9/11 terror attacks led to an era of widespread surveillance of citizens

WASHINGTON — Soon after the al-Qaida attacks on Sept. 11, 2001, Congress and the White House loosened the reins on the intelligence community to pursue terrorists, opening the door to vastly more surveillance amid concerns about its impact on civil liberties.

Lawmakers passed the USA Patriot Act to make it easier for national security agencies to wiretap and spy on anyone, including Americans, relevant to a foreign intelligence investigation by relaxing a 1978 law that curbed domestic spying on U.S. citizens.

And President George W. Bush secretly authorized Stellar Wind, a National Security Agency program that scooped up without a warrant millions of overseas calls and internet metadata and content of foreign communications, including those involving U.S. persons — citizens or permanent residents.

The path Congress and Bush created has since then taken unexpected twists and turns.

Over the past two decades, there has been much wider surveillance than most people knew, bombshell leaks of secret programs, a pullback on some spying powers, surprising intelligence community transparency, and a growing skepticism of surveillance’s effectiveness — all during the rapid advances in technology and its increasingly widespread use.

"There's probably more government surveillance now than ever," said James Dempsey, the recently retired executive director of the Berkeley Center for Law & Technology at the University of California, Berkeley, Law School.

"We took an already robust electronic surveillance capability and magnified it immensely with a huge infusion of dollars at a time when more and more electronic data was being created, stored, transferred, and when more and more of our lives were going online," he told Newsday.

Security surge

The U.S. government’s national security apparatus has grown tremendously since 9/11. More than $800 billion since 2007 has been appropriated for the opaque "National Intelligence Program," according to the Office of Director of National Intelligence.

The scope of government surveillance also has broadened, that office reported.

National security agencies need to get a warrant to wiretap or spy on U.S. citizens under the Patriot Act and other U.S. laws because citizens are protected by the Constitution, which bars unreasonable searches and seizures.

But those agencies do not need a warrant for programs such as Stellar Wind that target foreign individuals in other countries in their investigations.

Under the Patriot Act, for example, since 2003 the FBI has issued 517,000 national security letters, each demanding financial, credit, phone account or electronic transaction records for multiple individuals, mostly U.S. persons.

And under Stellar Wind, the NSA once collected hundreds of millions of call detail records from telecommunications companies, including 151 million records in 2016, 534 million in 2017 and 434 million in 2018.

Official secrecy

During the first decade after 9/11, a bipartisan majority in Congress and both Bush and President Barack Obama approved and kept secret the scope of surveillance by reauthorizing the Patriot Act and passing other laws to pursue terrorists.

The Patriot Act added several new powers and modified the 1978 Foreign Intelligence Surveillance Act, the first law to rein in government spying in this country. FISA required individualized and reasonable, articulable suspicion to get a warrant, but the Patriot Act only requires a more easily met standard of relevance to a national security investigation.

Meanwhile, the NSA used the warrantless surveillance programs to secretly collect from communication companies millions of phone and internet content and metadata, such as appears on a phone bill with the number called, time, duration and the number at the other end.

Those collections would sweep up the information of U.S. persons who were in contact with citizens in other countries, and the law required that their identities be protected.

The first crack in the secrecy came in 2005, when the New York Times published a story that revealed Bush’s authorization of Stellar Wind and USA Today and Wired followed with further revelations.

But instead of ending warrantless wiretapping, the FISA court in 2006 approved it and Congress in 2008 made it part of FISA, as Section 702.

The watershed moment

Then, in 2013, former NSA contractor Edward Snowden cracked the secrecy wide open.

In what the Pentagon labeled the biggest theft of classified documents ever, Snowden downloaded more than 1.7 million intelligence files about global surveillance by the United States and other countries and leaked them to journalists.

The Guardian and Washington Post revealed details and slideshows of broad surveillance programs such as PRISM, Tempora and MUSCULAR that spied on people around the globe, including leaders of other countries.

It was a watershed event.

U.S. intelligence officials complained the leak eroded their work, forced the end to some targeted data collections, hurt relations with other countries and cooperating companies, and let terrorists and enemies learn how to avoid surveillance with encryption and other methods.

But the leaks had another effect: reform.

