The surveillance infrastructure, which is currently expanding and frequently justified in the name of national security, poses significant challenges to privacy. Numerous government organizations, such as the National Security Agency (NSA), eavesdrop on the private communications of unwary citizens, compile enormous databases of who they call and categorize suspicious behavior based on the most ambiguous criteria (American Civil Liberties Union, 2022a). Generally, through pre and post-9/11 government surveillance, more Americans have been susceptible to electronic monitoring due to Foreign Intelligence Surveillance Act (FISA) programs and bulk communications data collecting without a warrant, like the Patriotic Act.
The pre-9/11 historical surveillance example in the US is the FISA program. The US government agencies like NSA were authorized to conduct the monitoring process after court orders. US law enforcement institutions tasked with this process used wiretapping technology. The FISA Amendments Act created protocols to approve electronic trap and trace devices and pen registers. The FISA Act took effect in 1978 after Congress’ inquiries into Federal surveillance operations were implemented in the name of national security (Office of Justice Programs [OJP], n.d.). FISA only permitted searches if the main goal was to obtain foreign intelligence. Generally, the government can order this based on a judge’s unique finding that there is probable cause to believe someone is intentionally assisting a foreign power or terrorism.
President Reagan issued FISA Act executive order that initially allowed the government to carry out overseas surveillance. Although targeting specific Americans was prohibited under Executive Order 12333 of 1981, “bulk collection” was permitted, allowing for the massive gathering of communications and other individual data (Brennan Center for Justice [BCJ], 2018, para.7). Congress aimed to offer “judicial and congressional oversight of foreign intelligence surveillance activities” through FISA while retaining the confidentiality required to track risks to national security properly (OJP, n.d., para. 1). The collective gathering of details about citizens impacted society in various ways, especially leaking of confidential data. The Bill of Rights is the foundation for most judicial rulings that define American civil liberties. The Fourteenth Amendment safeguards civil rights and prevents state governments from violating other people’s freedoms. Therefore, I believe this law violated some 14th Amendment requirements since it abridged US citizens’ immunities and privileges.
Patriotic Act is an example of post-9/11 surveillance enacted to curb terrorism worries. The US agencies like the NSA, Department of Homeland Security, and Federal Bureau of Investigation are tasked with the monitoring process. Patriotic Act employed wiretapping technology but expanded the procedures to include more secret searches, access to personal records of third parties, and the government’s ability to check private property without informing the owner. The Patriotic Act was quickly approved for national security 45 days after 9/11(American Civil Liberties Union, 2022b). Essentially, this occurred when the authorities started tracking Americans’ online activities, gathering bank and credit reporting information, and monitoring phone and email interactions. The government ordered the surveillance to collect massive data to help curtail any probable terrorist activities on American soil and embassies abroad.
The executive order was issued under section 215 of the Patriot Act. Section 215 gave the NSA the authority to get “any tangible thing” from third parties, provided it could convince the FISA Court that the object was “relevant” to a probe into foreign intelligence (BCJ, 2018, para. 8). Essentially, the law gives the authority the right to search without judicial approval. An Amendment passed by Congress in 2015 stopped the NSA’s practice of bulk data gathering (BCJ, 2018). The Act has negatively impacted society since it abuses the privacy of citizens. I believe it violates civil liberties because federal agents can enter premises or properties without prior notice to the individuals.
In brief, Patriot Act and FISA programs have subjected more Americans to electronic monitoring during pre-and post-9/11 government surveillance. Programs established by Congress provided the NSA access to the records of alleged extremists and anyone who has contact with them. Nonetheless, history has demonstrated that powerful, covert monitoring techniques will almost surely be misused for political reasons and utilized disproportionately against marginalized populations and innocent citizens.
American Civil Liberties Union. (2022a). Privacy and surveillance. Web.
American Civil Liberties Union. (2022b). Surveillance under the Patriot Act. Web.
Brennan Center for Justice. (2018). Foreign intelligence surveillance (FISA section 702, executive order 12333, and section 215 of the Patriot Act): A resource page. Web.
Office of Justice Programs. (n.d.). The Foreign Intelligence Surveillance Act of 1978 (FISA). Bureau of Justice Assistance. Web.