We Built a Surveillance State. What Now?

You are being watched. From Automated License Plate Readers on your street, to the mail at your local post office, to facial recognition technology at your nearby airport; from your social media posts on politics to the most private data on your phone. Our information footprints are enormous, but they may be outstripped by the government’s desire and ability to collect massive and intimate details about the who, what, when, where, and how of our personal lives.

In the 21st century, government data collection has exploded. Now, there are numerous technologies and offices used for surveillance, and nearly all of it is conducted without a warrant.

Surveillance technologies have evolved at a rapid clip over the last two decades — as has the government’s willingness to use them in ways that are genuinely incompatible with a free society. Today, at the federal, state, and local level, law enforcement agencies are increasingly deploying surveillance technologies with little public debate or oversight.

Our Constitution is meant to protect us from government monitoring, with good reason — authoritarian rulers and governments have long used spying as a means to control the public.

But government data collection is often justified with a series of false choices. We’re told that to remain safe, we must collect everything. That we must choose between liberty and safety. That those who do nothing wrong have nothing to worry about. These statements are dangerously wrong.

When a government has access to the connections between people and communities — between a woman and her doctor, a teen and an online LGBTQ+ support group, an organizer and the neighbors who will rally to their cause, it threatens our constitutional order. Surveillance poses a unique threat to those who might oppose government policies. This especially endangers communities that have been vilified or scapegoated to justify government abuse of power. 

In the hands of an authoritarian government, the surveillance state is like a loaded weapon.  There are unique dangers unaccountable surveillance poses to communities of color and historically marginalized groups, who already see disproportionate policing and surveillance.

It’s not too late to institute guardrails to protect our constitutional rights. But first, we need an honest assessment of where we now stand. So, how did we get here? Who built this state of surveillance? And what are the most pressing risks it poses?

The Rise of the Surveillance State

Today, local, state, and federal governments have taken data collection and sharing to new heights. But this level of surveillance is relatively recent. The intelligence failures that allowed for the attacks on September 11 poured the concrete of the surveillance state foundation. The gradual but dramatic construction of this surveillance state is something that Republicans and Democrats alike are responsible for.

Shortly after 9/11, Congress passed the USA PATRIOT Act, which provided sweeping powers for communications surveillance. An overzealous Bush administration eventually circumvented Congress and the courts to develop a massive program of collecting international and domestic communications data to prevent future attacks. It would be years before the public learned of this mass data collection.  

At the same time, Congress also established the Department of Homeland Security (DHS), which combined 22 agencies and departments in whole or in part to share intelligence. Since then, DHS, the Department of Justice, the FBI, the NSA, and other federal agencies have expanded their surveillance capabilities. 

These efforts are more organized than ever before, and federal agencies aren’t the only ones collecting and sharing information. The Department of Homeland Security supports the operation of “fusion centers” that connect agents with state and local officials and law enforcement to share information and pass along intelligence — much of it unverified. There is a history of abuse among fusion centers.

Civil society’s warnings and appeals for reform over the last decade have proven prescient — what began within government as the idea that intelligence sharing is an inherent good has morphed into a sprawling and dubious mandate to engage in mass surveillance at every level of government. 

In an age where technological advances have rapidly increased the capacity for collecting, analyzing, and sharing data on individuals and groups, we now have technology that would be the ultimate tool of an authoritarian leader or government.

This dangerous surveillance apparatus isn’t the responsibility of one party: The PATRIOT Act and its subsequent reauthorizations had tremendous bipartisan support.  

In fact, just a few months ago, Congress had the opportunity to reform a massive warrantless surveillance law that scoops up millions of Americans’ data without their knowledge or consent, known as the Foreign Intelligence Surveillance Act, or FISA. But ignoring the broad spectrum of concerns about the threat that mass warrantless surveillance poses to a free society — and pressed against a manufactured deadline — Congress reauthorized the law without any meaningful reforms. 

Most troubling, the underlying conversation about whether to reauthorize FISA this year was the wrong one. Most members of Congress understood the need to extend important national security authorities, but those who voted to reauthorize this massive surveillance authority did nothing to address the disproportionate impact that surveillance has on historically marginalized communities. Surveillance ends up targeting individuals and groups that are viewed with suspicion due to their very existence. Without meaningful guardrails, power gets abused, as it already had with the law Congress chose to reauthorize, and large numbers of people are impacted. When pressed by the intelligence community and administration, policymakers on both sides of the aisle failed to draw upon the lessons of history.  

We need our leaders to recognize that as the surveillance apparatus grows, it becomes an enticing prize for a would-be autocrat. Our country cannot build and expand a surveillance superstructure and expect that it will not be turned against the people it is meant to protect. This is particularly true when it comes to communities of color, which have a troubled history with being targeted by government surveillance.

