Surveillance & Counter-Terrorism After 9/11

Introduction

Following the attacks on September 11th of 2001, surveillance initiatives and technologies in the United States increased notably in attempts to combat terrorism. Suspicions of foreigners and combative foreign policy characterized this time period.

History of Surveillance in the United States

Olmstead v. United States (1928)

The Court ruled that neither the Fourth nor Fifth Amendment rights were violated by the wiretaps attached by law enforcement to the phone lines of prohibition conspirators, as there was no physical trespass.

Katz v. United States (1967)

The court ruled that wiretapping public phone booths was, in fact, constitutional. This ruling ultimately overturned Olmstead v. United States.

COINTELPRO

COINTELPRO, or “Counter Intelligence Program” was an FBI surveillant initiative to hamper significant social movements in the 1960s. Though it started to stop the spread of communism, it eventually turned into an attempt to expose and neutralize the activities of “Black Nationalists”. The Counter Intelligence Program’s agenda led to the assassination of Malcolm X and other notable leaders of the Black Panther Party.

Surveillance of Japanese Americans During World War II

Since 1917, the FBI had been monitoring Japanese plantation labor organizers in Hawai’i, especially after witnessing their support for Black Nationalist groups, hoping to quell Asian-Black radical solidarity. Following the Japanese attack on Pearl Harbor, the FBI and other federal agencies. As war with Japan came closer, President Roosevelt created a task force to place Japanese Hawaiians with any connection to Japanese sailors on a special list of people to be placed in a concentration camp in the event of trouble. Over 127,000 Japanese-Americans were placed in internment camps as a result of surveillance and anti-Asian hysteria.

Surveillance Post 9/11

Transportation Security Administration

The Transportation Security Administration, more widely known as TSA, was established on November 19th, 2001 by the Aviation and Transportation Security Act. The Aviation and Transportation Security Act required “screening conducted by federal officials, 100 percent checked baggage screening, expansion of the Federal Air Marshal Service, and reinforced cockpit doors.” By 2002, the TSA had installed explosive detection systems nationwide. In 2003, the TSA began training flight staff to carry and use firearms.

In 2010, the Transportation Security Admission announced stricter screening procedures for air passengers traveling through “state sponsors of terrorism or other countries of interest”. The countries of interest are Cuba, Sudan, Syria, Iran, Afghanistan, Algeria, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia, and Yemen. These new guidelines drew massive criticism from Muslim groups, such as the Council on American-Islamic Relations, claiming that this would only cause profiling and isolate Muslims.

The USA PATRIOT ACT

“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” or the USA PATRIOT Act was passed on October 25th, 2001 by President George W. Bush. It allowed U.S. law enforcement to have greater access and freedom to use surveillance and wiretapping of American citizens to uncover crimes related to terrorism. The USA PATRIOT Act also tripled the size of Border Patrol and Immigration & National Service personnel.

Wiretap Act

Amendments to the Wiretap Act by the USA Patriot Act allowed police to obtain court orders in order to spy on suspected criminals and terrorists through the interception of phone calls, emails, and other forms of electronic communication. In addition, it added credit card numbers and bank account information to a government database that could be accessed with permission. Lastly, the Wiretap Act allowed government officials to use trap-and-trace devices, which can trace phone calls to individuals and their locations. These devices were used to conduct Sneak-and-Peak searches, where government officials can enter an individual’s home address or office and search through without permission.

In addition, the USA PATRIOT Act pushed for harsher punishments for convicted terrorists and prohibited non-US citizens involved in terrorist activities from entering the United States of America. Lastly, law enforcement and federal agents were provided easier access to bank records and business financial statements to track terrorism-related money laundering and illegal economic activity. Under the USA PATRIOT Act, National Security Letters (NSLs) are issued by FBI agents, without a judge's approval, to obtain personal information, including phone records, computer records, credit history, and banking history. Between 2003 and 2006, the FBI issued 192,499 NSLs, but only resulted in one terror-related conviction.

Ethics & Controversies Surrounding The USA PATRIOT ACT

The USA PATRIOT Act raised controversy and garnered intense sentiments from both sides. Supporters of the USA PATRIOT Act increased the chances of stopping terrorists by promoting increased collaboration between the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI). Many suggested that non-terrorists should have nothing to hide and therefore had no reason to be worried about government surveillance.

