25 years after 9/11: Debate over govt surveillance powers persists

At stake is Section 702 of the Foreign Intelligence Surveillance Act, enacted in 2008 to retroactively justify the federal government secretly gathering personal electronic communications between U.S. and Afghan citizens years after 9/11.

On paper, FISA Section 702 allows federal intelligence agencies to conduct warrantless electronic surveillance on foreign nationals of suspicion.

In practice, however, the electronic data of American citizens – including emails, text messages, and phone calls – are routinely collected as well.

Not only can intelligence agencies store that data for up to five years, but intelligence agents can and do routinely search that data without obtaining a warrant, known as “backdoor searches.”

Declassified government documents and a report from the Privacy and Civil Liberties Oversight Board show that federal intelligence agencies have performed millions of “backdoor” searches over the span of decades, including 57,000 in 2023 alone.

In one of the most infamous known cases, FBI agents scoured the data of 19,000 donors to a congressional campaign. Tens of thousands of American protestors or those simply suspected of “civil unrest” have also had their communications spied upon, government reports show.

The issue is particularly pressing now, as rapid advancements in AI make Americans’ privacy even more vulnerable than when Section 702 was enacted in 2008.

Federal agents can simply feed the data into an AI model and effectively create dossiers on innocent U.S. citizens, a process that would normally take enormous amounts of time and money.

Though the U.S. Intelligence Community and the Department of Justice have previously claimed they aren’t using AI in FISA databases, they have failed to answer lawmakers’ requests for proof.

The issue proved so divisive that Congress failed to renew congressional authorization of Section 702 after a bipartisan group of lawmakers tanked an extension over demands for reforms.

Government surveillance and data collection activities can still continue without interruption through March 2027, however. That’s because the FISA Court approves year-long certifications for Section 702, which remain in effect even if the underlying authority has expired.

For now, communications providers are still legally required to assist the federal government with Section 702 surveillance and turn over targets’ communications.

Congressional leaders in both parties and both chambers have historically been hesitant to implement reforms. Notable reformatory legislation like the Amash–Conyers Amendment in 2014 and Rep. Andy Biggs’, R-Ariz., bill in 2024 failed on the House floor after leadership opposed it.

But Congress fails to ban federal agencies from searching Americans’ data without a warrant, as well as prohibit the government from purchasing citizens’ personal data from data brokers, civil rights watchdogs warn it could permanently kill privacy rights.

“If the government is purchasing our data and our location data and they can use artificial intelligence to create these kinds of profiles, then there is no privacy,” Don Bell, policy counsel at The Constitution Project at the Project On Government Oversight, previously told The Center Square.

“They can reach into our lives in the most invasive way possible, and they can do it at scale,” he added. “Entire communities can be surveilled, entire groups of people.”