Bodies can be controlled, protesters can be silenced, and communities can be ostracized. If we fail to put significant guardrails in place now, turning back the omnipresence of surveillance will soon become virtually impossible, given the extraordinary pace of technological advancement.  

The Most Urgent Threats

Concerns over surveillance are about as old as the republic itself. What makes this moment in our history unique — and an inflection point for the future of our democracy and privacy rights — is the revolutionary ability to collect, store, search, organize, analyze, and share massive troves of our personal data. 

The data that’s being collected reflect intimate details about our closely held beliefs, our biology and health, daily activities, physical location, movement patterns, and so much more. Facial recognition, DNA collection, and location tracking represent three of the most pressing areas of concern and are ripe for exploitation.

While the multitude of ways the government can collect your data all require different safeguards, facial recognition presents one of the greatest threats to personal privacy. Its use is pervasive — and is growing.

From the FBI, which oversees an enormous facial recognition apparatus that can scan hundreds of millions of photos on behalf of state and local law enforcement, to real time tracking via CCTV as you travel across town in places like New York City, using cameras disproportionally positioned on communities of color — a gargantuan federal, state, and local law enforcement data sharing ecosystem has been built, with both DHS and the Justice Department participating in much of the sharing.

Meanwhile, the government has also dramatically expanded its collection of DNA, data of the most personal nature, which can reveal our familial connections, our physical traits, and our sensitive medical vulnerabilities. 

The FBI holds the DNA profiles of millions of individuals, and a regulatory change expanding mandatory collection of DNA from detained migrants and asylum seekers, including children as young as 14, has grown the database to contain DNA samples of approximately 21 million people. In the hands of the wrong individual, or in the hands of government, this information can be abused in profound ways.  

As for the data collected by our digital devices, much of that information can be bought and sold to the government without a warrant or court order due to a legal gray area often called the “data broker loophole.” 

Your phone’s app history can reveal whom you’re intimate with. Your location history can reveal how often you visit a doctor and what kind of private health conditions you, your spouse, or children may have. Data brokers can use tens of thousands of data points to develop a detailed dossier on you that they can sell to the government (and others).

Essentially, the data broker loophole allows a law enforcement agency or other government agency such as the NSA or Department of Defense to give a third party data broker money to hand over the data from your phone — rather than get a warrant.

There is tremendous secrecy around how much our governments spend on data purchases, and how they actually use the data they collect. At the state and especially local level, you are unlikely to find a discussion on law enforcement data purchases and even less likely to find a line item in a law enforcement budget for data purchases. At the federal level, the scale and scope of data purchases could be hidden behind unnecessarily broad classifications that shield purchases from public scrutiny under the guise of protecting national security. To know we can all be surveilled at the most detailed level, without an explanation of why or how pervasive that surveillance is, is the anthesis of our constitutional order.

The Road Ahead

We know this surveillance data has been weaponized. As POGO has noted, the implications for our privacy and constitutional rights are visible for all to see, from buying data to track Black Lives Matter protestors to buying location data from Muslim prayer and dating apps to monitor Muslim communities.

The overturning of Roe v. Wade has given rise to fears that law enforcement agencies in states that outlaw abortion access could buy cell phone data to track and possibly prosecute people seeking reproductive health care, for those that travel to jurisdictions that protect that access. Just last year, we published an investigation on how law enforcement could use digital data to enforce anti-trans laws. And in February, an investigation by Senator Ron Wyden’s (D-OR) office illustrated how easily location data can be weaponized when it revealed that an anti-abortion organization tracked visits to nearly 600 Planned Parenthood locations across 48 states and provided the location data to one of the largest anti-abortion advertisement campaigns in the country.

The scope and scale of these purchases embodies the ethos after 9/11 of “collect it all,” which led to some of the great civil rights abuses of the 21st century, including the illegal NSA bulk collection program. 

Congress dismissed the pleas to establish guardrails on data purchases during the recent FISA reform fight, but it is easy to see federal, state, or even local law enforcement agencies exploiting the data broker loophole to enforce a possible federal abortion ban or current abortion and gender affirming care bans in states today.

No political party can be absolved for exerting its power to usher in and expand the bipartisan surveillance state. The changes, or lack thereof, in recent years that perpetuate warrantless surveillance without strong safeguards require a sustained federal, state, and local campaign to end the excesses of this post-9/11 era. 

If the last quarter century has taught us anything in its constant struggle to balance personal privacy and freedoms with national security and safety, it is that as long as the government has unchecked surveillance powers, we are neither safe nor free.