Obama and Congress directed the intelligence community to provide greater transparency about its surveillance programs, including annual reports of statistics of their activities and programs — though much of its work remains secret.

"There is no other country in the world that is as transparent and open about the scope of its [surveillance] activities as the U.S. government is," said Dempsey, who served on the federal Privacy and Civil Liberties Oversight Board, which officially reviews intelligence programs.

And in 2015 for the first time since 9/11, Obama and Congress curtailed NSA’s reach.

The USA Freedom Act stopped the NSA from its daily collection of all call detail records from the telecoms and instead required the NSA to gather only the records of specific targets of their investigations, their contacts and the contacts’ contacts.

"That was the most significant surveillance reform legislation since FISA. and it helped," said Elizabeth Goitein, director of the Brennan Center for Justice’s Liberty & National Security Program in New York. "But there's a lot more that needs to be done."

Growing skepticism

In the past five years, both the public and politicians have become more skeptical of government surveillance programs.

Surveys of Americans’ views turn up conflicting responses — they support government protection from terrorism but demand protections of their privacy. After the Snowden leaks, the Pew Research Center reported a majority disapproved of phone and internet tapping.

President Donald Trump turned on the intelligence community during the Mueller investigation, and blasted the FBI for withholding exculpatory information in its application for a FISA warrant to wiretap his former campaign aide Carter Page.

Last year, Trump urged Republican lawmakers to oppose renewing roving wiretaps, the lone wolf measure and Section 215, the business record provision that had authorized warrantless collection of call detail records.

Congress let them expire.

Effectiveness debated

As Congress weighs what to do next, questions have risen about the effectiveness of bulk collections of phone and internet data.

Fueling those doubts have been disclosures by the Privacy and Civil Liberties Oversight Board of serious problems with such collections, including backdoor searches of U.S. citizens in those databases.

The board in 2014 reported an early program of bulk internet metadata collection won approval from the FISA court in 2004, but after several years of operation and failure to comply with FISA court orders, the government terminated the program.

More recently, the board reported the call detail record program created by the USA Freedom Act cost $100 million from 2015 to 2019, but turned up only two leads, and only one was investigated.

The board also found the NSA determined the telecoms were sending records with data errors and unauthorized records. It purged all of four years of records, including 635 million in 2018.

And after weighing the program's intelligence value, its costs, compliance and data integrity concerns, the NSA in early 2019 suspended the call detail record program — a descendant of Stellar Wind.

That action, Dempsey said, "casts a huge cloud of doubt over bulk collection as an intelligence technique, leaving aside the privacy aspects."

The Office of the Director of National Intelligence, asked by Newsday about its programs’ effectiveness, pointed to its Section 702 web page that lists seven examples of data collections leading to arrests or deaths of terrorists or information that protected U.S. interests.

Among them were successes in located ISIS leader Hajji Iman, who U.S. forces killed in a firefight in Syria in 2016, and the arrest of al-Qaida-trained Najibullah Zazi in 2009 for an unrealized plot to bomb a New York City subway. Zazi then became an informant.

FBI Director Christopher Wray urged lawmakers last year to reauthorize the expiring surveillance authorities, even the suspended call detail record program. "They are vital," he said, "to our relentless efforts to keep something like 325 million American people safe."

But there are now calls for Congress to rethink and rework the overall statutory framework.

Based in part on FISA, passed in 1978, and the Electronic Communications Privacy Act of 1986, the framework doesn’t address today’s technology, the growth of encryption or third-party data brokers who sell personal information gathered by private companies to governments.

"It is time to rewrite the whole thing," said Goitein. "There's no reason not to comprehensively rethink foreign intelligence surveillance right now, but we also should be thinking about a broader approach to data privacy."

ACLU national security director Hina Shamsi said the rushed passage of the Patriot Act ushered in a new era of mass and bulk surveillance that dramatically expanded the surveillance state domestically and internationally.

"Today, all of us, everyone on the planet, we're generating more data than ever before, about our location, our associations, the most intimate details of our lives," she said.

"And the danger of surveillance now, in going forward, is of it becoming normalized, such that the very technologies we depend on will increasingly be used against us, to track us wherever we go, and whatever we do."