On the contrary, those denouncing the USA PATRIOT Act argued it was enacted far too hastily and that it infringed on Americans’ right to privacy. Many claimed it violated the Fourth Amendment, which states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.

ACLU vs. FBI: FOIA Case for Records Relating to Patriot Act Section 21

In May 2011, The American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request to clarify Section 215 of the Patriot Act, which allowed for search and seizure. This section garnered perhaps the most controversy of all. In June 2013, it was revealed that the National Security Agency collects telephone records of all Americans on an ongoing basis. This sparked outrage among the public.

ACLU vs. Clapper - Challenge to NSA Mass Call-Tracking Program

On June 11, 2013, the American Civil Liberties Union (ACLU) filed a lawsuit against the National Security Agency, calling into question the legality of their collection of American phone calls. The ACLU asserted that it violated the Fourth Amendment. The lawsuit resulted in the expiration of Section 215 and the passage of the USA Freedom Act.

Edward Snowden’s Exposure of the National Security Agency (NSA)

Edward Snowden began working as a contractor at the NSA in 2009. During his time there, he gathered information and conducted interviews with journalists from The Guardian. Ultimately, Snowden uncovered a court order from the NSA that commanded Verizon to turn over the data, such as numbers dialed and length of calls, of millions of its subscribers. In addition, Snowden exposed the PRISM program, which was a data-mining program that gave the National Security Agency (NSA), Federal Bureau of Investigation (FBI), and Britain’s Government Communications Headquarters direct access to the servers and activity behind Google, Facebook, Microsoft, and Apple. Snowden’s discoveries were met with mixed reactions from Americans, as some viewed him as a traitor and some lauded him as a whistleblower that simply uncovered unethical actions of the government.

On June 14th, 2013, Edward Snowden was charged with Espionage. After years of temporary refugee status, Snowden was granted permanent Russian residency in 2020. Snowden sparked a wave of debates surrounding the ethics of mass surveillance, privacy, and government secrecy, coined by some as “The Snowden Effect”. To this day, Snowden’s actions and punishment remain a source of controversy as conversations about privacy continue to be at the forefront.

USA Freedom Act of 2015

The USA Freedom Act of 2015 solidified that the United States government would no longer collect telephone metadata records, as written under the USA Patriot Act. Instead, call detail records would be held by telecommunications service providers.

Terrorist Screening Center

The Terrorist Screening Center, also known as TSC, is a division of the FBI founded in 2003 as a response to the September 11 Attacks. It is located in Vienna, Virginia, and aims to keep track of potential terrorists or suspects. The TSC created a database titled The Terrorist Watchlist, a consolidated directory of information on individuals who may be suspected of being involved in terrorist activity. Examples of information in the watchlist include names, dates of birth, and fingerprints. The No Fly List is a subset of the Terrorist Watchlist; individuals on the No Fly List are not allowed to board an aircraft when flying in and out of the United States.

Biometrics and Identification Post 9/11

Biometric Identifiers

In 2004, the 9/11 Commission report recommended that it was essential to the security of the United States to fund a “biometric entry-exit screening system”. The commission noted that terrorists use false identities to travel under the watchlist, and therefore biometric identifiers should be used to prevent this.

Integrated Automated Fingerprint Identification System

The Integrated Automated Fingerprint Identification System, also known as IAFIS, is the largest biometric database in the world, with over 70 million sets of fingerprints. This computerized database is connected to all 50 states and is maintained by the Federal Bureau of Investigation (FBI). The IAFIS provides automated fingerprint searches and criminal histories.

National Security Entry-Exit Registration System (NSEERS)

The National Security Entry-Exist Registration System, also known as NSEERS, was founded in 2002 following the 9/11 attacks. NSEERS requires foreign nationals to be photographed and fingerprinted if traveling under nonimmigrant visas.

Visa Waiver Program and Biometric Passports

In order to remain eligible for the Visa Waiver Program, countries were required to issue passports to their citizens that included biometric identifiers. In 2005, the passports included a microchip that contained facial geometry characteristics.

