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

Author:Desai, Deven R.
Position:II. Protecting Future and Past Associational Freedom through Conclusion, with footnotes, p. 611-632

    The concurrences in Jones raised concerns about the third party doctrine and raised questions regarding what might be learned from data, because those concerns and questions are part of backward-looking surveillance. The Court was calling out that such surveillance threatens associational freedom, but we lack ways to manage this new threat. (185) We can look backward and harm associational freedom as much, if not more, than when looking forward. This Part explains how the procedural protections for forward-looking surveillance reveal why and how we should protect associational freedom from backward-looking surveillance.

    1. Associational Freedom and the Protection of Future Acts

      No one and no policy supports law enforcement attaching a device to track someone's every move. (186) Yet, after a warrant has issued, law enforcement may do just that for a limited time. In simplest terms, United States v. Jones addressed such a problem. The government had used a technique, failed to follow the warrant, and so violated the Fourth Amendment. (187) As Amar and Solove have argued, when surveillance and First Amendment concerns intersect is precisely when such procedures are needed. (188) Furthermore, "if there are good reasons for suspecting strong and systematic over-zealousness on the part of certain segments of executive officialdom," preclearance by the judiciary may be required. (189) Both concerns are present with bugging, tracking, and wiretapping. All require warrant procedures, because they mitigate the potential harms to associational freedom. (190)

      When forward-looking surveillance intersects with associational freedom, surveillance must be limited or the purposes of the First and Fourth Amendment are gutted. Warrant procedure is central to how we manage surveillance and civil liberties. As the Court said in Berger, "[t]he purpose of the probable-cause requirement of the Fourth Amendment [is] to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed." (191) Lack of prior review means no check and balance is even possible. A "neutral and detached authority" must evaluate the warrant application to see whether probable cause exists before issuing the warrant. (192) As the Court said a year later in Katz, this review is required because of surveillance's secret nature and because asking permission later would lead to "hindsight" bias rather than "objective predetermination" that the surveillance should be permitted. (193) Anything other than prior review leaves constitutional protection at "the discretion of the police." (194)

      When law enforcement can watch and record us without stating specifics of a "particular offense" or the property to be seized--in other words, without establishing probable cause--the order works as a general warrant. (195) A ban on practices that operate as general warrants is a mainstay of Fourth Amendment law. (196) Allowing officers to bug someone for sixty days "is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause." (197) Without a termination date surveillance can persist even after the thing sought has been found. (198) Lack of notice "permits uncontested entry without any showing of exigent circumstances." (199) The secret recording of someone means they would never know that a search or seizure occurred as they would with other searches and seizures. (200) And, because there is not a return on the warrant, the process for giving up the information gathered, law enforcement could use "seized conversations of innocent as well as guilty parties." (201) Together, these practices enable a "blanket grant of permission to eavesdrop" in part because of the lack of "adequate judicial supervision or protective procedures." (202) These types of practices were rejected in Anglo-American jurisprudence beginning with

      Wilkes v. Wood (203) and Entick v. Carrington. (204) They were rejected in the 1760s and two hundred years later in the (1960) s for the same reason: they were and are "totally subversive of the liberty of the subject." (205) That liberty interest is associational freedom.

      Tracking technology has opened the door to a new type of dragnet that requires us to remember the importance of freedom from surveillance. This dragnet evades the limits of a trespass approach to privacy. (206) The trespass approach to surveillance does important work, but it does not work alone. (207) Some issues are not amenable to the trespass approach, because no touching is required. Recall that the Berger court was worried about "electronic rays beamed at walls or glass windows... capable of catching voice vibrations as they are bounced off the surfaces." (208) Trespass cannot address that possibility just as it cannot manage the problem of a tap on a public phone booth in Katz. In Jones, Justices Sotomayor and Alito showed how trespass fails to address the larger implications of tracking. Justice Sotomayor noted that some "electronic or other novel modes of surveillance... do not depend upon a physical invasion on property." (209) Justice Alito agreed with that concern. (210) Just like the Berger court, he speculated about things that might come to pass. He pointed out that the government might also "require [ ] or persuade [ ]" installation of tracking mechanisms in all cars or might activate a stolen vehicle tracker. (211) Trespass would not address those possibilities, but the harms to associational freedom would remain. We do not have to imagine technological dystopias to understand the harms here. William Rehnquist explained them forty years ago. His example was prescient.

      The question is not one of privacy as in acts or facts kept secret; the problem lies in the government's non-particularized surveillance of people. (212) Then-Justice Rehnquist suggested that one might place a police officer at a bar daily and take down all the license plate numbers for later cross-referencing with the Department of Motor Vehicles records to gain "a reasonably accurate list of people who patronize the bar." (213) He posited that even if it were cost effective for the government to "keep a dossier of information pertaining to every citizen" most would say we should not do so. (214) Such a power would create a "justified uneasiness," because patrons would feel their names were being "taken down and filed for future reference." (215) Today what Rehnquist called "an extreme" example is now an easy reality. (216) As the Justices in the Jones concurrence stated, the cost issue alone has changed. (217) The possibility of low-cost surveillance was a reality in the 1960s with bugging and has only become a less expensive and easier reality today. (218) As one study has shown, the cost to track individuals has dropped from more than $250 an hour for covert pursuit by officers to $10 per hour with a GPS device and $5.21 per hour with cellular phone tracking. (219) The cost drop makes it too easy to place an officer, or "tiny constable," at every tavern door or any other place we may go. (220) With bugging, Justice Douglas equated pervasive, secret electronic surveillance with deploying police in every home or office. He offered that even if a statute authorized doing so if there was "probable cause to believe that evidence of crime would be obtained, there is little doubt that it would be struck down as a bald invasion of privacy, far worse than the general warrants prohibited by the Fourth Amendment." (221) He then said that electronic surveillance would be worse because we would be "completely unaware" of its presence. (222) Tracking has the same problem. The Jones Court recognized the temptation and possibility to use the technology in ways that threaten associational freedom, and thus demands stronger procedures to mitigate those potential harms.

      Rehnquist's other issue, the ability to maintain dossiers, has also come to full fruition. (223) That possibility connects to Justice Sotomayor's concern over surveillance of past activities. Rather than having to set someone at a bar in real time, law enforcement can access databases to get precise information about someone at very low cost and end up with the same, if not a better, dossier that Rehnquist recognized as undesired. (224) That is why Justice Sotomayor could connect tracking to the general problems "the digital age" poses for the third party doctrine. (225) She recognized that the digital age has opened the door to new threats to associational freedom and current law has not kept pace with this change.

    2. Tracking the Past Threatens Associational Freedom

      Surveillance of our past actions threatens associational freedom at least as much as surveillance of our future actions. Calling someone, visiting a web site, sending emails, and buying "books, groceries, and medications" all involve third parties and leave behind traces of our activities. (226) Our daily lives generate data exhaust that allows law enforcement to figure out exactly the same things that raise First and Fourth Amendment concerns for wiretapping and tracking. (227) That is why Justice Sotomayor asserted that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." (228) As Rehnquist explained, these issues are not about privacy in the sense of away from public eyes. (229) The concerns about GPS and third parties are important, because they are part of a larger problem. We can now watch someone for an extended period of time, secretly and inexpensively, going forward, and we can do the same, if not more, going backwards. We have some sense of what to do about forward-looking surveillance. We must rethink backward-looking surveillance. (230)

      Looking at data from a GPS company, a cellular phone...

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