The Other 20-Year Anniversary: Freedom and Surveillance Post-9/11
(Cindy Cohn and Matthew Guariglia) The twentieth anniversary of the attacks of September 11, 2021 are a good time to reflect on the world we’ve built since then. Those attacks caused incalculable heartbreak, anger and fear. But by now it is clear that far too many things that were put into place in the immediate aftermath of the attacks, especially in the areas of surveillance and government secrecy, are deeply problematic for our democracy, privacy and fairness. It’s time to set things right.
The public centerpiece of our effort to increase government surveillance in response to the attacks was the passage of the Patriot Act, which will have its own 20th anniversary on October 26. But much more happened, and far too much of it was not revealed until years later. Our government developed a huge and expensive set of secret spying operations that eviscerated the line between domestic and foreign surveillance and swept up millions of non-suspect Americans’ communications and records. With some small but critical exceptions, Congress almost completely abdicated its responsibility to check the power of the Executive. Later, the secret FISA court shifted from merely approving specific warrants to a quasi-agency charged with reviewing entire huge secret programs without either the knowledge or the authority to provide meaningful oversight. All of these are a critical part of the legacy of September 11.
Of course, we did not invent national security or domestic surveillance overreach 20 years ago. Since the creation of the Federal Bureau of Investigation in the early twentieth century, and the creation of the National Security Agency in 1952, the federal government has been reprimanded and reformed for overreaching and violating constitutionally protected rights. Even before 9/11, the NSA’s program FAIRVIEW forged agreements between the government agency and telecom companies in order to monitor phone calls going in and out of the country. But 9/11 gave the NSA the inciting incident it needed to take what it has long wanted: a shift to a collect-it-all strategy inside the U.S. to match, in many ways, the one it had already developed outside the U.S., and the secret governmental support to try to make it happen. As for those of us in the general public, we were told in the abstract that giving up our privacy would make us more secure even as we were kept in the dark about what that actually meant, especially for the Muslims and other Americans unfairly targeted.
Even after swaying public opinion, many of these programs remained secret from, or lied about to, the voting public.
The surveillance infrastructure forged or augmented in the post-war-on-terror world is largely still with us. In the case of the United States, in addition to the computer servers, giant analysis buildings, weak or wrong legal justifications, and the secret price tag, one of the lasting and more harmful effects has been on the public. Specifically, we are still too often beholden to the mentality that collecting and analyzing enough information can keep a nation safe. Yet even after all of these years, there’s no clear evidence that you can surveil yourself to safety. This is true in general but it’s especially true for international terrorism threats, which have never been numerous or alike enough to be used to train machine learning models, much less make trustworthy predictions.
But there are copious amounts of evidence of ongoing surveillance metastasis: the intelligence fusion centers, the national security apparatus, the Department of Homeland Security, enhanced border and customs surveillance have been deputized to do things far afield from their original purpose of preventing another foreign terrorist attack. Even without serious transparency, we know that those powers and tools have been used for political policing, surveilling activists and immigrants, denying entry to people because of their political stances on social media, and putting entire border communities under surveillance.
The news in the past 20 years isn’t all bad, though. We have seen the government end many of the specific methods developed and deployed by the NSA immediately after 9/11. This includes the infamous bulk call details record program (albeit replaced with an only slightly less problematic program). It also includes the NSA’s metadata collection and the “about” searching done under the UPSTREAM program off of the Internet backbone. We also have cut back on the unlimited gag orders accompanying National Security Letters. Each of these was accomplished through different paths, but none of them exist today as they did immediately after 9/11. We even pushed through some modest reforms of the FISA court.
But the biggest good news is the growth of encryption across the digital world, from the encrypting of links between the servers of giants like Google, to the Let’s Encrypt project encrypting web traffic, to the rise of end-to-end encrypted tools like Signal and WhatsApp that have given people around the world greater protections against surveillance even as the governments have become more voracious in their appetites for our data. Of course, the fights over encryption continue, but we should note and celebrate our victories when we can.
Other nefarious programs continue, including the Internet backbone surveillance that EFF has long sought to bring to the public courts in Jewel v. NSA. And in addition to federal surveillance, we’ve seen the filtering of the “collect it all” mentality manifest in our local police departments both through massive surveillance technology injections and in the slow enmeshing of local with federal surveillance. We still do not have a full public account of the types and scope of surveillance that has been deployed domestically, much less internationally, although EFF is trying to piece some of it together with our Atlas of Surveillance.
Twenty years is a good long time. We now know more of what our government did in the aftermath and we know how little safety most of these programs produced, along with the disproportionate impact it had on some of our most vulnerable communities. It’s time to start applying the clear lessons from that time and continue to uncover, question, and dismantle both the mass surveillance and the unfettered secrecy that were ushered in when we were all afraid.
