Mass surveillance has become one of the U.S. government’s principal strategies for protecting national security. Over
the past seven years, the government has asserted sweeping power to conduct dragnet collection and analysis of innocent
Americans’ telephone calls and e-mails, web browsing records, financial records, credit reports, and library records.
The government has also asserted expansive authority to monitor Americans’ peaceful political and religious activities.
The government’s surveillance activities are not directed solely at suspected terrorists and criminals. They are directed
at all of us. Increasingly, the government is engaged in suspicionless surveillance that vacuums up sensitive information
about innocent people. And this surveillance takes place in secret, with little or no oversight by the courts, by Congress,
or by the public.
Using their power to collect massive amounts of private communications and data, agencies like the Federal Bureau of
Investigation (FBI) and the National Security Agency (NSA) apply computer programs to draw links and make predictions
about people’s behavior. Tracking people two, three, four steps removed from the original surveillance target, they build
“communities of interest” and construct maps of our associations and activities. With this sensitive data, the government
can compile vast dossiers about innocent people. The data sits indefinitely in government databases, and the names of
many innocent Americans end up on bloated and inaccurate watch lists that affect whether we can fly on commercial
airlines, whether we can renew our passports, whether we are called aside for “secondary screening” at airports and
borders, and even whether we can open bank accounts.
AMERICA’S
SURVEILLANCE
SOCIETY
Dragnet surveillance
undermines the right to privacy
and the freedoms of speech,
association, and religion.
THE USA PATRIOT ACT OF 2001
The USA Patriot Act dramatically expanded the FBI’s power to
conduct surveillance inside the United States. It expanded the
FBI’s authority to install wiretaps without criminal probable
cause, provided statutory authority for so-called “sneak-andpeak”
searches, and extended the FBI’s power to issue “national
security letters” (NSLs). The
FBI uses NSLs to compel Internet
service providers, libraries,
banks, and credit
reporting companies to turn
over sensitive information
about their customers and
patrons. Because NSLs can
be issued without prior court
approval and without probable
cause, the FBI issues tens of thousands of NSLs every year. And it
routinely imposes “gag” orders that prohibit NSL recipients from disclosing
even the mere fact that the FBI approached them for information.
THE NSA’S WARRANTLESS WIRETAPPING PROGRAM
In 2005, President Bush acknowledged that he had secretly authorized
the NSA to conduct warrantless surveillance of Americans’
international telephone calls and e-mails. The NSA’s
program, which operated in clear violation of both the Foreign Intelligence
Surveillance Act (FISA) and the Constitution, allowed the
government, with the assistance
of major telecommunications
companies, to gain direct access
to the nation’s telecommunications
infrastructure.
THE FISA AMENDMENTS ACT OF 2008
Two judges considered the legality of the NSA’s warrantless wiretapping
program; both found that the program violated FISA. The
Bush administration therefore pressured Congress to amend FISA,
and in July 2008 Congress obliged by enacting the FISA Amend-
The list of new surveillance programs and authorities is long—too long to provide here. But among the tools
that the government has used to collect information about innocent Americans are:
DATA MINING
Data mining is the process of sorting through massive amounts
of information in order to detect patterns and aberrations. In
order to mine data, the government needs to create huge databases
of information—databases that include information not
only about suspected terrorists but about innocent people as
well. The theory that underlies the databases is the theory that
nonconformity is suspicious, which is a theory that is dangerous
in itself. But the databases are made more problematic because
they contain thousands of errors—errors that can ultimately affect
whether a person can board a commercial airline, renew her
passport, cross the border without secondary screening, and
open a bank account. There are no meaningful restrictions on the
government’s data mining activities.
ments Act of 2008. The Act gave the NSA virtually unchecked
power to conduct warrantless, dragnet collection of Americans’
international communications. The law also granted sweeping immunity
to the telecommunication companies that facilitated the
NSA’s warrantless wiretapping program.
