Sep 222010
 September 22, 2010  Surveillance

Julian Sanchez writes about the interface of “privacy” and First Amendment protections in light of the recently released OIG report on FBI surveillance of peaceful political protesters. Julian writes, in part:

….. the OIG suggests that the retention in FBI records of personally identifiable information about citizens’ political speech, unrelated to any legitimate investigation into suspected violations of federal law, may well have violated the Privacy Act. But if we wanted to pick semantic nits, we could surely make the argument that this is not really an invasion of “privacy” as traditionally conceived—and certainly not as conceived by our courts. The gatherings don’t appear to have been very large—the source was able to get the names and ages of all present—but they were, in principle, announced on the Web and open to the public.

Fortunately, the top lawyer at the Pittsburgh office appears to have been duly appalled when he discovered what had been done, and made sure the agents in the office got a refresher training on the proper and improper uses of informants. But as a thought experiment, suppose this sort of thing were routine. Suppose that any “public” political meeting, at least for political views regarded as out of the mainstream, stood a good chance of being attended by a clandestine government informant, who would record the names of the participants and what each of them said, to be filed away in a database indefinitely. Would you think twice before attending? If so, it suggests that the limits on state surveillance of the population appropriate to a free and democratic society are not exhausted by those aimed at protecting “privacy” in the familiar sense.

Read the above in context on [email protected].

I cannot recall the precise source, but I recall law professor Daniel Solove writing about how “privacy” has implications for First Amendment speech. I thought, though, that the courts already recognized the relationship and was surprised to read Julian’s comment that the courts do not think this way when they think of “privacy” violations.

But I had to laugh at Julian’s “thought experiment,” as what he describes is exactly what many of us lived through during the years of civil rights protests and anti-war activities. And the answer for us was “No, that’s not going to stop us or scare us off.” Indeed, I remember turning to one informant and saying, “Would you like me to smile for the camera?”

Could others be frightened off or have their speech chilled by such surveillance? Absolutely. Particularly if they were part of a group dealing with particular health concerns or sexual orientation, or any one of a number of issues. But I don’t think that the greatest risk here is to political speech. After all, some folks will just throw a sheet over their heads and continue on their way, while others, who may be political candidates, do not appear embarrassed to suggest that people should arm themselves if the elections don’t go the way they want them to go.

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