Mass Surveillance and the Limitations of the First Amendment

One of the key purposes of the First Amendment is to keep government accountable by safeguarding the press. The traditional conception of the First Amendment could not have possibly accounted for the ways in which technology has transformed the nature of communication and expression. Mass surveillance destroys the freedom of the press and the freedom of expression; the law must recognize that before it can be equipped to aid individuals.

Nearly fifty years have passed since New York Times Co. v. the United States, which affirmed the First Amendment right of the press to publish confidential documents about the United States’ strategy in the Vietnam War.link text That decision established that prior restraints are impermissible absent proof that publication will surely result in direct, immediate and irreparable damage to our nation.link text The Court’s holding underlies a tension in American jurisprudence: the government’s interest in maintaining secrecy to protect the nation versus the duty of the press to inform the public and hold government accountable.link text Although the First Amendment might be equipped to deal with this tension, the last half-century has ushered technological changes for which the First Amendment is not at all prepared.

Never before has the government had the ability to know anything that anybody is saying at any time and been willing to exercise that ability.link text The First Amendment was conceived before the Internet, the invention of the search engine, and the rise of powerful technology giants like Microsoft that tip the balance of power between the government and the governed.link text Thanks to technological advances, intelligence agencies like the NSA can now continuously collect staggering amounts of data, retain it indefinitely, and analyze it with powerful tools that can identify patterns and connections nearly instantaneously.link text The phone in your pocket is a surveillance device that permits the tracking of your movements, purchases, and associations, allowing an analyst to readily deduce your intellectual interests, religious views, politics, and intimate partners.link text For example, during the demonstrations that preceded the 2014 revolution in the Ukraine, protesters attending a pro-democracy demonstration in Kiev received this text message: “Dear subscriber, you are registered as a participant in a mass riot.link text”

The problem is that this level of surveillance erodes government accountability. A person who believes she’s being monitored may hesitate before participating in a political demonstration, visiting a website the government is thought to disfavor, or following an unpopular political group on social media.link text An individual who has lost confidence in the promise of anonymity may hesitate before speaking to a reporter.link text In effect, mass surveillance transforms the way we engage with one another in society. It creates fear, and a pressure to conform that undermines individual dignity. But more important, mass surveillance places powerful personal information – information that would persuade an individual to cease his criticism of or opposition to the government – in the hands of the government. The state can use its vast data to identify dissidents before they have the opportunity to state their claim; it can use its data to see potentially damaging publications before the world does, which seriously undermines government accountability.

Arguments against mass surveillance based on government accountability could have more sway than more prevalent lines of reasoning. Generally, questions regarding the ability of speakers to exclude the government from our communications have been treated by courts as governed entirely by the Fourth Amendment.link text The Fourth Amendment has proven not equipped to protect individuals from the intrusions of the government in the advent of technological advancements. Unfortunately, the First Amendment arguments that have been asserted have not gained significant traction. Some have argued that mass surveillance interferes with the freedom of thought necessary for intellectual privacy, and some have argued that it violates the freedom of association, but many of these arguments are rejected because they do not show that mass surveillance prohibits speech.link text In contrast, an argument focused on how mass surveillance gives the government so much leverage that individuals are afraid to express themselves would have more thrust because it would show that mass surveillance could prohibit speech.

In essence, it is impossible to know how the framers would have interpreted the First Amendment to apply to the state of technology and mass surveillance today because they could not have conceived of those developments. However, we do know that the main purpose of the First Amendment is to ensure that the government answers to its people. In keeping with that purpose, advocates for restricting the government’s abilities to conduct mass surveillance should lead with the claim that mass surveillance does restrain speech because most people have some intimate secrets they cannot afford for others to know, and in many cases the government possesses this information, and the leverage that possessing this information creates means that expression is not free at all.

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