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Analysis

Rolling Back the Post-9/11 Surveillance State

Restoring key privacy protections will benefit both national security and civil liberties.

August 25, 2021
surveillance
Witthaya Prasongsin/Ihsan Deeb/Christine Kaporin/Natalie Magee/EyeEm
View the entire 9/11 at 20 series

Six weeks after the attacks of 9/11, Congress passed the USA Patriot Act. The 131-page law was enacted without amend­ment and with little dissent three days after its intro­duc­tion. It was the open­ing volley in a series of meas­ures that vastly expan­ded the U.S. govern­ment’s abil­ity to conduct domestic surveil­lance. Over the same period, dramatic advances in tech­no­logy further bolstered the govern­ment’s spying powers and rendered decades-old legal protec­tions obsol­ete.

As a result of these changes, we have seen a trans­form­a­tion, in two short decades, from a legal frame­work that requires the govern­ment to obtain a warrant when acquir­ing Amer­ic­ans’ most sens­it­ive data to one that allows the govern­ment to amass such inform­a­tion without any suspi­cion of wrong­do­ing what­so­ever. We also have seen the results. Easy govern­mental access to the private lives of law-abid­ing citizens has proven to have scant national secur­ity bene­fit, while enabling the monit­or­ing of racial and reli­gious minor­it­ies, protest­ers, and polit­ical oppon­ents.

It is time for a course correc­tion.

To ascer­tain the path forward, we must look to our nation’s past. In the early decades of the Cold War, there were few legal checks on the govern­ment’s surveil­lance powers. The FBI, CIA, and NSA exploited this license to spy on social justice activ­ists — most famously, Martin Luther King Jr. — and anti-war protest­ers. At the height of these activ­it­ies, many Amer­ic­ans were afraid to fully express their polit­ical views, even in private commu­nic­a­tions, for fear of govern­ment snoop­ing and retali­ation.

When the Senate’s Church Commit­tee revealed these abuses, Congress and govern­ment agen­cies respon­ded by enact­ing laws and policies to limit surveil­lance. They shared a common feature: Law enforce­ment and intel­li­gence agen­cies could not collect inform­a­tion about Amer­ic­ans unless there was indi­vidu­al­ized, fact-based suspi­cion of wrong­do­ing. The level of suspi­cion — for example, “prob­able cause” or “reas­on­able basis to believe” — could vary depend­ing on the context and the inform­a­tion’s sens­it­iv­ity. But there could be no suspi­cion­less surveil­lance.

This rule served to protect not only privacy, but also civil rights and First Amend­ment freedoms. It is much harder for govern­ment agents to target people based on their own racial or polit­ical bias (whether conscious or subcon­scious) if they must point to facts indic­at­ing likely crim­inal activ­ity.

Of course, the system wasn’t perfect. It succeeded, however, in signi­fic­antly constrain­ing the govern­ment’s improper domestic spying. And it did so without negat­ively affect­ing national secur­ity. The 9/11 Commis­sion found fault with many of the govern­ment’s prac­tices, but it never sugges­ted that the govern­ment should collect more inform­a­tion about people in the United States with less basis for suspi­cion.

After 9/11, the legal protec­tions against suspi­cion­less surveil­lance were swiftly and system­at­ic­ally cast aside. In a vari­ety of contexts, it became lawful for the govern­ment to collect an Amer­ic­an’s sens­it­ive inform­a­tion based merely on a claim that the inform­a­tion was “relev­ant” to a legit­im­ate purpose, regard­less of whether the person was reas­on­ably suspec­ted of wrong­do­ing. Even for the most sens­it­ive of inform­a­tion, commu­nic­a­tions content, Congress gave the NSA free rein to collect phone calls, texts, and emails between foreign targets and Amer­ic­ans — commu­nic­a­tions that previ­ously could not be obtained domest­ic­ally without a court order based on prob­able cause.

