Surveillance of Emergent Associations: Freedom of Association in a Network Society

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Surveillance of Emergent Associations Freedom
of Association in a Network Society

• Katherine J. Strandburg
• DePaul University College of Law

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OUTLINE

• NETWORK EFFECTS
• A. EMERGENT ASSOCIATION
• B. TRAFFIC DATA TRACKING
• C. SOCIAL NETWORK ANALYSIS
• THE PARADOX OF CURRENT LAW
• A. SURVEILLANCE LAWS NEGLECT OF
  TRAFFIC DATA
• B. FIRST AMENDMENTS STRONG PROTECTION
  OF ASSOCIATIONS
• III. FOURTH AMENDMENT LESSONS FOR FREEDOM OF
  ASSOCIATION
• IV. APPLICATIONS TO NETWORK ANALYSIS OF TRAFFIC
  DATA

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I.A. NETWORK EFFECTS EMERGENT ASSOCIATIONS

• Internet
• Wireless technology
• Locational technology
• Social networks
• Video and audio technology
• New potential for association
• - political, civic, social, educational, etc.

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I. NETWORK EFFECTS

• EMERGENT ASSOCIATIONS
• Can form rapidly and cheaply
• Link w/o rt distance, all sizes possible
• Strategies can self-organize
• Membership not specified or defined, pseudonymous
• ENORMOUS NEW POTENTIAL FOR EXPRESSIVE ASSOCIATION

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I.B. NETWORK EFFECTS TRAFFIC DATA

• BUT . . . .
• Takes place through communication intermediaries
• Spontaneous association is recorded in voluminous
  amounts of traffic data
• Telephone records
• Internet traffic logs
• Location tracking, etc.
• New technologies of association also used by
  malevolent groups terrorist, pedophiles
• INCREASING RELATIONAL SURVEILLANCE

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I.C. NETWORK EFFECTS NETWORK ANALYSIS

• RELATIONAL SURVEILLANCE THROUGH NETWORK ANALYSIS
  OF TRAFFIC DATA
• Social Network Analysis and Network Science
• Use relational patterns to determine
• Structure of organization
• Divide populations into social groups
• Understand roles played by different individuals
• Using sophisticated data mining-type algorithms
  and large datasets

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I.C. NETWORK ANALYSIS

• RELATIONAL SURVEILLANCE THROUGH NETWORK ANALYSIS
  OF TRAFFIC DATA
• Investigating structure of known networks
• Targeted link analysis
• - investigate a suspicious individuals
  associational affiliations
• Pattern-based analysis
• - uncover associations using relational
  patterns
• - match to suspicious patterns

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I. NETWORK EFFECTS

• PROBLEMS W/ RELATIONAL SURVEILLANCE USING NETWORK
  ANALYSIS
• EXPOSE LEGITIMATE ASSOCIATIONS
• TARGETED LINK ANALYSIS EXPOSES ASSOCIATIONS OF
  NON-TARGETS
• MANY PROBLEMS WITH ACCURACY
• Problems are deep, esp. for pattern analysis, do
  malevolent associations really look different?
• See many discussions of issues with data mining
  (Slobogin, Swire)

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OUTLINE

• NETWORK EFFECTS
• A. EMERGENT ASSOCIATION
• B. RELATIONAL SURVEILLANCE
• THE PARADOX OF CURRENT LAW
• A. SURVEILLANCE LAWS NEGLECT OF
  TRAFFIC DATA
• B. FIRST AMENDMENTS STRONG PROTECTION
  OF ASSOCIATIONS
• III. FOURTH AMENDMENT LESSONS FOR FREEDOM OF
  ASSOCIATION
• IV. APPLICATIONS TO NETWORK ANALYSIS OF TRAFFIC
  DATA

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II.A. PARADOX OF CURRENT LAW

• FOURTH AMENDMENT virtually no protection to
  traffic data
• - Focus on individual privacy
• Third party doctrine
• Content/non-content distinction
• interception/stored records distinction
• SURVEILLANCE STATUTES only a little better
• Traffic data usually available by showing
  relevance to a law enforcement or terrorism
  investigation
• sometimes little or no judicial oversight
• NETWORK ANALYSIS MAKES LOTS OF DATA POTENTIALLY
  RELEVANT

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II.B. PARADOX OF CURRENT LAW

