"OUR IDENTITY IS OFTEN WHAT'S TRIGGERING SURVEILLANCE": HOW GOVERNMENT SURVEILLANCE OF #BLACKLIVESMATTER VIOLATES THE FIRST AMENDMENT FREEDOM OF ASSOCIATION.

Author:Toor, Amna
 
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  1. INTRODUCTION: BIRTH OF THE #BLACKLlVESMATTER 287 MOVEMENT--FORMATION OF A SOCIAL MOVEMENT AND A TARGET OF GOVERNMENT SURVEILLANCE II. BACKGROUND: REVISITING THE PAST & JOINING THE 294 FUTURE - TRACING SURVEILLANCE FROM SLAVERY TO COINTELPRO TO THE #BLACKLIVESMATTER MOVEMENT III: FINDING ASSOCIATION: UNRAVELING THE FIRST 301 AMENDMENT FREEDOM OF ASSOCIATION A. How Far Does the Chill Go: Exploring the 305 Chilling Effect on the Freedom to Associate B. Weighing the Two: Compelling State Interests & Burdens on the Freedom to Associate 309 IV. BIG BROTHER IS WATCHING: HOW GOVERNMENT 311 SURVEILLANCE OF #BLACK LIVES MATTER INFRINGES FIRST AMENDMENT FREEDOM OF ASSOCIATION A. Social Media Networks Are Platforms for 313 Creating Expressive Associations B. Government Surveillance of #Black Lives 320 Matter Serves as a Deterrent on the Exercise of Associational Freedom C. The Scope of the Government's Surveillance of 327 #Black Lives Matter is Not Narrowly Drawn and Infringes the Right of Association V. CONCLUSION--SOLUTIONS MOVING FORWARD 331 "And even technological progress only happens when its products can in some way be used for the diminution of human liberty." --GEORGE ORWELL, 1984, 201 (Penguin Books 1961). I. INTRODUCTION: BIRTH OF THE #BLACK LIVES MATTER MOVEMENT--FORMATION OF A SOCIAL MOVEMENT AND A TARGET OF GOVERNMENT SURVEILLANCE

    February 26, 2017 marked the five-year anniversary of the fatal shooting of seventeen-year old Trayvon Martin, an unarmed African American teen who was last seen purchasing a bag of Skittles and a can of AriZona Iced Tea from a 7-Eleven located in Sanford, Florida, before his chance encounter with George Zimmerman, "a [twenty-eight year old] neighborhood watch volunteer." While Martin's tragic death generated a national dialogue on institutional racism, gun violence, and discriminatory policing practice, (3) it was the jury's verdict of not guilty and acquittal of Zimmerman's charges of second-degree murder and manslaughter that ignited a social media storm. (4) As a response to Zimmerman's acquittal, an activist named Alicia Garza turned to Facebook and posted a "love letter to black people" that soon became viral:

    The sad part is, there's a section of America who is cheering and celebrating right now. and that makes me sick to my stomach. We GOTTA get it together y'all... stop saying we are not surprised, that's a damn shame in itself. I continue to be surprised at how little Black lives matter. And 1 will continue that, stop giving up on black life. Black people. I love you. I love us. Our lives matter. (5) Garza's emotionally charged reaction on social media was initially a medium to convey her sentiment of solidarity with the black community, and to express her disappointment and frustration about the Martin-Zimmerman decision; however, the Facebook post planted the first seeds of what would grow to become the "[twenty-first] century['s] civil rights movement," now widely known as the Black Lives Matter Movement ("BLM Movement"). (6) A few of Garza's contemporaries set up Tumblr and Twitter accounts under the "black lives matter" slogan, and thus the hashtag, #BlackLivesMatter, was formally introduced to the Internet. (7)

    Since its inception, the hashtag has been used as a network connecting civil rights organizations, activists, politicians, and individuals pressing for social and political change. (8) While the San-ford shooting inspired the beginnings of a social justice movement, it was the August 2014 police shooting in Ferguson, Missouri, of eighteen-year old Michael Brown that launched the BLM Movement into motion. (9) Much like the #OccupyWallStreet, (10) the #BlackLivesMatter expanded beyond the realm of social media, and the digital protest soon "took to the streets." (11) As the list of names of individuals encountering police brutality expanded, so did the movement calling for action, police accountability, and the recognition of the contribution and value of black lives. (12)