At the same time, tech­no­lo­gical advances created fertile new aven­ues for suspi­cion­less collec­tion. Smart­phones, for instance, keep detailed track of Amer­ic­ans’ where­abouts — data that can be fed into soph­ist­ic­ated computer algorithms to determ­ine a person’s asso­ci­ations, activ­it­ies, and even beliefs. Courts were slow to recog­nize the sens­it­iv­ity of this data, and until quite recently, the govern­ment could force cell phone compan­ies to turn over any such inform­a­tion deemed “relev­ant.”

In 2018, the Supreme Court finally held that the govern­ment needs a warrant to obtain cell phone loca­tion inform­a­tion. Incred­ibly, the govern­ment inter­prets this ruling to apply only when it compels compan­ies to disclose the data — not when it purchases the data from a will­ing seller. While there are stat­utory restric­tions on phone and inter­net compan­ies selling customer data to govern­ment agen­cies, there are no such restric­tions on many types of app developers, because these entit­ies didn’t exist when the relev­ant laws were passed. Moreover, any company is free to sell loca­tion inform­a­tion to a digital data broker, which can resell it (at a hand­some profit) to the govern­ment — basic­ally laun­der­ing the data through a middle­man.

In addi­tion, tech­no­logy and glob­al­iz­a­tion have eroded the distinc­tion between domestic and over­seas surveil­lance. There are few stat­utory constraints on the govern­ment’s abil­ity to conduct surveil­lance abroad, yet such surveil­lance increas­ingly sweeps in the data of Amer­ic­ans. Moreover, the notion that foreign­ers have no privacy rights has become unten­able. European courts are requir­ing U.S. compan­ies to protect EU citizens’ data against broad U.S. govern­ment access — some­thing compan­ies cannot do under current U.S. law — as a condi­tion of doing busi­ness with European compan­ies.

In short, it is even easier today than it was in J. Edgar Hoover’s time for the U.S. govern­ment to collect sens­it­ive inform­a­tion about Amer­ic­ans and foreign­ers alike. It should come as no surprise, then, that we have seen a return to some of the abus­ive prac­tices of that era. After 9/11, the FBI developed a system of “ethnic mapping” and broadly infilt­rated mosques, task­ing inform­ants with relay­ing attendees’ conver­sa­tions. Since at least 2015, federal agen­cies have closely monitored Black Lives Matter protest­ers’ social media posts, tracked their protest activ­ity, and, in at least one instance, opened intel­li­gence files on journ­al­ists cover­ing racial justice protests. Just last month, we learned that the Trump Depart­ment of Justice obtained the commu­nic­a­tions metadata of Demo­cratic lawmakers and their family members, includ­ing a child.

Also unsur­pris­ingly, there is zero evid­ence that suspi­cion­less surveil­lance has made us safer. Consider the NSA’s program of “bulk collec­tion” — the poster child for suspi­cion­less surveil­lance — in which the agency obtained Amer­ic­ans’ phone records en masse. Two inde­pend­ent reviews found that this program yiel­ded little-to-no coun­terter­ror­ism bene­fit. Indeed, there is evid­ence that over­col­lec­tion is coun­ter­pro­duct­ive. Multiple govern­ment reviews of domestic terror­ist incid­ents have found that agents missed signs of trouble because those signs were lost in the noise of irrel­ev­ant data.

A compre­hens­ive over­haul of surveil­lance laws is in order. The goal should be reviv­ing the require­ment of indi­vidu­al­ized, fact-based suspi­cion for collec­tion on Amer­ic­ans and others in the United States, while narrow­ing the permiss­ible scope of collec­tion on foreign­ers over­seas. Achiev­ing this goal will require restor­ing limit­a­tions that were stripped out of the law after 9/11, as well as enact­ing new ones to ensure that Amer­ic­ans’ sens­it­ive inform­a­tion is protec­ted from disclos­ure regard­less of who holds the inform­a­tion or the tech­no­logy used to capture it.

This is, without ques­tion, a tall order. It is also imper­at­ive. The past 20 years have given us a glimpse of what the future could hold. In the next 20 years, depend­ing on what steps we take now, the United States can become a surveil­lance state in the mold of China — or we can real­ize our aspir­a­tions to be a coun­try in which people of all races, ethni­cit­ies, reli­gions, and polit­ical beliefs are free to live their lives and speak their minds without fear.