PROGRAMS THAT TRACK LAWFUL POLITICAL ACTIVITY
In connection with its “Threat and Local Observation Notice”
(TALON) database, the Pentagon monitored at least 186 anti-military
protests in the United States. The Pentagon also generated
reports about lawful political activity by groups such as Veterans
for Peace and the War Resisters League, which advocate nonviolence.
The FBI has similarly focused on peaceful political activity,
monitoring the lawful activities of organizations including the
American Friends Service Committee, the American-Arab Anti-
Discrimination Committee, Students for Peace and Justice,
Greenpeace, and PETA. In some cases the FBI even sent federal
agents to infiltrate the organizations.
PERVASIVE VIDEO SURVEILLANCE
An increasing number of American cities and towns have spent
taxpayer dollars to create elaborate camera and video surveillance
systems designed to monitor public places such as parks,
plazas, and sidewalks. Governments are also accessing images
collected by privately-owned camera and video systems. With an
extensive network of surveillance cameras, the government can
indiscriminately track everyone’s movements and activity, without
any suspicion of wrongdoing. There is nothing to stop government
officials from using the cameras for inappropriate
purposes such as tracking people for their own entertainment,
monitoring political protests, or targeting racial or religious minorities.
While the government’s surveillance powers have expanded dramatically, regulation and oversight has been watered
down rather than strengthened. The government has more information, but the limitations on how the information
can be used are fewer and weaker.
FUSION CENTERS
Fusion centers were originally created as hubs to improve the
sharing of anti-terrorism intelligence between state, local, and
federal law enforcement agencies.Today, these centers are
shrouded in secrecy and operate without any legal framework or
oversight. With a vague and expansive mission to collect information
about all crimes and hazards, fusion centers house law
enforcement, intelligence, and private sector data that is shared
not only with law enforcement but with the military and some private
companies.
• Between 2003 and 2006,
the FBI issued almost 200,000
national security letters.
Only one led to a terrorism
conviction.
• In 2008 the NSA’s spying
budget was $47.5 billion.
Dragnet monitoring of innocent
people does not make us safer
Many experts believe that dragnet surveillance is ineffective
as a means of identifying would-be terrorists. Mass surveillance
programs that are not based on suspicion waste time
and resources, creating bigger mountains of information that
law enforcement and intelligence officials must sift through in
order to find true threats.
It’s a mistake to think that we can make ourselves safer by
sacrificing our right to privacy. The Fourth Amendment’s prohibition
against suspicionless searches protects privacy, but it
also makes government more effective. It channels our limited
investigative resources away from innocent people and towards
actual threats.
We should certainly never trade liberty for the mere
appearance of security.
1 Lowell Bergman, Eric Lictblau, Scott Shane, and Don Van Natta Jr., Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends, Jan. 17, 2006.
2 Brian Ross, Vic Walter, and Anna Schecter, Inside Account of U.S. Eavesdropping on Americans, ABC News, Oct. 9, 2008.
3 Jeff Jonas and Jim Harper, Effective Counterterrorism and the Limited Role of Predictive Data Mining, CATO Institute Policy Analysis, Dec. 11, 2006,
http://www.cato.org/pubs/pas/pa584.pdf.
“We'd chase a number, find it's a school teacher
with no indication they've ever been involved in
international terrorism—case closed.”
“After you get a thousand numbers and not one
is turning up anything, you get some frustration.”
—Former FBI official on useless leads passed to FBI
from NSA warrantless spying program1
dequately protected by the NSA’s policies.
“Predictive data mining is not well suitCASE STUDY: National Security Letters
In 2005, the FBI used a National Security Letter to demand library patron records from Library Connection, a consortium
of 26 libraries in Connecticut. The FBI imposed a gag order on the librarians and as a result they were prohibited from
speaking to Congress during the debate about the reauthorization of the Patriot Act. Bizarrely, the FBI continued to enforce
the gag order even after The New York Times revealed Library’s Connection’s identity. With the assistance of the ACLU, Library
Connection filed suit to challenge the constitutionality of the gag order. The librarians prevailed and the FBI ultimately
withdrew both the gag order and the underlying demand for library patron records.