Trump Administration’s Biometric Entry-Exit Tracking System

After more than a decade, the biometric entry-exit tracking system was finally implemented under President Donald J. Trump in 2017. This system was designed to incorporate various technologies, such as fingerprinting, iris-scanning, and facial recognition, to identify who is leaving and entering the country. However, New America uncovered that many terrorists and radicals were in fact legal US citizens.

Ethics of Biometric Identification

There is a large amount of speculation surrounding the ethics of biometric identification. Firstly, privacy advocates have pointed out that biometric identifiers, such as fingerprints, are unable to be changed. If biometric identifiers are compromised, there is virtually no way for an individual to protect themself. In addition, people do not tend to know when their biometric information is being collected, which infringes on their personal autonomy.

Surveillance & Profiling of Marginalized Communities

NYPD Demographics Division & Surveillance of Muslim Communities

The rise of counterterrorism propelled the rise of Islamophobia and negative connotations for people from Middle Eastern and Muslim backgrounds. In 2011, the New York Police Department’s Intelligence Division had been infiltrating and surveilling mosques, Muslim student associations, organizations, individuals, and community leaders within 100 miles of New York since 2002. However, this type of surveillance was not conducted against any other religious community. This surveillance was based on a “radicalization threat”, which included indicators such as wearing traditional clothing, growing a beard, abstaining from alcohol, “frequently attending a mosque or prayer services, and becoming involved in social activism”. This infringed on First Amendment Rights in addition to depicting baseline aspects of Islam as radical. The surveillance was conducted through photography, videos, police informants, and police “rakers”, which were tasked with blending in with compiling information about the community. This caused a debate about the role of everyday Muslims in terrorism: some felt it was necessary to survey Muslim communities as radical Islam spread. However, others argued it was unconstitutional and discriminatory to target individuals based solely on their faith.

Surveillance of Black Americans

FBI Surveillance of Black Identity Extremism

In 2017, the Federal Bureau of Investigation’s Counterterrorism Division was exposed for creating a new domestic terrorism category titled “black identity extremism”. This term was later changed to “racially motivated violent extremism”. The FBI developed this category following the murder of Michael Brown in Ferguson, Missouri, which they claimed was a catalyst for violence and anger. Following an investigation into FBI documents, The American Civil Liberties Union concluded that the FBI placed a notable amount of time and resources into assessing individuals and groups that may fall under the umbrella category of “black identity extremism”. This sparked heavy criticism from various social justice and civil liberties groups, claiming that it violated multiple rights and did not subject white extremist groups to the same treatment.

Surveillance of Protests Against Police Brutality

U.S. Law enforcement uses various technologies to track and surveil protests across the country. In 2015, the Baltimore Police Department utilized facial recognition software to identity those who were involved in protests against the murder of Freddie Gray. Following the death of George Floyd in May 2020, the U.S. Department of Homeland Security utilized predator drones to circle the protests and monitor individuals in at least 15 cities.

This surveillance of activism across the country drew criticism from various human rights groups, which pushed police departments to take action. In May 2020, San Francisco became the first city to outlaw law enforcement’s use of facial recognition. In June 2020, the New York City Council passed The Public Oversight of Surveillance Technology (POST) Act, which aims to increase transparency with regard to how New York law enforcement is using surveillance technology. However, police surveillance continues to be a source of tension, as some members of law enforcement claim that it is for the greater good, while activists argue it is a biased invasion of privacy and human rights.

Facial Recognition Technology & Racial Profiling

A 2018 study by the Massachusetts Institute of Technology, titled “Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification” found that facial recognition software used by law enforcement consistently had inaccurate results for individuals that were female, between the ages of 18 and 30, black, and had dark skin. In

Over time, errors in facial recognition have led to the false arrest of black people across the country. Najeer Parks of Woodbridge, New Jersey was wrongfully accused of shoplifting due to errors in facial recognition technology. Similarly, Robert Williams and Michael Oliver, who are both from the Detroit Area, were wrongfully arrested for crimes they did not commit.

The topic of facial recognition technology continues to be debated. Law enforcement members and officials argue that surveillance technology is imperative to safety. However, others argue that biased and flawed technology will only continue to exacerbate systemic racial discrepancies and incarceration.