Trackers That Make Phone Calls: Considering First Amendment Protection for Location Data

Article excerpt

TABLE OF CONTENTS
  I. INTRODUCTION
 II. THE USE OF LOCATION DATA IN SURVEILLANCE
     A. The Explosion in Cell Phone Surveillance
     B. The Forms of Mobile Location Data
        1. Historical Location Data
        2. Active, Prospective Location Data
        3. IP Addresses and Location
     C. The Mosaic of Location Data
III. LOCATION DATA AND GAPS IN CONSTITUTIONAL AND
     STATUTORY PRIVACY LAW
     A. Location Data and the Problems of ECPA
        1. The Fractured Regime of D and Hybrid Orders and
           Subpoenas
        2. "[T]he most secret court docket in America"
     B. Location Data and the Fourth Amendment
        1. United States v. Jones
        2. The Third-Party Doctrine
 IV. CONSIDERING FIRST AMENDMENT PROTECTIONS FOR
     LOCATION DATA
     A. Solove's Argument for First Amendment Limitations to
        Information Gathering
     B. Challenges to the First Amendment Criminal
        Procedural Approach
        1. The Creation of New Criminal Procedure?
        2. Notice, Standing, and the Overbroad Collection of
           Location Data
     C. Application of the First Amendment to Location Data
        1. Location Data and the Protection of Anonymity
        2. Location Data as Speech
        3. The Unsatisfying Relationship of Location Data and
           Associational Rights
V. CONCLUSION

I. INTRODUCTION

On October 1, 2011, about fifteen hundred protesters from the Occupy Wall Street ("Occupy") encampment in Zuccotti Park in Lower Manhattan marched north and east onto the Brooklyn Bridge. (1) Police arrested more than seven hundred demonstrators for disorderly conduct, including Malcolm Harris, a blogger and prominent Occupy participant. (2) Harris planned to contest his charge by claiming that the police had "led or escorted" him and other protesters onto the roadway, but the prosecution claimed that tweets posted to Harris's Twitter account during the march contradicted this story. (3) In January 2012, the New York County Assistant District Attorney served Twitter with a grand jury subpoena compelling it to turn over Harris's tweets. (4) Twitter notified Harris of the order, and Harris's subsequent motion to quash the subpoena failed. (5) Harris later pled guilty after the tweets revealed that he had heard police warnings not to march in the road. (6)

Struggles between political activists and police, as well as difficulties in balancing First Amendment values against public safety and order, are not new. (7) The Occupy movement used largely traditional tactics of direct political engagement: noisy, physical occupation of public space, disruptive marches, and civil disobedience. (8) Yet the movement began with an online call to action, (9) and its message spread widely over the Internet as participants posted accounts of protests and shared grainy smartphone videos of alleged police misconduct. (10) In recent years, law enforcement has responded to this union of physical protest and networked communication with a dual strategy of its own: arrests and traditional crowd control tactics, coupled with an increased focus on monitoring and controlling communications devices and infrastructure. (11)

More troublingly, however, these sociopolitical movements are occurring against a backdrop of increased government surveillance, both online (12) and in the real world. (13) Recent press reports indicate that the occupy movement was under surveillance as a part of federal counterterrorism investigations. (14) Individual Occupy participants further allege that police detained them to hamper their participation in the movement. (15) Using the rubric of "chilling effects," commentators have long recognized the risks that surveillance poses to robust political activity and free thought in a democratic society, as well as the double-edged role played by technology. (16) The same technologies embraced by Occupy to spread its message--particularly smartphones--are easily susceptible to widespread, detailed information collection by law enforcement. …