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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 lowcost 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.

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