20 years after 9/11. From privacy to monitoring and surveillance

Way back in May of 2000, in a world without smartphones or social media, the Federal Trade Commission (FTC) called on Congress to pass a law protecting the elementary privacy rights of all Americans.[1] It would be the opening at the time of many such recommendations made by the commission, and it reverberated similar, even more enthusiastic, pleas for action for privacy. The internet was starting to globalize and become an instrument in everyday life for everyone. The World Wide Web was an information space where documents and other web resources identified by URLs, interlinked by hypertext links, could be accessed via the Internet using a web browser and (more recently) web-based applications. As of the 2010s, the World Wide Web is the primary tool billions use to interact on the Internet, and it has changed people’s lives immeasurably. It has become known just as “the Web”.

Way back in February of 2004, Facebook was created. Three years later, the first smartphones were released.[2] Nevertheless, FTC surveys had already exposed that, regardless of gathering vast quantities of personal information from consumers, very few corporations shown anything about how this data was collected and used, and even fewer assured to provide even the most elementary protections for it. Therefore, the need to legislate was clear, even before we had smartphones, mobile devices, social networks, apps, and detailed tracking of our daily movements, locations and ultimately personal lives. So the new law was supposed to force the United States administration and the United States corporations to inform people about the kind of data collected in their searches, communications and data collection.[3] However, this never happened.

On September 11, 2001, at 8h45 a.m. on a clear Tuesday morning – exactly 20 years ago from today – the Pentagon and the Twin Towers suffered a terrorist attack by al-Qaeda, an Islamist extremist group. This tragic event grounded the idea that zeal for the right to privacy and freedom of movement had helped terrorists attack United States soil. With the terrorist attack, all momentum around a privacy law stopped. The focus shifted from privacy to mass monitoring and surveillance. Accordingly, the national privacy law did not happen. In many ways, 9/11 obstructed the progress of privacy laws in the United States and gave the administration and corporations more room to collect data, as Peter Swire points out.[4]

In the first few weeks after 9/11[5], George W. Bush, then President of the United States, sanctioned the National Security Agency (NSA)[6] to conduct surveillance actions inside the nation which had been barred for decades by law and agency policies. When the NSA’s spying program was first exposed by the New York Times in 2005[7], Bush admitted responsibility only concerning the “Terrorist Surveillance Program”. This NSA program monitored the communications inside the United States of hundreds of people with alleged connections to al-Qaeda without any kind of citizen’s approval or the court-approved warrants ordinarily required for domestic spying.[8] At the time, administration officials were confident that the existing safeguards were adequate to protect the privacy and civil liberties of American citizens.

Forty-five days after 9/11 (October 26, 2001), Bush decided on behalf of national security and trying to prevent another terrorist attack, to create and implement the USA PATRIOT Act, a law that increased the power of surveillance to be carried out by the United States administration.[9] The terrorist attacks intensified debate over the issue of monitoring and surveillance by the government and law enforcement officials, with some advocating increased tools to help track down terrorists, and others cautioning that fundamental tenets of democracy, such as privacy, not be endangered in that quest. For example, the administration convinced the major telecommunications corporations in the United States to hand over the “call-detail records” of their customers. According to USA Today, this included “customers’ names, street addresses, and other personal information.” [10] The agency’s goal was to create a database of every call ever made within the nation’s borders. All of this was done without a judicial oversight. This meant that the normalization of mass surveillance in day to day life became the rule.[11]

With 9/11, the United States administration, and consequently in a knock-on effect the other governments around the world, were authorized to access tis citizens communications in the name of security, as Cindy Cohn stated,[12] chair of the Electronic Frontier Foundation (EFF).[13] Before, the idea was that democratic governments couldn’t directly access people’s communications unless there was any doubt or suspicion. With 9/11, the NSA’s strategy became collect first and analyze later.

The Muslim diasporic community in the United States was one of the most affected by these events and by the resulting changes, with some of the data justifying the inclusion of Americans on lists of suspected terrorists and often without any valid explanation. One of the most well-known and notorious examples is that of “Baby Doe 1”, a baby, who, in 2012, was barred at an airport and targeted for “chemical testing” because his boarding pass (a set of letters SSSS) identified him as a “suspected terrorist or terrorist”. Those who get on the list can be required to provide access to smartphones, mobile devices and social media to compare with data from Terrorist Identities Datamart Environment (TIDE).[14] Therefore, the USA PATRIOT Act became the instrument for the widespread privacy-violating infrastructure of the post 9/11 era.

The United States administration, with assistance from the major telecommunications corporations, engaged in massive, illegal tracking operations of surveillance of domestic communications records of millions of Americans since at least 2001. Despite several leaks, for years the NSA argued that it did not collect bulk data of Americans’ communications in the United States. However, the revelations made by Edward Snowden[15] forced the agency to amend the narrative. In 2013, Snowden working for United States intelligence, revealed documents showing that United States telecoms were collecting information on the communications of people and handing it over to the intelligence services.

