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ISSUE BRIEF

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Background 

The civil rights and civil liberties of the Arab American community have long been impacted by a national security frame. Following the tragic terror attacks on 9/11 the U.S. government has swiftly and increasingly taken an approach to national security that views Arabs and Muslims as potential security threats.

In the wake of 9/11, Congress rushed to pass a wave of national security legislation that empowered the President and the Intelligence Community to conduct mass surveillance of American citizens. The legal basis for these programs are found under a three-part surveillance architecture: the USA PATRIOT Act of 2001, the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, and Executive Order 12333. Since these laws have been enacted, Congress and the public have learned how the authorities granted in these laws have been used in ways never intended or foreseen, and that represent a massive expansion of the government’s surveillance of U.S. persons. Programs run under these authorities have had grave consequences for individual freedoms, including for Arab Americans and American Muslims who have been targeted by the NYPD’s infamous spying program, exposed to the worst of the FBI’s informant program, and disparately watch listed without probable cause or the ability to contest that designation.

The original post 9/11 overreach has been compounded by federal and state governments who have pursued similarly aggressive national security surveillance programs to counter the threat of the self-proclaimed “Islamic State of Iraq and the Levant” (ISIL) in the U.S. These programs, combined with technological advances, have significantly infringed upon the rights of Arab Americans and American Muslims in particular. These communities are seen – and often dangerously referred to as – the “frontlines of terror." Most notably, the emergence of “Countering Violent Extremism” programming under the Obama administration has enlisted community organizations and individuals to participate in the government’s counter terrorism surveillance operations under the guise of community engagement. These “targeted” programs are permitted under the expansive legal architecture of mass surveillance, and should be understood as mass surveillance programs in-and-of themselves.

The Problem 

Many of these national security programs, established post-9/11 and in response to the threat of ISIL, come at the expense of the Bill of Rights. Under President Trump, we fear even more egregious offenses to the civil rights and civil liberties of Arab Americans, American Muslims, and other communities that are targeted for their race, religion, political ideology, and activism. At times, candidate-Trump endorsed the idea of surveilling American mosques, creating a “Muslim database,” and many of his advisors are ardent supporters of bringing back the New York Police Department’s spying program for American Muslims. There have been persistent reports that President Trump’s team intends to rename “Countering Violent Extremism” to “Countering Islamic Extremism” – which reveals its true, and discriminatory, focus.

Unless the legal basis for these surveillance programs are reformed, the warrantless surveillance of U.S. citizens will continue, expand, and cause great harm to American rights. Many of these surveillance programs violate the Fourth Amendment by allowing the government to affect Fourth Amendment searches without a warrant or showing of probable cause. It has also been proven the knowledge of government surveillance has a deeply troubling chilling effect on citizens’ private and public behaviors.

The post-9/11 understanding of surveillance has pitted privacy against national security concerns. Reform efforts have correctly set out to reframe the discussion around surveillance programs so there is a greater balance between credible surveillance programs and the constitutional right to privacy for all U.S. citizens. Once again, however, we are seeing how events in the Middle East have tremendous implications on the protection of civil rights and civil liberties domestically. Now, surveillance powers are being emphasized as important tools for the fight against the self-proclaimed Islamic State of Iraq and the Levant (ISIL) and protecting the country from domestic terrorism inspired or directed by ISIL. Because of that threat, many elements of government – including the Congress, the Intelligence Community, and the Presidency – have pushed for new surveillance powers and fewer restrictions on law enforcement’s surveillance activities. 

Technology and law enforcement authority have often been used to persecute and target political dissent, with a disparate impact on communities of color. Similar alarms are raised with the use of facial recognition software and body-worn cameras, among other technology tools subject to abuse for surveillance. Across the country, state and local police departments are building their own face recognition systems that are unregulated. Law enforcement face recognition affects over 117 million persons, and has found to be largely inaccurate with a disproportionate impact on African American and immigrant communities. Thirty states allow law enforcement to run or request searches against their databases of driver’s license and ID photos. According to the Perpetual Line Up Investigative Report by Georgetown Law Center on Privacy and Technology, “of the 52 agencies that we found to use (or have used) face recognition, we found only one, the Ohio Bureau of Criminal Investigation, whose face recognition use policy expressly prohibits its officers from using face recognition to track individuals engaging in political, religious, or other protected free speech.”

