America's Post-9/11 Surveillance Authorities Were Inevitably Turned Against Its Own Citizens

In less than two months after terrorists brought down the Twin Towers, Congress passed the USA PATRIOT Act, granting federal law enforcement and intelligence agencies expanded authorities to engage in surveillance to hunt down suspected terrorists.

The bill sailed through Congress. The House of Representatives voted 357-66 to pass it. Then-Rep. Ron Paul (R–Texas) was one of only three Republicans to oppose it. In the Senate, only one senator, Russ Feingold (D–Wis.), voted against it.

In a speech on the Senate floor, Feingold warned against compromising our own civil liberties as we pursued Osama bin Laden and others who might mean Americans harm. He took note of the many, many times in America's history where the government chose security over liberty and the results were not pretty:

There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War. We must not allow these pieces of our past to become prologue.

Twenty years after the Sept. 11 attacks, we can see now that Feingold's warnings were on point (as were many warnings by many civil liberties experts). The USA PATRIOT Act ultimately led to a massive federal campaign of internal domestic surveillance that, when revealed, outraged many Americans even as government officials attempted to downplay and mislead citizens about what was happening.

Edward Snowden became a household name for good reason. In 2013, Snowden, a military intelligence contractor, leaked classified documents showing how the National Security Agency (NSA) was using the authorities of the USA PATRIOT Act to collect massive reams of communication data not just from suspected terrorists but from millions of Americans as well. Government officials (when they weren't lying to Congress about the existence of the program) downplayed what the NSA was doing. President Barack Obama responded to the outrage by insisting, "Nobody was listening to your phone calls."

But what the government was doing was collecting lots and lots of information about everything else related to those calls. The term "metadata" slid into the popular lexicon. Metadata refers to all the information about a communication outside of the actual contents of it—who people call, when, and where they are when they do so. One of the lessons Americans learned about all this domestic surveillance was how easy it is—as communications technology over the past two decades turned our phones and personal devices into actual computers—for the government to keep track of your behavior even when they aren't listening to your phone calls. Did you call a clinic that provides abortions? A person with a criminal history of dealing drugs? A leader of an organization with a history of protesting government behavior? Metadata collection allowed the government to collect all of this information about citizen behavior absent any suspicion of a crime or an individualized warrant, bypassing the protections of the Fourth Amendment entirely.

One man apparently shocked by the breadth of this surveillance was Rep. Jim Sensenbrenner (R–Wis.), the man responsible for authoring the PATRIOT Act in the first place. Sensenbrenner did not intend for Section 215 of the PATRIOT Act to allow for mass, warrantless collection of records of millions of Americans. He blasted the Department of Justice under the Obama administration for interpreting it that way, pointing out that the records of every American's phone calls are assuredly not relevant to any investigation of terrorism.

But the genie is not going back into the bottle easily. Section 215 of the PATRIOT Act did finally expire, replaced by the USA Freedom Act, which formalized some of these surveillance tools but added restrictions. NSA has since said that it is no longer collecting all of this data, and, by 2020, their authority to do so formally expired. It has never been shown to assist them in catching any terrorists.

Nevertheless, fear of terrorism has been used all this time and continues to be used to try to scare the public into making it easier for the government to snoop on them. The technology used to track terrorists' location data through their phones can and is used to track citizens through the commandeering of cell tower signals. The same thing has happened with facial recognition software. So-called Department of Homeland Security "fusion centers" formed in the wake of Sept. 11 were sold to the public as information clearinghouses between the feds and local police departments that allow them to better communicate with each other about potential terrorist threats. In reality, a Senate report from 2012 found no examples where they helped uncover a potential terrorist threat. Instead, there have been examples of these centers snooping on domestic activist groups and protests.

In recent years, fears of terrorism have been used by police and lawmakers to attack encryption, particularly end-to-end encryption, which helps protect the privacy of data on your computers, phones, and tablet devices. Encryption makes it harder for hackers and criminals to access your data. It also makes it harder (if not impossible) for the government to access your info without your knowledge or permission.

When two Muslim homegrown terrorists killed 14 people in an attack in San Bernardino, California, in 2015, the FBI attempted to force Apple to disable the phone's security to access the data within. The feds did have a warrant to search the phone, but Apple declined to assist, arguing that undermining their own encrypted security system via what's known as a "back door" would create security risks for users. Eventually, the FBI was able to turn to a third party to hack into a phone, which turned out to not have any information relevant to the attack stored on it.

Nevertheless, the war on terror has been invoked repeatedly by police, prosecutors, and lawmakers as a reason why tech companies should be required to allow for these back doors to allow officials access to data. Tech companies, privacy rights advocates, and cybersecurity experts are all pretty much in agreement here: Encryption back doors are very, very bad. There is no such thing as an encryption bypass that only the "right" people can access. Any mechanism that can break through this security can fall into the hands of criminals or authoritarian governments.

And even when they don't, the lesson of the PATRIOT Act is that we really cannot trust the government to accept limits on surveillance tools unless there is a transparent public mechanism of enforcement. The same government agencies who insist they'd be careful with encryption bypasses and would seek warrants are the same government agencies who had been secretly collecting whatever data they can about our personal communications as part of the War on Terror.

Feingold warned about all of these potential dangers in his critique of the PATRIOT Act:

But under this bill, the government can compel the disclosure of the personal records of anyone—perhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or has been seen in the company of, or whose phone number was called by—the target of the investigation.

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That's it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power.

This speech was given on Oct. 21, 2001. And it's exactly what happened.