DON'T (TOWER) DUMP ON FREEDOM OF ASSOCIATION: PROTEST SURVEILLANCE UNDER THE FIRST AND FOURTH AMENDMENTS.

• Author: Blinder, Ana Pajar

INTRODUCTION 962 I. THE FIRST AMENDMENT HARM 968 A. The Burden on Protest 968 B. What's a Court to do? 973 C. Avoid the Question, Apparently 975 II. THE FAILURE OF THE FOURTH AMENDMENT 981 A. The Fourth Amendment' s Doctrinal Inadequacy 982 B. Judicial Maneuvering to Favor the Fourth Amendment Ignores the Problem 984 III. IT ALL COMES DOWN TO THE FIRST 986 A. Scope of the Program 989 B. Intent of the Program 990 C. Government Interest 991 D. Aggregation Practices 992 CONCLUSION 993 INTRODUCTION

Officer Derek Chauvin kneeled on George Floyd's neck for nearly eight minutes, (1) reigniting momentum to protest police brutality and systemic racism. (2) A wave of local, national, and, ultimately, global protests ensued. The moment transformed into a movement, with grassroots action and accompanying social media conversation developing from focus on George Floyd to a broader Black Lives Matter message. (3) Drawing comparisons to the United States civil rights movement of the 1960s, the protests in summer 2020 were responsive to similar violence and systemic racism plaguing Black Americans of the past, but proved to be more intersectional and coalition based. (4)

The Black Lives Matter demonstrations, however, were not immune to governmental efforts to impede, infiltrate, or monitor activism. Instead, they magnified the inextricability of protest and surveillance. Modern innovation has made these efforts more sophisticated, but even older forms of technology were also used to stifle dissidence. (5)

Today, government infiltration into perceived dissident groups' activities has been supplanted by advanced surveillance technologies utilizing biometrics, cell phone tracking, and social media monitoring. (6 ). Americans have dealt with policing perceived threats at the expense of constitutional freedoms for a long time, (7) but technology has changed how aware individuals are of the government's tactics. National security was often invoked to justify surveillance in the past, as it is invoked now. (8 )However, today, the tools used by government actors are much further reaching than they were earlier in the 20th century, creating more onerous conditions and greater threats to free speech and association. The inevitable collapse of the distinction between national security and domestic protest-through methods such as designating domestic groups as terrorist organizations--poses graver surveillance concerns and risks of First Amendment infringements. (9) For example, the Department of Justice tenuously classified demonstrators as "Antifa" members, which the administration sought to designate as a terrorist organization. (10) Similarly, the Drug Enforcement Administration was reportedly granted authority to "conduct covert surveillance" to "assist to the maximum extent possible in the federal law enforcement response to protests which devolve into violations of federal law." (11)

Technology can be helpful for protesters because it memorializes and exposes instances of police violence, simplifies the mass organization and coordination of demonstrations, and provides rapid communications to fellow protestors on how to stay safe. (12) But technology also facilitates surveillance. The state is able to quickly track the movements of protestors both through monitoring of social media chatter and through more invasive tactics such as facial recognition software, drones, and surveillance towers. (13)

This Comment focuses on tower dumps, which are downloads of cellular data acquired when cell phones connect to cell sites. (14) When cell phones are on, they scan for cell towers for connectivity and register location information with the network about every seven seconds. (15) This enables the generation of a person's location data through cell site location information (CSLI). (16) Acquisition of information about multiple (or all) devices connected to a cell tower at a certain interval is known as a tower dump. (17 )For the proceeding reasons, tower dumps have become an increasingly threatening form of government surveillance.

