25 Years of Mass Surveillance Is Enough

One of the many legacies of the terrorist attacks of Sept. 11 is the government-wide shift from targeted surveillance—such as individual wiretaps or pen register/trap and trace orders—to mass surveillance techniques—such as tapping into the internet backbone or mass collection of telephone or internet metadata. The legal and technical architecture of modern mass surveillance, initially framed as a necessary defense against terrorist threats, has grown far beyond that justification and national security in general. Mass surveillance is now a routine tool used by law enforcement. Immigration and Customs Enforcement (ICE) uses it in immigration actions and against people exercising their First Amendment rights to protest. It’s also increasingly part of private security systems, such as facial recognition at venues such as Madison Square Garden and networked Flock license plate capture systems on roads and in parking lots.The interrelation between private and governmental mass surveillance is worth examining. Surveillance is the business model of the internet; companies like Google and Facebook constantly spy on their users’ behavior. From the National Security Agency (NSA) relying on data collected by telecommunication and internet companies, to local sheriffs and ICE agents relying on cellphone location data and privately managed automatic license plate readers, governments primarily obtain the mass surveillance information through private companies. Increasingly, access doesn’t just come through legal processes, either. FBI Director Kash Patel recently confirmed in congressional testimony that the agency is purchasing information on Americans from data brokers and intends to continue to do so.This pipeline from private collection to governmental collection means that as companies collect more information for surveillance capitalism purposes, more is available to law enforcement as well. And as the technology for mass surveillance and analysis improves, especially with the increased use of AI technologies, the problems attendant to mass surveillance grow as well.After 9/11, the idea that the government could surveil the population to safety took hold. In 2001, the fear of terrorism reached a frequency and intensity never before seen. Along with that came the fear that the enemy could be anyone, anywhere. As a result, the government’s response was to watch everyone, everywhere. This line of reasoning underpinned the shift from targeted to mass surveillance. Or, in the words of an internal NSA presentation that was made public as part of Edward Snowden’s 2013 disclosures, a government that can “Collect it All,” “Process it All,” “Exploit it All,” “Partner it All,” and “Sniff it All,” will ultimately, “Know it All.” Similar rationales support the rise of domestic mass surveillance: If law enforcement could see and hear everything, it could more effectively interdict and solve serious crimes.The national security community has never provided a full analysis of the costs and benefits of these mass surveillance programs, in terms of either taxpayer dollars or diversion of resources from other efforts—or any demonstration that those techniques stopped attacks that otherwise they would not have been able to prevent. While the NSA occasionally presents examples of the successes due to its mass surveillance programs, especially when those techniques are under public pressure, the examples also regularly fall apart upon serious scrutiny. And even if some utility exists, it must be seriously weighed against the costs.Similarly, there has never been any comprehensive analysis about whether domestic immigration or law enforcement’s use of these techniques actually makes people safer, or whether other techniques could produce the same results. Instead, both the police and the companies selling these tools float anecdotes and dubious data. For example, Flock’s data equates the number of law enforcement hits in their database with actually solving crimes.Twenty-five years after 9/11, it seems reasonable to step back and evaluate the costs of this shift to mass surveillance, especially in terms of Americans’ rights and freedoms.The ShiftThe easiest place to see a shift to mass surveillance was in the government’s decision immediately after 9/11 to collect Americans’ telephone records. The program started under an argument of pure executive power as the “President’s Surveillance Program.” But in 2006, that argument secretly shifted to a novel interpretation of Section 215 of the Patriot Act, which had previously had authorized only more targeted access to records. While some media and public interest organizations struggled to force the government to reveal the program as early as late 2005, the government officially confirmed it only after the 2013 Snowden disclosures. In 2015, the U.S. Court of Appeals for the Second Circuit rejected the government’s interpretation of Section 215 as allowing mass collection of telephone records. Later the same year, Congress passed the USA Freedom Act. While this new law still allows collection of a tremendous amount of domestic telephone records, it ended the indiscriminate mass collection that had occurred for nearly 14 years.Other shifts to mass surveillance continue through today. The NSA launched its Upstream program, which involved intercepting both metadata and content from key telecommunications junctures inside the U.S., soon after 9/11. It was also initially conducted under a claim of purely presidential authority. This program was brought under marginal congressional and programmatic (not targeted) Foreign Intelligence Surveillance Act (FISA) court review via Section 702 of the 2008 FISA Amendments Act. In 2017, more than 15 years after the program’s inception, the NSA ended content searches due to FISA court pressure, but the mass collection continues.Despite the stated goal of conducting mass spying only on people outside the U.S.—which itself is problematic given international law’s requirement that surveillance be both necessary and proportionate—mass surveillance collects a tremendous amount of U.S. persons’ communications. This can happen because people communicate with people abroad, or because of overcollection—when government agencies gather far more personal data on nontargeted U.S. persons than authorized by law. The concerns about collecting Americans’ data on U.S. soil led Congress to allow the program to officially expire in 2026, although the previously approved mass surveillance itself continues until at least spring of 2027.The shift to mass surveillance would be notable enough even if it remained only a strategy of the intelligence community. It has not. Americans are awash in mass surveillance. Networks of automated license plate readers such as those offered by Flock and Vigilant Solutions blanket both public and private roadways and parking lots. These networks often allow searches by law enforcement, including across jurisdictions. They are, for example, being used to track people seeking abortions across state lines. Facial recognition tools, once the province of only the more elite parts of federal law enforcement, are increasingly used by ICE agents on immigrants and protesters, in airports by the Transportation Security Administration, as well as by private entities. And, of course, modern phones track users’ locations constantly—and that information is readily available to law enforcement, often with only minimal process protections.Constitutional CostsRegardless of the murkiness of its actual usefulness, the shift from targeted to mass surveillance has profound implications for Americans’ rights. It has created risks that have become increasingly evident, especially under the Trump administration.At a basic level, the Fourth Amendment guarantees that citizens can be secure in their “persons, houses, papers and effects” from unreasonable searches. Warrants breaching that security should be supported by probable cause and particular descriptions of the place to be searched and items to be seized. Mass surveillance turns that promise on its head, allowing access to our “papers and effects” by the government without individualized suspicion or a particularized description of what data is being seized, much less probable cause. This protection was in response to colonial British misuse of writs of assistance, which authorized indiscriminate searches rather than targeted ones.The justifications for exempting mass surveillance from constitutional protection vary. For Section 702, the government has taken the position that U.S. persons’ communications caught up in the dragnet, either due to overcollection or because they were communicating with someone outside the United States, do not require a warrant prior to initial collection or secondary access by the FBI and several other agencies. The argument is that if the initial collection was not aimed at Americans, the information is free from constitutional protection for any later uses, even for reasons far afield from the initial rationale for collection.Other arguments rest on the claim that metadata is outside the Fourth Amendment, despite its demonstrated ability to reveal intimate details of all of our lives. Still others rest on the Supreme Court-created third-party doctrine, which holds that the Fourth Amendment does not apply to data shared with companies that provide us with services. Some turn on whether analysis by machine counts, claiming that only “human eyes” matter—a particularly troubling argument with the rise of artificial intelligence (AI). What’s more, the government has used doctrines like standing to limit the ability of those subjected to mass surveillance to seek constitutional protection. No matter the argument, the goal is the same: to place the mechanisms and fruits of mass surveillance outside the protections of the Fourth Amendment.The overarching truth is that, due to the concerted