Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding

II. PROTECTING FUTURE AND PAST ASSOCIATIONAL FREEDOM The concurrences in Jones raised concerns about the third party doctrine and raised questions regarding what might be learned from data, because those concerns and questions are part of backward-looking surveillance. The Court was calling out that such surveillance threatens associational freedom, but we lack ways to manage this new threat. (185) We can look backward and harm associational freedom as much, if not more, than when looking forward. This Part explains how the procedural protections for forward-looking surveillance reveal why and how we should protect associational freedom from backward-looking surveillance. A. Associational Freedom and the Protection of Future Acts No one and no policy supports law enforcement attaching a device to track someone's every move. (186) Yet, after a warrant has issued, law enforcement may do just that for a limited time. In simplest terms, United States v. Jones addressed such a problem. The government had used a technique, failed to follow the warrant, and so violated the Fourth Amendment. (187) As Amar and Solove have argued, when surveillance and First Amendment concerns intersect is precisely when such procedures are needed. (188) Furthermore, "if there are good reasons for suspecting strong and systematic over-zealousness on the part of certain segments of executive officialdom," preclearance by the judiciary may be required. (189) Both concerns are present with bugging, tracking, and wiretapping. All require warrant procedures, because they mitigate the potential harms to associational freedom. (190) When forward-looking surveillance intersects with associational freedom, surveillance must be limited or the purposes of the First and Fourth Amendment are gutted. Warrant procedure is central to how we manage surveillance and civil liberties. As the Court said in Berger, "[t]he purpose of the probable-cause requirement of the Fourth Amendment [is] to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed." (191) Lack of prior review means no check and balance is even possible. A "neutral and detached authority" must evaluate the warrant application to see whether probable cause exists before issuing the warrant. (192) As the Court said a year later in Katz, this review is required because of surveillance's secret nature and because asking permission later would lead to "hindsight" bias rather than "objective predetermination" that the surveillance should be permitted. (193) Anything other than prior review leaves constitutional protection at "the discretion of the police." (194) When law enforcement can watch and record us without stating specifics of a "particular offense" or the property to be seized--in other words, without establishing probable cause--the order works as a general warrant. (195) A ban on practices that operate as general warrants is a mainstay of Fourth Amendment law. (196) Allowing officers to bug someone for sixty days "is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause." (197) Without a termination date surveillance can persist even after the thing sought has been found. (198) Lack of notice "permits uncontested entry without any showing of exigent circumstances." (199) The secret recording of someone means they would never know that a search or seizure occurred as they would with other searches and seizures. (200) And, because there is not a return on the warrant, the process for giving up the information gathered, law enforcement could use "seized conversations of innocent as well as guilty parties." (201) Together, these practices enable a "blanket grant of permission to eavesdrop" in part because of the lack of "adequate judicial supervision or protective procedures." (202) These types of practices were rejected in Anglo-American jurisprudence beginning with Wilkes v. …