Government Surveillance: Overview

Introduction

In the United States, government surveillance plays a complex role in balancing national security with individual privacy rights. Agencies like the NSA, FBI, and CIA engage in various forms of monitoring, including wiretapping, data collection, and tracking online activities. Striking the right balance between security and civil liberties remains a controversial topic.

As part of its terrorist surveillance program, the United States National Security Agency (NSA) conducted wiretapping and surveillance programs without judicial oversight from 2001 to 2006. Wiretapping refers to the use of concealed listening or recording devices attached to communications circuits such as computers or telephones. Wiretaps are typically used by law enforcement and intelligence agencies to gather information. In 2006, a US District Court judge ruled that the NSA’s surveillance program was unconstitutional.

Supporters of the surveillance program argue that wiretaps are a necessary tool for preventing terrorist activity. Some argue that the current process of judicial review and oversight is obsolete given the nature of the terrorist threat, and that the president has been forced to engage in aggressive measures to ensure national security.

President George W. Bush was accused of misusing his presidential powers in authorizing the NSA to conduct surveillance without judicial oversight. The administration defended the president's actions as justified, citing Article II of the US Constitution, which outlines the inherent powers of the presidential office, and the congressional authorization for the use of military force against Iraq.

Critics have argued that mass wiretapping is an inefficient way to gain information about potential terrorist threats, and that the current NSA program is a violation of the First Amendment and the right to privacy. Some critics have also raised concerns that the government could use information gained in wiretaps to persecute people whose activities are seen as “un-American.”

Understanding the Discussion

Authorization for the Use of Military Force Against Iraq Resolution of 2002: The law passed by Congress that allowed President George W. Bush to launch the invasion of Iraq, and subsequently used to authorize additional surveillance and intelligence measures intended to prevent terrorism.

Foreign Intelligence Surveillance Act (FISA): A United States law established in 1978 which outlines the procedures for US surveillance of foreign governments and individuals. The act was revised in 2001 to allow for the surveillance of foreign nationals who are not associated with foreign governments (i.e., suspected terrorists).

National Security Administration/Central Security Service (NSA/CSS): An office of the United States Department of Defense concerned with gathering and analyzing information for national defense and security and headed by the Director of National Intelligence.

USA PATRIOT Act: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (often referred to simply as the “Patriot Act”), enacted in October 2001, explicitly defines and expands the power of law enforcement agencies to investigate and prevent terrorism.

War on Terror: A term used to encapsulate several military and legislative actions taken by the United States and several allied nations since 2001 to eliminate terrorism on a global scale.

Wiretap: A surveillance method used to intercept information passed through telephone, cable, or telegraph systems.

History

The first use of wiretapping in the United States came before the invention of the telephone, when law enforcement agencies began eavesdropping on telegraph communications. In the 1860s, several states enacted laws that made it illegal to intercept telegraph communications.

By the 1890s, both telephones and wiretapping were common in the United States. Phone companies regularly assisted the police in establishing wiretaps on customers’ phone lines. At the turn of the century, the media criticized state governments for allowing wiretapping without oversight. In response to public sentiment, phone companies stopped aiding the police with wiretapping. Several states passed laws banning the use of eavesdropping altogether, while other states required police to obtain court approval before establishing a wiretap.

In 1967, the Supreme Court ruled that wiretapping evidence constituted an illegal search and seizure. Congress responded by passing the Omnibus Crime Control and Safe Streets Act in 1969, which made wiretapping and electronic surveillance legal, but required judicial approval for any surveillance program. Some states continued to prohibit wiretapping despite federal law.

Throughout, Black people were disproportionately the subjects of government surveillance. From 1956 to 1971, the FBI's Counter Intelligence Program (COINTELPRO) used a variety of surveillance techniques to surveil organizations they deemed subversive, including feminist organizations, civil rights and Black power movements, and anti-Vietnam War organizers, among others. Leaders of the Black Panther Party were especially targeted, while Attorney General Robert F. Kennedy authorized a wiretap on civil rights leader Martin Luther King Jr.

In 1972, the Supreme Court ruled that warrantless wiretaps were illegal, even in cases involving national security. Law enforcement agencies argued that the process of judicial oversight limited their ability to effectively combat crime. For example, wiretapping was a popular surveillance technique used by protection agencies after the start of the so-called war on drugs, which began in 1971. Even with such oversight, the use of wiretapping ballooned as telecommunication companies' cooperation with law enforcement grew. In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which updated the judicial oversight procedure for wiretapping and other forms of electronic surveillance.

