Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance

Katherine J. Strandburg, New York University School of Law

Abstract

Recent controversies about the National Security Agency's warrantless wiretapping of international calls have somewhat overshadowed equally disturbing allegations that the government has acquired access to a huge database of domestic call traffic data, revealing information about times, dates, and numbers called. While communication content traditionally has been the primary focus of concern about overreaching government surveillance, law enforcement officials are increasingly interested in using sophisticated computer analysis of non-content traffic data to "map" networks of associations. This increased focus on uncovering networks of association comes at precisely the time when new digital technologies are beginning to facilitate import new forms of emergent association which have great potential to enhance the democratic participation of citizens. Despite the rising importance of digitally-mediated association, current Fourth Amendment and statutory schemes provide only very weak checks on government use of increasingly available traffic data. The potential to chill association through overreaching relational surveillance is great. This Article argues that the First Amendment's freedom of association guarantees can and do provide a proper framework for regulating relational surveillance and suggests how the First Amendment's freedom of association guarantees might apply to particular forms of analysis of traffic data.