The Role of the Fourth Amendment in Protecting Freedom of Association in the Find my Friends Era

By Halley Dannemiller, Vol. 22 Staff Writer

We rely on apps like Find my Friends daily to keep tabs on family and loved ones, but did you know that this information could be accessed by law enforcement to place you at the scene of a crime? The ready availability of such time-stamped locational data poses a serious threat to the freedom of association that we so often take for granted as Americans.

While freedom of association is not a right directly stated in the text of the First Amendment, the U. S. Supreme Court has given it Constitutional protection because of the support it provides to other activities which are expressly granted protection by that Amendment. Specifically, “the Court has recognized that compelling disclosure of one’s associations can inhibit exercising [other] protected First Amendment rights.” This potential restriction on the exercise of First Amendment rights heavily influenced the Court’s recent decision in Carpenter v. United States.

The Protections

Traditionally, the Fourth Amendment’s protection against unreasonable searches and seizures has centered on property interests and has been based on a trespassory test. However, in the digital age the Court has struggled with how to preserve individual’s locational privacy interests protected by the Fourth Amendment in the absence of a physical government intrusion.

A prime example of this is the Carpenter case. The Supreme Court was faced with the issue of whether law enforcement needed a warrant to access cell site location information (“CSLI”). CSLI is the information a cellphone collects by pinging nearby cell towers, a function the phone will perform simply by being turned on. The Court ruled in that case that “an individual maintains a legitimate expectation of privacy in the record of their physical movements as captured through [cell site location information] CSLI.” 

In holding that law enforcement officers could not obtain CSLI in the absence of a warrant without violating the Fourth Amendment, the Court expressed concerns related to the freedom of association. The Court stated that such “time-stamped data provides an intimate window into a person’s life” which reveals through their particular movements their “familial, political, professional, religious, and sexual associations.”

Allowing such comprehensive data to be easily retrieved by law enforcement poses a clear threat to the freedoms guaranteed by the First Amendment. CSLI and other information such as cellphone or car GPS data can show exactly where any person has been at any given time and how long they remain in one place.

The Threats

As stated by Justice Sotomayor in her concurrence in United States v. Jones, “[a]wareness that the Government may be watching chills associational and expressive freedoms.” If the Court had come out on the other side in Carpenter, law enforcement officials would be allowed to access CSLI without a warrant. That is the exact kind of permeating government surveillance Justice Sotomayor was concerned would limit the First Amendment freedom of association.

However, even given these concerns, not everyone on the Court agreed with the majority opinion in Carpenter. Four of the Justice’s dissented arguing that (1) the police should be able to access CSLI without a warrant based on the Third Party Doctrine and (2) that the Fourth Amendment protects physical property not privacy.

The Third Party Doctrine holds that information one voluntarily gives over to third parties is not protected by the Fourth Amendment. Essentially, if something falls within the Third Party Doctrine, law enforcement may obtain that information without a warrant and not be in violation of the Fourth Amendment.

The dissenting judges in Carpenter argued that the Third Party Doctrine prohibits CSLI from Fourth Amendment protection since that data is constantly being shared with phone companies. Additionally, by adopting a property-based view of the Fourth Amendment, they would render it powerless as a protection against government intrusions on locational privacy. These two arguments would substantially limit the Fourth Amendment’s capability to protect the privacy interests granted by the First.

The Future  

Allowing warrantless access to CSLI by law enforcement agents pursuant to the Third Party Doctrine would threaten the associational rights protected by the First Amendment by essentially “compelling disclosure of one’s associations”. These associational rights are important to a functioning democracy as they preserve the “right to associate for expressive, often political purposes.” Allowing the government to access CSLI or other cell phone GPS data without a warrant therefore threatens another important First Amendment right, the freedom to dissent.

The freedom of association also functions to protect against government surveillance of one’s private associations. This “right to maintain private associations without interference” would be seriously threatened if the Fourth Amendment protections for locational privacy granted by Carpenter ceased to exist.

The freedom of association is instrumental in facilitating many other First Amendment rights which are imperative to a functioning democracy. These rights are especially crucial in the context of criminal defendants, which is why the Court’s ruling in Carpenter is so important.

In the future, if this issue comes before the Court again there is a chance that this layer of protection could be stripped given that three of the four dissenting justices in Carpenter (Justice Thomas, Justice Gorsuch, and Justice Alito) remain on the bench. Without the protections granted by Carpenter, both in terms of locational privacy and the freedom of association, citizens could be suspected of involvement in criminal activity simply by locational association.

Carpenter encapsulates the role of the Fourth Amendment in preserving the freedom’s granted by the First. The record of a person’s movements is not something the government should be able to access under the First Amendment, but without the protections of the Fourth, it is hard to imagine how the right to freedom of association can be maintained.