Watson Institute for International and Public Affairs
Costs of War

Surveillance

The events of 9/11 have been used to dramatically expand the government’s surveillance authorities and weaken Constitutional protections.

Prior to 9/11, the Foreign Intelligence Surveillance Act (FISA) allowed the government to secretly wiretap Americans and obtain access to their electronic communications based on a judge’s individualized determination that probable cause exists to suspect a person of knowingly aiding a foreign power or terrorist. In 2005, it was revealed that the Bush administration had been conducting warrantless electronic surveillance of Americans’ communications for four years. In 2008, Congress authorized the FISA court to approve electronic surveillance programs without individual court orders or showing of individual wrongdoing.

The United States government has also used post-9/11 terrorist fears to expand its monitoring of U.S. citizens for other purposes. For example, the FBI’s “Joint Terrorism Task Forces” and the Department of Defense’s staff have monitored peace groups such as the Quakers. Homeland Security funding was also used to monitor citizens dissenting from U.S. financial policies through Occupy Wall Street as well as citizens protesting the American Legislative Exchange Council.

In June 2013, the Guardian reported that the National Security Agency (NSA) was collecting the telephone records of tens of millions of Americans based on a secret court order. U.S. Courts have continued to thwart lawsuits arguing that the program violates free speech and association and Fourth Amendment privacy rights.

In 2015, the USA Freedom Act amended many of the provisions of the FISA, limiting the government’s data collection and declassifying some FISA Court opinions. However, the act also extended certain controversial provisions of the Patriot Act, including the roving wiretap provisions, which allow continued surveillance of a target even if that target changes communications devices, and the lone wolf surveillance authority, which allows the surveillance of non-U.S. citizens acting without direction from a foreign party. The Patriot Act expired on March 15, 2020, and it has not been reauthorized as of early 2021, although it passed a vote in the House in March 2020.

The FISA Amendments Reauthorization Act of 2017 extended FISA Section 702 until December 31, 2023, adding only a few new restrictions and allowing the NSA to continue to surveil foreigners and gain incidental information on Americans without a warrant.

Key Findings

  • The U.S. used post-9/11 terrorist fears to expand its monitoring of U.S. citizens who have nothing to do with terrorism.

  • The U.S. has more people subject to electronic surveillance through FISA programs and through bulk collection of communications without probable cause than it does through “criminal wiretaps” predicated on a person’s probable involvement in criminal activity.

  • In 2013, journalists revealed the NSA’s collection of tens of millions of Americans’ telephone records, as well as its direct tapping of major Internet company servers.

Recommendations

  • In line with ACLU recommendations, pass legislation that would repeal “surveillance state” sections of the amended FISA and the Patriot Act.

(Page updated as of June 2021)