Civil liberties and their foundations have been around since the dawn of civilization. Concepts enshrined in the Biblical Ten Commandments, the English Magna Carta, the U.S. Constitution and Bill of Rights are fundamental examples of the rights and freedoms guaranteed to individuals.
Today, many of these rights and freedoms are enshrined in a country’s constitution or legal framework. We all know them well. For instance, the Bill of Rights protects and guarantees freedom of speech, privacy, and assembly. It also protects against unwarranted governmental intrusion.
But critics argue that modern technology has intruded on individual rights and civil liberties. In particular, social media and smartphones have accelerated this intrusion. Government surveillance on individual technology tools was unimaginable just decades ago. Surveillance programs often aim to enhance national security and prevent crime. Often, however, critics determine that they infringe upon personal privacy and freedom.
Following 9/11, many governments expanded their surveillance capabilities in an effort to counter terrorism. They employed technologies like data mining, wiretapping, and online monitoring. Critics argue that these practices often lack transparency and oversight. They claim that they enable an abuse of power. Overall, critics argue that mass surveillance erodes trust in government, degrades free speech, and targets marginalized communities.
Balancing civil liberties with security needs is complex. Legal frameworks like the Fourth Amendment are designed to protect against unreasonable searches and seizures. Modern laws and rapid technological advancement have outpaced existing protections in the name of national security.
What Is Government Surveillance?
Government surveillance involves monitoring and collecting information on individuals, groups, or activities.. State and/or federal law enforcement work with regulatory agencies to oversee this effort. This can include:
- Intercepting communications like phone calls and emails
- Observing physical movements through CCTV and drones
- Gathering data from financial transactions, travel records, and social media
Some argue that surveillance is essential for national security, crime prevention, and public safety. However, many share significant concerns about privacy, civil liberties, and power abuses. These concerns are especially prevalent in our increasingly digitally-connected culture. Almost any piece of electronic equipment can be used for listening or watching.
In particular, mass surveillance involves extensive monitoring of large populations. It harnesses the power of advanced technology and data analytics. Mass surveillance techniques only intensify debates surrounding the balance between security and individual rights. Ensuring transparency and accountability is essential to addressing these concerns.
Before the advent of the internet, smart phones, and social media, government surveillance was less reliant on technology. It involved practices like mail interception, informants, spies, and even monitoring the press.
The History of Government Surveillance in the United States
In the United States, government surveillance has evolved over time. In the 19th century, surveillance techniques relied on practices like mail interception and the use of informants. Modern surveillance relies heavily on digital tools and technologies. Key moments include the establishment of the Secret Service in 1865, the Federal Bureau of Investigations (FBI) in 1908, and the National Security Agency (NSA) in 1952.
Passed in 2001, the Patriot Act expanded digital surveillance in the aftermath of 9/11. Later, whistleblower Edward Snowden’s 2013 revelations highlighted extensive NSA data collection. His claims sparked debates over privacy rights and civil liberties.
Pre-9/11 vs. Post-9/11 Government Surveillance
Government surveillance has a long history, evolving significantly in the 19th century.
Pre-9/11 Government Surveillance
Below, we detail key tactics utilized by the U.S. government. We assess how these tactics and the agencies that employ them have evolved over time.
Mail Interception (1875-1890s)
Unsurprisingly, mail was one of the most common forms of communication before the advent of the telephone. The U.S. Postal Service began monitoring mail for illegal or subversive content in the mid 1800s. The Comstock Act of 1873 allowed for the inspection of mail for obscene materials.
The Bureau of Investigation (1908)
The predecessor to the FBI was established in 1908. It focused on anarchists and political radicals active in the early 1900s. Anarchist organizations were considered by many to be early terror groups. They claimed responsibility for the assassination of President William McKinley in 1901. Later, their assassination of Archduke Franz Ferdinand was a catalyst for the beginning of World War I. Between 1919 and 1920, the Bureau conducted the Palmer Raids, which targeted leftist organizations.
The Espionage Act (1917) and Sedition Act (1918)
These acts criminalized dissent against the war effort. They led to increased surveillance of suspected anti-war activists and socialists. Similar acts were passed during World War II.
COINTELPRO (1956-1971)
The FBI’s Counter Intelligence Program aimed to disrupt the communist, socialist, and civil rights movements. It targeted prominent individuals and organizations within these movements, including the Black Panther Party and Martin Luther King, Jr.
Project SHAMROCK (1945-1975)
The predecessor to the NSA monitored international telegraph and telephone communications.
Church Committee (1975)
In the 1970s, Congressional investigations revealed widespread abuses by intelligence agencies. Calls for reforms led to the establishment of the Foreign Intelligence Service Act (FISA) in 1978. The CIA employed Operation CHAOS as a domestic surveillance program. It targeted anti-war activists and political dissidents.
Post-9/11 Government Surveillance
After 9/11, the United States significantly expanded its surveillance capabilities. It created various programs and laws to this end. Key programs and laws included:
The Patriot Act (2001)
Passed just weeks after 9/11, the Patriot Act armed law enforcement agencies with new tools to detect and prevent terrorism. In particular:
- Section 215 allowed the FBI to obtain “any tangible things” for investigations to protect against terrorism. This led to mass collection of telephone metadata.
- Section 206 permitted “roving wiretaps” on suspected terrorists. As such, the Act allowed surveillance on multiple communication devices.
NSA Surveillance Programs
In this time period, the NSA also created and employed various surveillance programs. This included:
- Authorized by President George W. Bush, the Stellar Wind program involved the warrantless surveillance of domestic communications, including email and phone calls. The program was employed with the legal justification of the Authorization for Use of Military Force (AUMF) and subsequent presidential orders.
