Association Isn't Free: Identities, Data Mining and the First Amendment

-- By JamieCrooks - 01 May 2013

Introduction

As we discussed in class, unless we take steps to secure our privacy, our activities on the Net can turn us into commodities in the marketplace of identities. My last paper discussed the Supreme Court’s recent decision in Sorrell v. IMS Health, which characterized the sale of customers’ prior purchase data as speech, thus setting us down the path towards a constitutionally required laissez faire approach to this market. I argued that the collection and sale of this data is more properly viewed as conduct; the mere fact that communication of information is involved should not lead to the conclusion that such personal information (particularly when bought and sold by others) is speech protected by the First Amendment.

Upon further reflection, however, I’ve come to believe that constitutional protection of identities (or at least of identifying data) may itself be able to provide the foundation for legal protection from data mining. Sorrell takes off the table statutory protection in the form of economic regulation. However, another line of First Amendment doctrine -- the Court’s cases protecting a right of expressive association -- may provide a hook for constitutional protection of our right to maintain control over our own identities.

The Dale Case: An Unlikely Ally

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court struck down a New Jersey law that prohibited groups deemed to be “places of public accommodation” from discriminating in their membership on the basis of sexual orientation. In holding that the state could not prohibit the Boy Scouts from excluding a homosexual member, the Court emphasized that “forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express.” Id. at 648. Acknowledging that the Boy Scouts were an “expressive association” subject to First Amendment protection, the Court found that “the presence of that [unwanted] person affects in a significant way the group's ability to advocate public or private viewpoints.” Id. The majority concluded that the Boy Scouts could exclude Dale for being openly gay because his very presence would “significantly burden the Boy Scouts’ desire to not promote homosexual conduct as a legitimate form of behavior.” Id. at 652.

What’s important about the case for our purposes here is what was not at issue. Dale was not arguing that he was entitled to say or do certain things while serving as a Boy Scout leader. While he was “open and honest about [his] sexual orientation,” id. at 653, he was not arguing that he be able to speak or act any differently than another troop leader. He merely wanted to be a Boy Scout. But the Court found that his very “presence in the Boy Scouts would . . . force the organization to send a message.” Id. In other words, in reaching its conclusion the Court transmogrified Dale from a person into speech, and because the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all,” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 645 (1943), the Boy Scouts could not be forced to abide him.

Expressive Identities

For what it’s worth, I think Dale was rightly decided. Putting to one side the difficulties this position creates for most antidiscrimination legislation -- would requiring the Scouts to admit black people force them to send a message about a belief in racial equality that they may not wish to send? -- there is no doubt that the membership of an organization can be a meaningful expression of that organization’s values. But what is the content of that expression?

I submit that it must be the excluded member’s identity. If it argues that merely being a homosexual “promote[s] homosexual conduct as a legitimate form of behavior,” then the Court proceeds on a theory that the mere act of being, believing, and associating is (for some purposes at least) expressive speech within the protection of the First Amendment. After all, the Amendment’s text says nothing of the “right to free association;” rather, this is thought to be a necessary antecedent and concomitant right to the freedom of speech.

If I am correct about the Court’s assumptions in expressive association cases such as Dale, then the First Amendment arguably protects not only our speech and expressive actions, but also who we are, what we’ve done, and what we believe in, at least to the extent that these elements of our identity are shared with others and used to express something (which, according to Sorrell, is exactly happens when data is sold). Insofar as data mining seeks to exploit the content of our identities, then, the First Amendment may offer protection against government exploitation of our identities.

The Future, and Freedom From Expression

The Fourth Amendment’s focus on places and privacy expectations belies most arguments that data about ourselves is protected as part of our “persons;” we have willingly shared most personal information manipulated by private and public data miners, and thus its use and control by another is not privacy violation. But insofar as the government constructs a mosaic of our identities and puts it to use for purposes we may object to, perhaps our consent to the initial dispersion of that data would not necessarily extinguish our First Amendment interest in this information.

I don’t pretend that such an argument would hold up in Court tomorrow, and there are certain areas -- e.g. mining by private actors -- that a First Amendment theory could not reach. But given the Court’s signal in Sorrell that it will not accept legislative regulation in this field, we need another theory if we believe that legal protection from data mining must supplement the technological solutions we discussed in class. Perhaps by making explicit our understanding that on some level, for some purposes, our identities are expression, we can develop a theory that will limit government intrusion into our lives and leave our identities and destinies in our hands.