• FIRST AMENDMENT strong protection for
  expressive association
• - Boy Scouts v. Dale broad definition of
  expressive association deferential approach to
  association perceptions of harm
• NAACP v. Alabama compelled disclosure of
  membership list requires strict scrutiny under
  First Amendment
• Sheldon v. Tucker broad, indiscriminate
  disclosure of memberships cannot be required
  disclosure must be tailored to to compelling
  govt interest

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II. PARADOX OF CURRENT LAW

• ? Relational Surveillance Using Network Analysis
  
• Disclosure Of Association Membership Lists, Esp.
  For EMERGENT ASSOCIATIONS
• Relational Surveillance Threatens to Chill
  Emergent (and other) Association b/c Fourth
  Amendment fails to protect associational
  information
• First Amendment has been applied only to
  traditional associations

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II. PARADOX OF CURRENT LAW

• NEED FIRST AMENDMENT APPROACH TO RELATIONAL
  SURVEILLANCE (CF. SOLOVE)
• NEED TO UPDATE FREEDOM OF ASSOCIATION DOCTRINE TO
  REFLECT CURRENT ASSOCIATIONAL PATTERNS AND
  DISCLOSURE MECHANISMS

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OUTLINE

• NETWORK EFFECTS
• A. EMERGENT ASSOCIATION
• B. RELATIONAL SURVEILLANCE
• THE PARADOX OF CURRENT LAW
• A. SURVEILLANCE LAWS NEGLECT OF
  TRAFFIC DATA
• B. FIRST AMENDMENTS STRONG PROTECTION
  OF ASSOCIATIONS
• III. FOURTH AMENDMENT LESSONS FOR FREEDOM OF
  ASSOCIATION
• IV. APPLICATIONS TO NETWORK ANALYSIS OF TRAFFIC
  DATA

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III. FOURTH AMENDMENT LESSONS

• HOW TO ADAPT TO EVOLVING TECHNOLOGY ?
• Law must adapt to change of situs of socially
  important activity (Katz)
• Law must recognize that surveillance involves
  both gathering and analyzing data both can
  implicate Constitutional values (Kyllo)
• Intrusiveness of surveillance depends on
  discrimination between legitimate and
  illegitimate activity (dog sniff cf. Kyllo)

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III. FOURTH AMENDMENT LESSONS

• FREEDOM OF ASSOCIATION TEST for RELATIONAL
  SURVEILLANCE
• Does the surveillance serve a compelling
  interest?
• Is analysis sufficiently accurate in light of
  potential burden on association?
• Is analysis sufficiently closely related to the
  compelling interest in light of potential burden
  on association?

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OUTLINE

• NETWORK EFFECTS
• A. EMERGENT ASSOCIATION
• B. RELATIONAL SURVEILLANCE
• THE PARADOX OF CURRENT LAW
• A. SURVEILLANCE LAWS NEGLECT OF
  TRAFFIC DATA
• B. FIRST AMENDMENTS STRONG PROTECTION
  OF ASSOCIATIONS
• III. FOURTH AMENDMENT LESSONS FOR FREEDOM OF
  ASSOCIATION
• IV. APPLICATIONS TO NETWORK ANALYSIS OF TRAFFIC
  DATA

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IV. APPLICATIONS TO NETWORK ANALYSIS

• Targeted Link Analysis
• Involves traffic data from target plus connected
  individuals
• For Target exposes numerous associations
  indiscriminately
• - Cf. Sheldon v. Tucker high standard
  should be required (probable cause?)
• For others less intrusive, but also less
  relevant (depending on how many links away)
• - Relevance not enough
• - Reasonable suspicion?

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IV. APPLICATIONS TO NETWORK ANALYSIS

• Pattern-Based Analysis
• Involves traffic data from numerous individuals
• Exposes broad swath of associations (mostly
  innocent)
• Ability to distinguish malevolent associations
  questionable at best
• DOES NOT MEET FIRST AMENDMENT STANDARDS
• NOT SUBSTANTIALLY RELATED

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IV. CONCLUSIONS

• Associations poised to play increasingly
  important role in democracy and culture b/c of
  Internet, etc.
• Traffic data increasingly permits relational
  tracking
• Fourth Amendment fails to protect traffic data
  b/c focus is on individual privacy
• Freedom of association strongly protects
  traditional associations
• Need to update freedom of association law to
  regulate relational surveillance using traffic
  data

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IV. CONCLUSIONS

• Pattern-based network analysis
• Does not meet 1st Amendment standards
• Targeted Link Analysis
• Should require probable cause for target
• Reasonable suspicion for links
• Individual traffic data
• Case by case analysis
• some cases may implicate First Amendment
  prohibition