CCP: Warrantless Location Tracking Imperils Right to Free Association

August 15, 2017   •  By Matt Nese   •    •  ,
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The Supreme Court case Carpenter v. US has important implications for the First Amendment

Alexandria, VA – The Center for Competitive Politics (CCP) and four other organizations from across the ideological spectrum filed a brief Monday in support of the plaintiff in Carpenter v. United States, a case challenging warrantless collection of cell phone location data. While the basis of the challenge is the Fourth Amendment, the brief informs the Supreme Court that First Amendment associational rights are also at stake. The Supreme Court agreed to hear the case on June 5.

The brief was joined by the Center for Media Justice, Color Of Change, Americans for Prosperity Foundation, and Tea Party Patriots.

The ability to precisely track citizens allows the government to effectively surveil an individual’s civic and political life. That ability, if unconstrained by a warrant requirement, threatens the right to free association.

“The ability to pinpoint a person’s location across time makes it possible for the government to track social and political relationships with astonishing accuracy,” said CCP Legal Director Allen Dickerson. “A warrant requirement is a straightforward way to prevent unreasonable or politically-motivated inquiries into individuals’ private associations.”

For over half a century, the Supreme Court has recognized that freedom of association is “protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” (Bates v. City of Little Rock, 1960). It has repeatedly recognized that “First Amendment freedoms need breathing space to survive,” (NAACP v. Button, 1963) and that whenever a “state attempts to make inquiries about a person’s beliefs or associations, its power is limited by the First Amendment.” (Baird v. State Bar of Arizona, 1971).

As CCP’s brief explains, “The warrantless collection of geolocational data from third parties risks short-circuiting these precedents and undermining the right to private association. This information offers governments the ability to reverse-engineer not merely groups’ membership lists, but to also identify people with sympathy for or a passing interest in an organization’s aims. Left unchecked, this power will discourage Americans from engaging in public gatherings and private meetings of all types, chilling both social and political association and the collective speech it fosters.”

The solution is simple. Requiring the government to obtain a warrant before accessing geolocational data will satisfy the petitioner’s Fourth Amendment concerns and secure the First Amendment right to free association.

The Center for Competitive Politics (CCP) is America’s largest nonprofit working solely to promote and defend First Amendment rights to free political speech, press, assembly, and petition. The Center for Media Justice is a national racial justice network hub taking action for 21st century media and technology rights, access and representation. Color Of Change represents over one million members and is the nation’s largest online racial justice organization. It works to move decision-makers in corporations and government to create a more human and less hostile world for Black people in America. Americans for Prosperity Foundation is a nonprofit dedicated to promoting limited government and free markets. Tea Party Patriots represents over 3 million supporters and donors and over 800 locally affiliated groups, and works to protect personal and economic freedoms.

To read the brief, click here. To read the Sixth Circuit’s opinion, click here.

Matt Nese

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