Recent events have combined to bring of the prospect of using communications traffic data to ferret out suspect groups and investigate their membership and structure to the forefront of debate. While such “relational surveillance” has been around for years, efforts are being made to update traffic analysis to incorporate insights from “social network analysis” -- a means of analyzing relational structures developed by sociologists.1-13 Interest in employing social network analysis for law enforcement purposes was given a huge boost after September 11, 2001 when attention focused on tracking terrorist networks.5,7,9,11,12,14-17 Traffic data, when stored, aggregated, and analyzed using sophisticated computer algorithms, contains far more “information” than is commonly appreciated. Increasing computational capabilities make it possible to apply computerized analysis to larger and larger sets of traffic data and raise the possibility of employing data mining techniques to uncover “suspicious” patterns of association. Increasing use of the Internet and other digital communications means that traffic data is increasingly recorded by communication intermediaries. The availability of this data facilitates relational surveillance.1,11,18-22
The Internet, wireless communication, and locational technology have also transformed the ways in which civic and political associations operate.23-30 More and more political and civic “work” is performed not by traditional face-to-face associations with well-defined members, policies, and goals, but by decentralized, often transient, networks of individuals associating primarily electronically and with policies and goals defined synergistically with the formation of the emergent association itself. Relational surveillance, particularly in the form of a search for “suspicious” patterns of association, has great potential to chill this increasingly important type of associational activity.
Historically, both Fourth Amendment and statutory protections from government surveillance have been strongest for communication content, offering significantly decreased protection for traffic data, which reveals who is talking to whom.19,20-22,31-37 Freedom of association doctrine has the potential to provide strong protection against overreaching relational surveillance, but so far has focused on protecting the rights of traditional associations.38-41 This Chapter considers how relational surveillance must be regulated to preserve the growing role of emergent associations in politics and civic society. It concludes that First Amendment freedom of association provides the strongest basis for such regulation,40,42 and extends the First Amendment analysis into the age of electronic communications by extracting principles from Fourth Amendment doctrine about how surveillance regulation must respond to technological change.
- freedom of association,
- First Amendment,
- Fourth Amendment
Available at: http://works.bepress.com/katherine_strandburg/11/