Don’t (Tower) Dump on Freedom of Association: Protest Surveillance Under the First and Fourth Amendments

Ana Pajar Blinder | November 25, 2021

Government surveillance is ubiquitous in the United States and can range from the seemingly innocuous to intensely intrusive. Recently, the surveillance of protestors—such as those protesting against George Floyd’s murder by a police officer—has received widespread attention in the media and in activist circles, but has yet to be successfully challenged in the courts. Tower dumps, the acquisition of location data of cell phones connected to specific cell towers, are controversial law enforcement tools that can be used to identify demonstrators. This Comment argues that the insufficiency of Fourth Amendment protections for protesters being surveilled by government actors—by tactics such as tower dumps—can be solved by conducting independent First Amendment analyses. A multi-factor balancing test can assist the courts as they consider the scope and pervasiveness of technology such as tower dumps against the potential chilling effects on First Amendment-protected activity, providing a framework to assess the constitutionality of surveillance technology used during mass protests.