It is hard to avoid having one's data acquired by a tower dump because cell phones automatically connect to towers. (18) There is no ability to anonymize yourself with a mask or rely on glitches with facial recognition. Options to protect digital privacy at protests include employing technologically savvy safeguards such as turning off biometrics, encrypting devices, turning off location services, using airplane mode, or more extreme solutions like leaving your phone at home altogether. (19) These safeguards pose additional risks, as phones are not only inseparable from everyday behavior, (20) but are also important accountability mechanisms to record police misconduct, summon help, or coordinate movements. (21)

Too much surveillance can seriously impede protests. Fearing the systematization of protestors' identifications, future retaliatory behavior, or the surveillance itself, demonstrators become deterred from participating in protests. (22) The fear of government encroachment on protestor privacy has severe chilling effects on demonstrators. (23) Law enforcement, for example, can request all the CSLI from towers to identify common cell phone numbers when allegedly investigating a crime. (24) Practically speaking, under the auspices of identifying a single suspect of an alleged crime at a protest against police brutality, law enforcement could track the locations of all attendees of a protest. (25) Protestors who have nothing to do with the supposed target or purpose of the surveillance can still be grouped into the surveillance, providing ample reason to fear future attendance.

If protests are seriously impeded, First Amendment infringement follows. The Supreme Court has recognized that state actions which do not facially stifle freedom of association can still have the effect of doing so and thereby abridge First Amendment protections. (26) While certain government action may "appear to be totally unrelated to protected liberties," (27) a closer look can reveal otherwise, such as when surveillance impedes free speech activity. Protestors who know they are under the relentless watch of the government have rightful fears of participation in demonstrations. State action surveilling protestors via tower dumps certainly "may have the effect of curtailing the freedom to associate." (28)

The topic of surveillance is most often discussed in a Fourth Amendment context, but whether the Fourth Amendment would provide protection in the context of tower dumps is disputed. (29) This Comment will take a different approach. Regardless of the answer under a Fourth Amendment analysis, tower dumps during mass protests can chill speech and free association enough to warrant heavy scrutiny under a First Amendment framework. (30)

Part I of this Comment outlines the tangible First Amendment harm posed by government use of tower dumps to surveil protestors and how that injury is conceptualized doctrinally. Despite a body of law established to clarify freedom of association protections, First Amendment jurisprudence has not directly or sufficiently addressed the problem in the context of protest in the modern digital age, in large part due to the courts' reliance on and deference to Fourth Amendment doctrine. Part II argues that the Fourth Amendment is an insufficient framework for courts to utilize when addressing the First Amendment implications of technological surveillance of protests. Finally, Part III illustrates how the doctrinal standard used for freedom of association should be applied when the First Amendment is implicated in novel privacy cases. (31)

1. THE FIRST AMENDMENT HARM

   This Part explains how certain government surveillance threatens free speech. More specifically, this Part argues that the fear of tower dump surveillance may pose a sufficient chilling effect for First Amendment purposes. This Part then details the governing freedom of association doctrine used by courts when speech is chilled, before clarifying that the courts have neglected to apply this doctrine when government surveillance is the subject of legal challenges.

   1. THE BURDEN ON PROTEST

      Protests play a valuable role in democratic society. Free speech, assembly, and petition help a free society share ideas, create culture, debate, dissent, disrupt, and even invite dispute. (32) One scholar, Jack Balkin, posits that "[ajlthough freedom of speech is deeply individual, it is at the same time deeply collective because it is deeply cultural." (33) Central to these theories of free speech is the right to protest. Some scholars go so far as to contend that assembly is "at least as central to the process of self-governance as is free speech and that assembly and petition were historically viewed as more fundamental to a politically functioning society than speech." (34) One could argue the very foundation of American ideals is predicated on the right to protest. (35) Protests demanding women's right to vote, the March on Washington and other venerable efforts of the civil rights movement, the Stonewall riots, and anti-Vietnam protests all exist in the annals of history as turning points in the slow turn toward progress. (36)

      Further, protests advance self-governance by bolstering civic participation and direct democracy, serving as "one particular public opinion signal" that among other resolutions, "may influence[] elected representatives." (37) Protests contribute to the marketplace of ideas (38) through the circulation of ideas that critique prevailing policies or respond to minority dissent. Lastly, protests foster self-expression by allowing individuals to form beliefs and then express them. (39) Intrusions on this critical right to protest pose a severe threat to fundamental liberties which form the bedrock of societal participation.

      Activist infrastructure has shifted in the digital age, making modern protest ripe for First Amendment...