In 2015, the USA PATRIOT Act was replaced by the USA Freedom Act[16] which limited the administration’s power. With the USA Freedom Act, the NSA left the collection large-scale collection of communications metadata (e.g. phone numbers, location, email addresses and call duration) constantly and without legal justification. Except that this data, which is now kept by telecom operators or corporations like Facebook and Google, is made available to the NSA upon a warrant from a secret court.

The massification of internet-connected smartphones, social networks and geolocation apps do not make it easy to stand for privacy. Everyone is carrying high-end cameras and tracking devices. The ability to collect and process data has been increasing exponentially every year. The technical capability for mass surveillance is very new. And this fact, is because the technology has changed, not because 9/11 happened.

However, in recent years there have been developments in the defense of privacy. On the one hand, because of Edward Snowden’s revelations, on the other hand, because of the encryption of electronic communications. In the months after Snowden’s revelations about massive spying by the authorities, email providers like Google started offering encrypted messages and more online sites started using the HTTPS protocol (Hypertext Transfer Protocol Secure). By 2021, it is the norm on most of the email and messaging services, as WhatsApp, Signal and Telegram.

The United States administration has been trying to defend the successes of the surveillance police. In October 2013, the president of the NSA admitted that there was only evidence of the programme having barred 13 threats. One example is that of Najibullah Zazi, an al-Qaeda member allegedly planning bomb attacks on the New York underground.  However, a BuzzFeed investigation showed that the arrest would have been possible without the 9/11 surveillance rules.

Two decades after 9/11, one of its legacies is that many programs that were created to give people more security, have not worked. We have given up privacy for very little. Postponing reflection, puts democracy at risk. The lack of privacy in general, is creating a whole generation of people who are afraid to share their opinions. And last but not least, another Pandora box (that will not be addressed here) concerning privacy was opened in the last year and a half with the current pandemic …

 

[1] See https://www.ftc.gov/public-statements/2000/02/privacy-internet-evolving-legal-landscape (accessed 08 Sep 2021).

[2] The iPhone was released in the United States on June 29, 2007.

[3] See https://www.commerce.senate.gov/2020/9/revisiting-the-need-for-federal-data-privacy-legislation (accessed 08 Sep 2021).

[4] Leading privacy and cyber law scholar, former Chief Counselor for Privacy, in the United States Office of Management and Budget, and the first person to have had United States government-wide responsibility for privacy policies.

[5] “9/11” is shorthand for the terrorist attacks carried out by al-Qaeda, to the Pentagon and the Twin Towers which occurred on the morning of September 11, 2001. If the term identified literally a date, it also became an acronym for the events of September 11, 2001. Two of the hijacked planes were flown into the twin towers of the World Trade Center in New York City, a third plane hit the Pentagon just outside Washington, D.C., and the fourth plane crashed in a field in Shanksville, Pennsylvania. Almost 3000 people were killed during the 9/11 terrorist attacks, which triggered United States initiatives to combat terrorism and defined the presidency of George W. Bush. See https://dictionary.cambridge.org/dictionary/english/9-11 (accessed 08 Sep 2021).

[6] The largest and most secretive intelligence agency of the United States, so intent on remaining out of public view that it has long been nicknamed “No Such Agency.” It breaks codes and maintains listening posts around the world to eavesdrop on foreign governments, diplomats, terrorists, drug lords, etc.. However, it ordinarily operates under tight restrictions on any spying or disseminating information on Americans.

[7] The White House asked The New York Times not to publish the article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny.

[8] https://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.html and https://www.nytimes.com/2015/11/18/opinion/mass-surveillance-isnt-the-answer-to-fighting-terrorism.html (acessed 08 Sep 2021).

[9] https://www.everycrsreport.com/reports/RL31408.html#TOC3_1 (accessed 08 Sep 2021).

[10] http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm (accessed 08 Sep 2021).

[11] With a strong evidence with the current pandemic that will not be addressed here.

[12] Cohn has been named to TheNonProfitTimes 2020 Power & Influence TOP 50 list, honoring 2020’s movers and shakers. In 2018, Forbes included Cohn as one of America’s Top 50 Women in Tech. The National Law Journal named Cohn one of 100 most influential lawyers in America in 2013, noting: “[I]f Big Brother is watching, he better look out for Cindy Cohn.” See https://www.eff.org/about/staff/cindy-cohn (accessed 08 Sep 2021).

[13] A non-profit organization dedicated to protecting privacy in the digital environment. Cohn first became involved with EFF in 1993, when EFF asked her to serve as attorney in the First Amendment challenge to the United States export restrictions on cryptography. See https://www.eff.org/about (accessed 08 Sep 2021).

[14] United States administration central database on terrorism from military and intelligence sources around the world. Includes contains highly classified information provided by members of the Intelligence Community such as CIA, DIA, FBI, NSA, and many others.

[15] Computer analyst whistleblower who provided the Guardian with top-secret NSA documents leading to revelations about US surveillance on phone and internet communications. See https://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/1 (accessed 08 Sep 2021).

[16] A long acronym for Uniting and Strengthening America by Enforcing Rights and Ensuring Effective Discipline over Monitoring.