Oral arguments in ACLU v Clapper – II: How Surveillance affects Free Speech and the Freedom of Association

(As an addendum to the previous post, this piece explains exactly how much information can be gleaned from metadata surveillance.)

Recall that we are discussing the American Union for Civil Liberties’ challenge to the NSA’s bulk surveillance program, something that is directly relevant to India, in light of our own central monitoring system (CMS), that goes much further. In the last post, we discussed the implications of bulk surveillance upon privacy. But in addition to making the privacy argument, ACLU also argued that bulk surveillance violates the freedom of association, implicit in the American First Amendment, and upheld by a long line of cases. In India, of course, that right is expressly guaranteed by the Constitution.

In order to understand ACLU’s freedom of association argument, we must first look to the 1958 American Supreme Court decision of NAACP v Alabama. Recall that the deep South in the 1950s practiced large-scale and widespread de facto discrimination against coloured people. The National Association for the Advancement of Coloured People (NAACP) had opened an office in the southern state of Alabama, and had “given financial support and furnished legal assistance to Negro students seeking admission to the state university; and had supported a Negro boycott of the bus lines in Montgomery to compel the seating of passengers without regard to race.” Arguing that this was causing “irreparable injury to the property and civil rights” of the citizens of Alabama, the state imposed various requirements upon the NAACP, one of which was a requirement to disclose its membership lists. NAACP refused. The state filed a restraining order. NAACP challenged. The Court’s opinion, upholding the claims of the NAACP on behalf of its members, deserves to be quoted in full:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said… “a requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.” Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In constitutional law, NAACP’s argument is invoking a doctrine known as the “chilling effect“. Basically, the idea is that if certain pre-existing burdens – legal or otherwise – are attached to exercising certain rights in certain broadly-specified ways, then people, out of caution, fear or prudence – will simply refrain from effectively exercising those rights altogether. The classic example is – unsurprisingly – that of free speech. This (somewhat real) hypothetical ought to drive home the point: suppose there is a law that bans “offensive” speech. The government might be motivated by the lawful and legitimate interest in protecting historically ostracized communities from continuous, vituperative hate speech. Nonetheless, the word “offensive” is so inherently subjective and open to manipulation, that it will lead people – fearing prosecution – to self-censor and to stop engaging even in perfectly legal speech not contemplated by the statute.

The situation is not always as clear-cut as the one outlined above, and often needs an investigation of various social factors, combined with a fair-sized helping of judicial common sense. For instance, in Shelton v Tucker, an Arkansas law required all publicly-employed teachers to disclose the organizations which they had been part of over the previous five years. The state argued that the schools needed the information to make judgments on the competence of teachers before hiring or extending their contracts – certainly, a legitimate objective. There was nothing on the record to suggest that the information would be missed. Nonetheless, the Court held:

“Such interference with personal freedom is conspicuously accented when the teacher serves at the absolute will of those to whom the disclosure must be made — those who any year can terminate the teacher’s employment without bringing charges, without notice, without a hearing, without affording an opportunity to explain… the statute does not provide that the information it requires be kept confidential. Each school board is left free to deal with the information as it wishes. The record contains evidence to indicate that fear of public disclosure is neither theoretical nor groundless. Even if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy.”

Investigating whether or not there was a compelling state interest, the Court applied the familiar strict scrutiny test, and held:

“The statute requires a teacher to reveal the church to which he belongs, or to which he has given financial support. It requires him to disclose his political party, and every political organization to which he may have contributed over a five-year period. It requires him to list, without number, every conceivable kind of associational tie — social, professional, political, avocational, or religious. Many such relationships could have no possible bearing upon the teacher’s occupational competence or fitness… in a series of decisions, this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”

And in Local 1814 v The Waterfront Commission, the question was whether there could be compelled disclosure of all of a labour union’s members who had authorized payroll deductions for contributions to a political action committee, for the purposes of investigating coercion. The Court of Appeals held:

“We believe that compelled disclosure of the Fund’s contributors under the circumstances of this case would give rise to a chilling effect similar to the one recognized by the Supreme Court in Shelton v. Tucker, supra. The Waterfront Commission has undeniably broad powers of control over waterfront labor. It has the responsibility of supervising the hiring and assignment of all longshoremen. The Commission has the power to cause longshoremen to lose their jobs by removing or suspending them from the longshoremen’s register… Refusal to answer questions or produce evidence in a Commission investigation may be grounds for revocation or suspension from the register… we agree with the District Court that there is a substantial danger that longshoremen will perceive a connection between contributing to the Fund and being called before the all-powerful Commission. Some chilling effect on some contributors would be inevitable.”

Each of these three cases were cited and relied on by ACLU before the District Court. The argument is now self-evident: bulk surveillance of telephony metadata, as we discussed in the previous post, over time reveals patterns of data that, in turn, reveal associational information about people. The government did not deny this – in fact, it could not deny it, considering that its entire case was based on just how effectively bulk surveillance did reveal associational patterns! The question then, was two-pronged: whether there was a chilling effect, and whether a compelling state interest justified the consequent violation of the First Amendment’s freedom of association.

The judge asked ACLU what evidence there was to demonstrate a chill (and indeed, the government, in its response, would contend that there was no evidence demonstrating that anybody had been chilled). ACLU argued that none of the cited cases had relied upon evidence demonstrating a chill – in fact, bringing forth such evidence would essentially involve proving a negative. You would have to effectively prove that someone who would have otherwise spoken to you didn’t speak to you because of the chilling effect – and how could you ever do that? This was why the Supreme Court and the Court of Appeals had adopted the common sense approach – and surely, if the entire society was subjected to surveillance, that would certainly involve the unpopular, dissident (yet perfectly legal) groups that are the inevitable victims of any chilling effect. That is to say, if I know that all my associational patterns are known to the government, I might well consciously or subconsciously refrain from associating with unpopular  or dissident groups.

The government also argued that the First Amendment wasn’t implicated in this case, because it wasn’t directed at ACLU. The purpose was’t to penalize expressive activity. The judge nonetheless enquired whether a good faith investigation could – nonetheless – impair the freedom of association (the state responded that it couldn’t, in this case); and in its reply, ACLU argued that even an indirect burden on an expressive activity, or an associational activity, requires exacting scrutiny. As Alexander Abdo, counsel for ACLU, ended by observing:

“Imagine that the government comes to your house each night and compels you to hand in all your call records for that day. Is that not a clear violation of the Fourth and First Amendments?”

By corollary, of course, this entire argument applies with equal force to free expression (19(1)(a)). There are, therefore, two questions that we must consider: to what extent do Articles 19(1)(a) and 19(1)(c) embody the doctrine of the chilling effect; and what standard of scrutiny is applicable under 19(2) and 19(4). There is a substantial amount of case law on how to interpret the “reasonable restrictions in the interests of… the sovereignty and integrity of India…” limitations, and most of it points towards a general proportionality test. Once again, though, it is at least arguable that the sheer scale and extent of bulk surveillance calls for more exacting scrutiny; and in any event, even under the proportionality test, the government would need to produce at least substantial evidence to show that it cannot achieve its objectives through less intrusive surveillance.

To sum up, then: bulk surveillance implicates three crucial constitutional rights: privacy (21), expression (19(1)(a)) and association (19(1)(c)). The oral arguments in ACLU v Clapper reveal the numerous complexities involved, and point the way forward towards the debate that must be had in India: what conception of privacy does our Constitution commit us to? Does bulk surveillance serve a compelling state interest? Could the same objectives be achieved by a narrower tailoring? Does bulk surveillance cause a chilling effect upon expression and association? And if it does, when and how – if ever – can it be justified?