    Amid the tense political environment, reports have made their way into the public eye revealing that the Department of Homeland Security ("DHS"), the Federal Bureau of Investigation ("FBI"), and local law enforcement have been conducting surveillance across social media platforms to gather information on #BlackLivesMatter protests and individual activists, and tracking the BLM Movement since 2014. (13) In July 2016, Color of Change ("COC") and the Center for Constitutional Rights ("CCR") filed a request with the DHS and FBI under the Freedom of Information Act ("FOIA") for information regarding their policies "on the surveillance" of protests and social media accounts addressing the BLM Movement, and other similarly situated subjects such as police brutality and race in America. (14) After failing to receive the requested information, COC and CCR filed a complaint with the United States District Court in the Southern District of New York in October 2016, seeking to compel the DHS and FBI to produce records containing the requested information. (15)

    While the government agencies' delay in providing information pertaining to the monitoring of public protests and assembly of those uniting under the banner of #Black Lives Matter is alarming as it brings into question the nature and extent of surveillance conducted, a far greater concern is the constitutional right(s) implicated by such surveillance. (16) In New York Times Co. v. Sullivan, (17) Justice Brennan recognized the importance of preserving the right to freely engage in discussion without fear of censorship:

    Those who won our independence believed... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. (18) Sullivan dealt with a defamation claim brought by an elected official against the New York Times for publishing an advertisement that allegedly contained libelous statements about the police department in Montgomery, Alabama. (19) It is against this backdrop that Justice Brennan found an emerging "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." (20) While the medium for expression has expanded since Sullivan, the principles established in Sullivan can be applied to platforms introduced as a result of modern technology, such as the Internet. (21) In Reno v. ACLU, (22) the Supreme Court affirmed that First Amendment protections extends to the Internet--a "dynamic, multifaceted category of communication [which] includes not only traditional print and news services" and by which one "can become a town crier with a voice that resonates farther than it could from any soapbox" or "[t]hrough the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer." (23)

    Hence, protests organized around and addressing issues concerning racial justice, police brutality, and those advocating for the imperative need for reform constitute a matter of public debate, and, as such, government surveillance of social media accounts belonging to activists and protestors and the targeting of these individuals for engaging in political expression deeply offends principles of the First Amendment. (24) However, while the Internet can be perceived as an "uninhibited, robust, and wide-open" (25) forum on which content can be unearthed as "diverse as human thought," (26) and therefore requires online speech to be guarded; similarly, associations formed online warrant First Amendment protection. (27) In particular, this Note argues that monitoring the Black Lives Matter Movement via social media accounts and tracking individuals based on what they say and express and with whom they associate with online runs afoul of the freedom of association rooted in the First Amendment. (28) Modern-day movements, such as BLM, "speak, associate, and organize through social media [and t]heir tweets, blogs, protests, marches, and die-ins are the trumpets by which they call for reform and social justice." (29) Therefore, much like government attempts to control speech can suppress and discourage free thought, government surveillance of associations acts as a censor in deterring individuals from freely engaging with one another. (30)

    Part II first discusses the history of government surveillance of Black activists in America. It then provides a brief overview of the surveillance technologies used by federal agencies and local law enforcement to monitor social media accounts and activity of BLM activists and protestors. An understanding of the types of surveillance technologies employed by federal and local entities provides a foundational basis for the realization of how the First Amendment right to free association is affected by social media surveillance. Part III examines the First Amendment jurisprudence as it relates to the freedom of association. Part IV discusses how social media surveillance of #Black Lives Matter-related activity endangers and by extension, imparts a chilling effect on First Amendment protected association. Part V concludes that the use of surveillance technologies by federal agencies and law enforcement needs to be reexamined and discusses proposed solutions on how to appropriately limit and regulate government agencies' use of digital surveillance...

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