CASE STUDY: Monitoring Political Activity
A lawsuit by the ACLU of Maryland recently exposed a Maryland State Police (MSP) spying operation targeted at lawful protect
activity. Under the guise of investigating terrorist threats, the MSP assigned covert agents to infiltrate local anti-war
and anti-death penalty groups. As a result of the monitoring, the MSP placed 53 peaceful activists in official terrorism-related
databases, including two Catholic nuns, members of the Maryland Campaign to End the Death Penalty and the Baltimore
Coalition Against the Death Penalty, and a Democratic candidate for local political office. The ACLU of Maryland is
assisting the protesters and calling for legislation to prohibit a recurrence of the abuses.
CASE STUDY: Warrantless Wiretapping
In October 2008, two government whistleblowers revealed to ABC News that NSA spying programs supposedly directed at
suspected terrorists were in fact used to monitor the private communications of innocent Americans abroad, including
journalists, U.S. soldiers, and aid workers from groups such as the International Red Cross and Doctors Without Borders.
According to the whistleblowers, NSA personnel regularly passed around salacious calls, such as the private “phone sex”
calls of soldiers calling home. The ACLU has filed a Freedom of Information Act request to find out whether the privacy
rights of Americans are aed to the
terrorist discovery problem” and it “waste[s]
taxpayer dollars, needlessly infringe[s] on privacy
and civil liberties, and misdirect[s] the valuable time
and energy of the men and women in the
national security community.”
—Cato Institute Policy Analysis, December 20063
Anger over the British Crown’s use of “general warrants” to harass
and spy on the colonists is said to have sparked the American Revolution.
The revolutionaries fought for independence and then created
a system of government that protected personal liberty. The Constitution,
which enshrines the principle of checks and balances and
guarantees Americans the right to privacy and the freedoms of
speech and association, was meant to extinguish the unfettered
search power that the Crown had claimed.
Unfettered surveillance has implications for us as individuals. We act
differently when we think that people are watching. By reading our
emails, listening to our phone calls, tracking our financial transactions,
and accessing our library and Internet records, the government
monitors our most intimate thoughts and activities. In doing so it encourages
conformity and stifles creativity.
Unfettered surveillance also has societal implications, because it
chills political activity and dissent. It discourages individuals from associating
with controversial political groups, from donating to causes
that the government disfavors, and from expressing their views on issues
that are charged or controversial. Unfettered surveillance acts
as a kind of censorship, and it impoverishes the marketplace of ideas.
Our Nation’s founders knew that privacy was worth fighting for.
THE AMERICAN CIVIL LIBERTIES UNION protects the rights to privacy and free speech.
• We’ve fought legal battles concerning the NSA’s warrantless wiretapping program, the FISA
Amendments Act of 2008, the national security letter statute, and spying on peaceful protestors.
• We’re fighting in Congress to pass civil liberties-friendly national security policies.
• We’re engaged in public education efforts about the importance of privacy and free speech.
• Most importantly, we’re demanding that the new President and Congress respect the Constitution,
human rights, and the rule of law, and restore the liberties we’ve lost over the past
eight years.
JOIN US!
You can help support our work by becoming a member of the ACLU, telling your family and friends
about the importance of protecting privacy rights, and signing up to receive Action Alerts from
the ACLU Action Center.
To learn more, please visit www.ACLU.org/join.
“By casting the net so wide and continuing to collect on Americans
and aid organizations, it's almost like they're making the haystack
bigger and it's harder to find that piece of information
that might actually be useful to somebody.”
“You're actually hurting our ability to effectively protect
our national security.”
—Adrienne Kinne, former army linguist stationed at NSA
on agency’s monitoring of Americans abroad2