90 Notre Dame L. Rev. 579 (2014-2015)
Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding

handle is hein.journals/tndl90 and id is 603 raw text is: 









   CONSTITUTIONAL LIMITS ON SURVEILLANCE:

        ASSOCIATIONAL FREEDOM IN THE AGE

                       OF DATA HOARDING


                               Deven tR Desai*

INTRODUCTION ..................................................... 580
     I. THE CONSTITUTION FAVORS ENABLING AND MAKING
        ASSOCIATIONS ..............................................    591
        A. Associational Freedom Protects Acts Other than Speech ......   592
        B. Associational Freedom Protects Public Acts ................  600
    II. PROTECTING FUTURE AND PAST ASSOCIATIONAL FREEDOM ...           611
        A. Associational Freedom and the Protection of Future Acts ....   612
        B. Tracking the Past Threatens Associational Freedom ........  616
        C. How Surveillance Chills and Data Tempts ................    619
   III. DISCIPLINE AND DATA HOARDING ............................ 625
        A. Against General Warrants for Data ......................    625
        B. Associational Freedom in Perspective .....................  629
CONCLUSION ....................................................... 631

                                  ABSTRACT
     Protecting associational freedom is a core, independent yet unappreciated part of the Fourth
Amendment. New surveillance techniques threaten that freedom. Surveillance is no longer pri-
marly forward looking. Today, changing technology allows law enforcement and intelligence
services to obtain the same, if not more, information about all of us by looking backward. This
shift massively expands the government's ability to examine, investigate, and deter exercise of the
freedom of association.

      2014 Deven R. Desai. Individuals and nonprofit institutions may reproduce and
distribute copies of this Article in any format at or below cost, for educational purposes, so
long as each copy identifies the author, provides a citation to the Notre Dame Law Review,
and includes this provision in the copyright notice.
   *   Associate Professor of Law and Ethics, Georgia Institute of Technology, Scheller
College of Business; J.D. Yale Law School; former Academic Research Counsel, Google,
Inc. This Article has benefitted from the input of Derek Bambauer, Jane Bambauer,
Ashutosh Bhagwat, Jack Chin, Julie Cohen, Brett Frischmann, Chris Hoofnagle, Orin Kerr,
Paul Ohm, Christopher Slobogin, Daniel Solove, and Peter Swire. The attendees of Privacy
Law Scholars Conference 2013 at U.C. Berkeley provided valuable feedback as well. Last,
I'd be remiss if I did not thank the Notre Dame Law Review for its excellent editing and
support for this Article. I thank all for their help, and, of course, all errors are mine.

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