This essay was written with Cindy Cohn, and originally appeared in Lawfare . 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. 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 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 National Security Agency (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, either in terms of 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 Shift The 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 only previously authorized more targeted access to record.
While some media and public interest organizations struggled to force the government to reveal the program as early as late 2005, the government only officially confirmed it after the 2013 Snowden disclosures. In 2015, the Second Circuit Court of Appeals 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 fourteen 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 than15 years after its inception, the NSA ended content searches due to FISA court pressure, but the mass collection continues.
Originally published at schneier.com
