Membership Lists, Metadata, and Freedom of Association's Specificity Requirement
Symposium on NSA Surveillance: Issues of Security, Privacy, and Civil Liberty, 10 ISJLP 327 (2014)
40 Pages Posted: 17 Dec 2014
Date Written: December 15, 2014
Revelations of massive aggregation of telephone call records by the NSA have led to widespread debate about the legality, effectiveness, and normative desirability of such broad-based government data collection. This article contends that mass collection of so-called “metadata” as a means to investigate associations impinges on the First Amendment right to associate freely. Such programs thus should, like government demands for membership lists of expressive associations, be subjected to First Amendment scrutiny. While the Fourth Amendment has been the focus of much of the debate about metadata surveillance, the right to freedom of association may provide independent and potentially stronger protection against overreaching government metadata mining. This article contends that the First Amendment subjects metadata surveillance to specificity requirements somewhat akin to the Fourth Amendment’s particularity requirements and that the NSA’s Section 215 data collection does not appear to meet those requirements.
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