- The PRISM Program enabled the NSA to collect internet communications from major tech companies like Google, Facebook, and Apple. This was justified under the Protect America Act of 2007 and the FISA Amendments Act of 2008.
- The Upstream Collection program involved tapping into the internet backbone to capture communications directly as they traveled across network switches. This was conducted under Section 702 of the FISA Amendments Act.
Terrorist Surveillance Program (TSP)
Implemented by the NSA, the TSP monitored international communications involving suspected terrorists. This activity was conducted without warrants. It was justified by the AUMF and President Bush’s executive authority.
FISA Court
Though established in 1978, the FISA court gained prominence in the aftermath of 9/11. The court authorized broader surveillance requests, including bulk data collection, under Section 215 of the Patriot Act.
National Security Letters (NSLs)
NSLs allowed the FBI to demand data from companies without court orders. Complemented by the Patriot Act, NSLs could compel internet service providers, financial institutions, and others to provide customer information.
Enhanced Border and Immigration Surveillance
Post-9/11 government surveillance programs also involved enhanced border and immigration surveillance. Programs like the Automated Targeting System used data analytics to screen travelers and cargo. Operating under the Homeland Security Act of 2002, they are largely credited with enhancing border security.
The Legal Framework for Government Surveillance
Today, the legal framework for government surveillance includes:
- The USA PATRIOT Act, particularly Section 215
- FISA and its amendments, notably Section 702
- The USA FREEDOM Act, which reformed bulk data collection
- Executive Order 12333, which governs intelligence activities
These laws and orders authorize surveillance with oversight from the FISC and various congressional committees.
The Fourth Amendment
The Fourth Amendment protects citizens from unreasonable searches and seizures, ensuring that any government surveillance or search must be justified by a warrant issued upon probable cause. Today, the Fourth Amendment remains crucial in balancing the needs of law enforcement and national security with individual rights to privacy. Below, we examine its role in the context of modern surveillance.
Warrant Requirement
The Fourth Amendment mandates that, in most cases, law enforcement must obtain a warrant from a neutral judge before conducting a search or surveillance. This warrant must be based on probable cause and must specify the place to be searched and the items to be seized.
Expectation of Privacy
In interpreting the Fourth Amendment, courts assess whether individuals have a reasonable expectation of privacy. This principle extends to various contexts, including homes, vehicles, digital communications, and personal data.
Exclusionary Rule
Evidence obtained in violation of the Fourth Amendment is generally inadmissible in court. This is due to the exclusionary rule. The exclusionary rule serves as a deterrent against unlawful searches and seizures.
Judicial and Legislative Oversight
The FISC oversees surveillance requests related to national security, ensuring they comply with the Fourth Amendment. Congress also enacts laws to regulate surveillance activities and protect civil liberties. Learn more about judicial and legislative oversight here.
Overall, the Fourth Amendment remains a fundamental safeguard against intrusive government surveillance.
USA PATRIOT Act
The USA PATRIOT Act enhances government surveillance capabilities. It does so primarily through Section 215, which permits the collection of “any tangible things” relevant to terrorism investigations.
This provision was used to justify the bulk collection of telephone metadata by the NSA until 2015. Additionally, Section 206 allows for roving wiretaps on suspects who frequently change communication devices. Section 213 enables delayed notification of search warrants, called sneak and peek warrants, aiding in investigations by preventing suspects from tampering with evidence. Finally, Section 214 expands the use of pen registers and trap and trace devices to monitor internet and phone communications. These measures have sparked debates over privacy rights and government overreach. They influenced subsequent legislative efforts to balance national security with civil liberties.
Public Perception of Government Surveillance
Over time, Americans have become more disapproving of government surveillance programs. Edward Snowden’s 2013 revelations about NSA surveillance played a large role in this growth. By January 2014, 53% of Americans signaled their disapproval of government collection of phone and internet data. In response to growing surveillance concerns, most Americans changed their technology habits.
There are partisan differences in surveillance concerns. In 2021, 75% of Democrats, compared to 57% of Republicans, reported concerns about domestic extremist threats.
The COVID-19 pandemic also impacted surveillance views. Compared with their Republican counterparts, Democrats were more supportive of measures like temperature checks and cameras to enforce social distancing. Partisan differences were smaller for contact tracing apps.
Overall, Americans share significant concerns about government surveillance and data collection. Regardless of variations along partisan lines and the specifics of different policies, there is a common desire for more control over personal information and limitations on government surveillance.
Recent Topics in Government Surveillance
Recent concerns around government surveillance continue to grow. The NSA uses PRISM and Upstream to conduct mass surveillance programs. Current events highlight the extent to which government surveillance remains present in our society. In particular:
- Throughout the Israel-Gaza Protests, Pro-Israel groups urged Congress and other lawmakers to reauthorize FISA to help monitor “foreign involvement in domestic anti-Semitic events.”
- A 2023 report from the Government Accountability Office found that federal agencies use face recognition with little to no accountability, transparency, or training. Learn more here.
- The Electronic Frontier Foundation (EFF) filed a lawsuit against California’s San Bernadino County, citing their “aggressive” tracking activities through cell towers.
Get Started With Plural
Top public policy teams trust Plural to track legislation pertaining to government surveillance and civil liberties. With Plural, you’ll:
- Access superior public policy data
- Be the first to know about new bills and changes in bill status
- Streamline your day with seamless organization features
- Harness the power of time-saving AI tools to gain insights into individual bills and the entire legislative landscape
- Keep everyone on the same page with internal collaboration and external reporting all in one place
Interested in getting started? Create a free account or book a demo today!