In order to protect all Americans, including Arab Americans, from intrusive and unconstitutional surveillance, the legality of mass surveillance must be challenged and we must demand greater transparency from intelligence agencies. Some of the key advocacy goals for the Arab American community are:

  • Section 702 of the FISA Amendment Act of 2008 permits the NSA to collect the contents of communications, called metadata. Even though it’s ostensibly used for foreign targets, Section 702 surveillance sweeps up the communications of Americans, and the NSA has acknowledged  it searches this information, without a warrant, for the communications of Americans. The Section will expire in December 2017, and will certainly be proceeded by a policy debate about whether to reauthorize, reform, or sunset the authority it provides. This is an opportunity for Members of Congress and surveillance reform activists to find a better balance between lawful surveillance of foreign threats and protection of Americans’ right to privacy and warrantless search and seizure. 
  • Government watch listing practices must be revealed, reformed, and reigned in. It is only through leaked information that we learned Dearborn, a city of less than 100,000 people, is the second most watch-listed city in the country, following only New York City. We also learned a single social media post can land a U.S. citizen on a watch list, that consequently infringes upon that citizens’ rights, without ever having been charged of a crime. These few leaked facts are enough to raise serious alarm that government watch listing is in need of serious reform. Even more troublingly, American citizens do not currently have the adequate ability to challenge their placement on a watch list, which is a flagrant violation of every citizens’ right to due process. A federal court has ruled the government must reform its redress process, but has yet to meaningfully do so. 
  • The Obama Administration’s introduction of “Countering Violent Extremism” – as a concept for domestic counterterrorism and as a $10 billion undertaking of the Department of Homeland Security – has thus far amounted to discriminatory surveillance of Arab Americans and American Muslims. CVE’s two main programs threads, community engagement and social media campaigns, are surveillance initiatives by a different name. Demonstratively, the FBI recently announced they are rolling out “Shared Responsibility Committees” (SRCs) as part of CVE efforts. SRCs are a version of the FBI’s confidential informant program that seeks to empower community members to conduct surveillance and report their own community members who they conclude are at risk for becoming violent extremists to the FBI. This intrusive surveillance initiative further marginalizes and unravels American Muslims and the communities they live in. See the CVE issue brief for further information.

Moving Forward 

In order to achieve a better balance between necessary national security surveillance programs and constitutionally guaranteed rights, we are encouraging Congress and the Administration to:

  • Support and pass strong reforms to Section 702 of the FISA Amendments Act, which is set to expire in December 2017. 
    • Place additional limits on the FBI’s use of Section 702 data, which was recommended by the Privacy & Civil Liberties Oversight Board (PCLOB), but not satisfactorily implemented. In order for the FBI to access 702 data, they should be required to get a warrant before a judge, not just the approval of one of their peers.
    • Congress must insert a new sunset date for Section 702 of the FISA Amendments Act. Because 702 implicates the privacy of American citizens, the provision should be reviewed and debated regularly. An indefinite reauthorization of Section 702 is against the democratic principles of our nation.
    • End the discriminatory surveillance initiatives the Department of Homeland Security runs through “Countering Violent Extremism” that divide and damage the Arab American and American Muslim communities while infringing on their constitutional rights. See the CVE issue brief for further advocacy “asks.”
    • Reform and reign in the government Watch Listing practices.
      • The basis for adding U.S. citizens to a watch list needs to require probable cause, and the existing guidelines for adding a U.S. person to a watch list should be declassified for public debate.
      • The government must provide access to due process for Americans who feel they have been erroneously added to a government watch list. The Department of Homeland Security’s redress process must provide more information to individuals inquiring about their placement on a watch list, greater explanation as to the basis for that designation, and provide a more navigable process for Americans to pursue.
      • Reported examples that seem to clearly indicate discriminatory patterns in watch listing must be investigated. Congress, in its oversight capacity, should ask the Office of the Director of National Intelligence to review the procedures and outcomes of all watch lists that include names of U.S. persons. Cases of mistaken identity should be carefully considered and patterns of racial, religious, or other forms of discrimination must be reformed.
      • Pass laws to regulate the use of face recognition by law enforcement and reform the FBI’s face recognition system. 
    • Require reasonable suspicion of criminal conduct prior to a face recognition search by the FBI or law enforcement, and limit after-the-fact investigative searches to felonies.
    • Require Audits on the use of facial recognition software and real time scans of persons by street cameras by the federal, state, and local law enforcement, and on FBI search requests for state identification, photo databases, and license plates.

Download the AAI Issue Brief: Surveillance (2017)