With the advent of computer communication in the 1980s, law enforcement agencies began gathering information by intercepting e-mail and text message communications. Since these forms of communication do not transmit a person’s voice, they were not protected under previous court decisions. In 1986, Congress enacted the Electronic Communications Privacy Act, which extends judicial oversight to surveillance of e-mail, text, and cellular phone communication.

On three occasions (following the World Trade Center bombing in 1993, the 1995 Oklahoma City bombing, and the 1998 bombing of the Olympic Games in Atlanta), President Bill Clinton petitioned Congress to expand the powers of federal agencies to conduct surveillance. In each case, Congress voted to maintain existing restrictions. Following the terrorist attacks of September 11, 2001, Congress passed the USA PATRIOT Act, which expanded the surveillance powers of federal agencies and removed some requirements for judicial oversight.

In 2005, the NSA was accused of conducting warrantless wiretapping in violation of FISA provisions and the US Constitution. President George W. Bush was further accused of explicitly ordering NSA agents to conduct surveillance without obtaining judicial approval. Debate over the Bush administration’s surveillance program extended into 2006, with legislators calling for an investigation. In February 2006, the Senate voted not to conduct an investigation into the NSA’s activities, but a federal judge ordered the Bush administration to produce confidential documents regarding the scope of the NSA’s activities.

In May 2006, articles appeared in the press revealing that the Bush administration and the NSA had authorized installing computers in most of the nation’s telecommunications hubs to intercept and analyze telephone calls and e-mails. The telecommunications companies were accused of assisting the NSA in violating Americans’ right to privacy, and numerous lawsuits were filed alleging invasion of privacy and violation of First Amendment rights. However, in July 2008, the collective branches of the government passed a bill granting immunity from lawsuits to any telecommunication company that engaged in wiretapping at the direction of the federal government.

In August 2006, a US District Court judge ruled on a case brought by the American Civil Liberties Union (ACLU) against the NSA. The court ruled that the terrorist surveillance program was unconstitutional, and called for the program’s termination. However, in July 2007, the decision was overturned by a circuit court, and in February 2008, the Supreme Court declined to review the case.

The NSA and the Bush administration argued that their surveillance program was legal under the USA PATRIOT Act and as an extension of the Authorization for the Use of Military Force Against Iraq. In November 2006, the Department of Justice announced that it would begin an independent investigation into the NSA surveillance program. However, this initiative was off to a poor start when President Bush initially refused to grant the necessary security clearance to the attorneys assigned to the investigation.

Once some review of the agency’s actions finally took place, several privacy rights groups filed Freedom of Information Act (FOIA) requests to obtain access to the findings. However, these requests were denied by the Justice Department, and a court battle ensued over whether such documents were required to be released under the FOIA. In 2008, a federal court ruled that the Justice Department could refuse the release of many of the documents, citing national security reasons, but planned to engage in a private, closed review of several other documents to determine whether they could be released.

Government Surveillance Today

Congress voted to extend certain provisions of the Patriot Act in May 2011, including a law that allows the use of wiretaps to spy on suspected terrorists. Lawmakers also extended a law that allows the government to obtain an individual’s personal belongings in the event of a terrorist investigation.

The controversy surrounding the Patriot Act continued in 2012, when Senators Ron Wyden of Oregon and Mark Udall of Colorado wrote to Attorney General Eric Holder demanding that he release information to Congress and the public on how the government obtains information on civilians through the Patriot Act. The two senators asserted that the Patriot Act abuses its power and creates the potential for the US government to spy on every American. They argued that, in a democracy, the public as voters has the right to know the secrets of the Patriot Act that the government is withholding. The Justice Department, however, declined to release confidential information in order to preserve national security.

In mid-2013, Edward Snowden, an employee of an NSA defense contractor, accessed and leaked highly classified information about the security agency’s secret bulk data collection programs. Snowden’s information revealed that the US government had forced Verizon, Google, Facebook, Apple and other American internet companies to give the NSA access to the data of millions of their customers. Though NSA spokespersons and President Obama tried to assuage privacy concerns, Senator Dianne Feinstein (D-California), chair of the Senate Select Committee on Intelligence, stated that the committee had not been able to adequately oversee these activities. In 2020, the court ruled that the NSA's surveillance program and data collection had been unlawful.

Also in 2020, Congress reauthorized the USA Freedom Act of 2015, which enacted reforms to surveillance programs, including ending bulk data collection and mandating transparency. Despite restrictions, a transparency report from the Office of the Director of National Intelligence showed that the FBI used FISA to search the communications of up to 3,394,053 US citizens without a warrant between 2020 and 2021. In 2024, Congress extended FISA while simultaneously rejecting amendments to the act that would authorize stricter rules around the incidental collection of US citizens' data without a warrant.

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