Author(s)
Source
Boston College Law Review, Vol. 49, No. 741, 2008
Summary
Analyzes surveillance of “non-content” communications data and its potential infringement on First Amendment rights.
Policy Relevance
The paper argues that the First Amendment’s freedom of association guarantees mandate that government use of traffic data for relational surveillance be regulated and provide a framework for such regulation.
Main Points
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“Non-content” communications traffic data refers to information such as phone numbers and email addresses.
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Recent technological advancements, specifically with regard to the Internet, have expanded the means by which people communicate and associate with one another.
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In the wake of 9/11, these same technology expansions have enabled government officials to monitor communications in search of threatening, potentially “terrorist” groups.
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While there has been significant focus—in the law and media—on the government’s surveillance of the content of this communication, there has been less on the surveillance of “traffic data,” i.e. who is talking to whom, with the result that traffic data is much more easily accessible to government officials. It is generally assumed that government access to traffic data is much less intrusive than access to communications content.
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Non-content traffic data in the aggregate can provide detailed information about First Amendment-protected associations. Such information can be the equivalent of membership lists, government access to which has long been held to implicate First Amendment freedom of association. Unregulated government surveillance of such associations can have unconstitutional chilling effects.
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Moreover, the broad scope of relational surveillance, and the ease with which technology allows it to be performed, may lead to the improper targeting and investigation of innocent members of legitimate “non-mainstream” groups.
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The application of the First Amendment to the technological evolution of relational surveillance should apply three principles. Specifically surveillance doctrine should:
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Recognize that traditional protections intended for formally-structured organizations may be ill-suited to the dynamic and emergent forms in which people associate to express their views today.
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Recognize that the use of sophisticated data analysis approaches may change the constitutional implications of government use of traffic data.
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Be sensitive to the extent to which a particular approach exposes important private associations to government scrutiny.