The warrant will be specific about what information may be collected, how it is collected, and how it can be used. The surveillance is also time limited and requires continual justification to a judge, or the surveillance will be shut down. With backward-looking surveillance all these protections are gone. Law enforcement or intelligence services (3) need only ask a business for the record of where we went, whom we called, what we read, and more. (4) They then have a near perfect picture of our activities and associations regardless of whether they are criminal. (5) There is thus an asymmetry that makes little sense.

Consider tracking. The FBI has stated a preference for using a warrant when using a GPS tracker. (6) If the FBI wishes to track someone for the next twenty days with a GPS tracker, it will go through warrant procedures and adhere to them. (7) If there is a misstep in obeying the warrant, the evidence gathered can be thrown out. (8) Yet, why go through the process of obtaining a warrant, placing a device on a car, retrieving the device, and adhering to all the steps a warrant requires? The FBI can instead identify a suspect, wait twenty days, and find the same information for those twenty days with almost no process. (9) It can even ask for records for more than the twenty days it wanted to start; and arguably as far back as third party records are kept. Worse, once the data is gathered, the gatherer may keep that data indefinitely. They have a data hoard. That hoard grows with each new data request.

Once created, the hoard can be continually rifled to investigate us but without any effective oversight. (10) But desire does not make the practice correct. W hen a calamity occurs, the outcry about what the government could or should have done to prevent the event is fierce. (11) As President Obama has said, "if another 9/11 or massive cyber attack occurs, [executive actors] will be asked by Congress and the media why they failed to connect the dots." (12) Other crimes--child abductions, serial killing, shooting sprees--spur the same response. (13) It is the executive's job to police and protect us. It is society's job to set out the limits on that duty. Having access to data may make law enforcement and intelligence sendees more efficient. But efficiency and ease are not the touchstones of the Constitution's approach to surveillance. (14)

Fourth Amendment jurisprudence and the reasonable expectation of privacy test are supposed to calibrate the limits on law enforcement and domestic intelligence surveillance, but the analysis gets lost in asking whether something is private or public. Because of the obsession with privacy as secrecy, the inquiry does not protect public acts, even limited ones such as acts that have been disclosed to third parties. (15) Yet many acts are important even if they have not been kept secret. Freedom from surveillance is important, because surveillance undermines associational freedom.

I argue that protecting associational freedom is a core, independent, yet underappreciated part of the Fourth Amendment. If we recapture that function, we will see how to limit all manners of surveillance. Until we do that, government will be able to achieve a type of total surveillance that threatens associational freedom. (16)

Associational freedom protects acts that support and foster speech, but that protection exists regardless of whether speech occurs. Associational freedom is about the acts--such as the right to petition, to assemble, to read, to coordinate activity, to use social networks, to march, and more--that are not speech and are often not private, but provide the foundation for public speech, dissent, and democracy. (17) Associational freedom is thus about something other than expressive speech (18) and something other than privacy as secrecy from everyone. In current terms, associational freedom is about the power of networking. (19) Diverse, challenging, and dissenting speech is core to our democracy. (20) But to have the possibility of that speech, we need to share and develop ideas free from government surveillance so we...

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