Why Kamala Harris Must Break the Cycle of Unlawful and Abusive Government Surveillance

Since this nation’s founding, the executive branch has been granted — or has claimed — immense power to enforce the law, including the power to surveil, investigate, and impose criminal or other sanctions that deprive individuals of their freedoms. Today, national security agencies — including those with law enforcement, intelligence, homeland security, and defense functions — combine their expansive authorities with unprecedented digital tools that peer into our lives and collect immense amounts of information about us.

Campaign-trail promises to review and rein in the use of executive authority and surveillance tools are too often broken when a presidential candidate — Republican or Democrat — wins office, much to the detriment of our system of checks and balances, privacy, civil rights, and civil liberties. We’re calling on Vice President Kamala Harris to break this cycle if she’s elected in November. Her administration must protect us from Big Brother digital surveillance; end unjustified and discriminatory domestic surveillance and investigation of activists, communities of color, and disfavored groups; and implement strong safeguards for artificial intelligence and data privacy.

Learn more in our breakdown.

The Facts: The government has vast, unprecedented powers to peer into people’s private lives. Right now, it exploits at least three sources to conduct sweeping surveillance of Americans: Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes the collection of communications between U.S. persons and people outside the United States; Executive Order 12333, which allows the government to conduct bulk surveillance outside the U.S. and results in the collection of Americans’ private data; and the government’s use of commercial data brokers to purchase massive quantities of our private data.

Through these far-reaching surveillance methods, the federal government obtains access to incredibly sensitive information about Americans that can paint a detailed portrait of our private thoughts, relationships, and actions. The government regularly searches through that data for intelligence or domestic law enforcement purposes without a warrant and without notice or other significant safeguards necessary to protect our rights.

Domestic national security and counterterrorism policies and programs also pose a singular threat to Americans’ privacy, civil rights, and civil liberties. Federal agencies regularly exercise their authority and wield technology to disproportionately and wrongly surveil, investigate, watchlist, question, and detain at the border, and deny immigration benefits to vulnerable communities. These efforts often discriminate against racial and religious minorities and those who dissent against government policies, denying them the ability to participate as equals in our democracy.

Lastly, the federal government’s use of artificial intelligence (AI) urgently needs greater oversight and stronger safeguards to protect our privacy. Federal agencies are using algorithmic systems and AI to, among many other things, determine public benefits levels, assess families for child welfare proceedings, score incarcerated individuals for early release, and identify individuals for criminal investigations. Using AI in this manner can restrict our rights, and increase the risk of discrimination.

Why It Matters: When executive branch officials claim expansive powers to surveil and investigate individuals without meaningful judicial review and congressional oversight, these powers are all too easily abused.

Through dragnet surveillance, for example, the government regularly searches through troves of American’s data for intelligence or domestic law enforcement purposes without a warrant and without notice of its spying. Domestically, the FBI has spied on Muslim communities and, more generally, treated non-violent civil disobedience and vandalism as justification for conducting national security investigations of civil rights, social justice, and environmental activists. Recently, in 2020, the Justice Department deployed joint federal-state law enforcement partnerships to conduct “counterterrorism” investigations against racial justice protestors. The Department of Homeland Security, too, has focused its surveillance authorities on political and other constitutionally-protected speech, as well as activities far outside its homeland security mandate, including those of: journalists, racial justice demonstrators in the wake of George Floyd’s murder, and people simply reacting online to the Supreme Court’s decision to overturn Roe v. Wade.

In addition, U.S. national security agencies and the military are seeking to integrate AI into some of the government’s most profound decisions, including: who it surveils; who it places on government watchlists; who it subjects to intrusive searches at the border; who it labels a “risk” or “threat” to national security; and even who or what it targets with lethal force. These programs have not been meaningfully tested for efficacy, and have little to no safeguards or transparency.

How We Got Here: For more than 40 years, the government has used mass warrantless surveillance authorities — like Section 702 of FISA and Executive Order 12333 — in secret. People whose privacy rights are violated have had very little legal recourse due to the government’s refusal to disclose even basic information about this surveillance. On the rare occasions when people have brought legal challenges, the government’s use of the “state secrets privilege” has often thwarted court review of these intrusive spying programs.

Federal law enforcement and intelligence agencies’ use of national security investigative authorities flows in part from the USA Patriot Act of 2001, which enacted — for the first time — a definition of “domestic terrorism.” That definition is vague, covering acts deemed “dangerous to life” that “appear to be intended to” intimidate or coerce the public or the government. Law enforcement and intelligence agencies have used this definition to claim expansive investigative authorities that restrict our civil liberties. At the same time, federal nondiscrimination guidance permits profiling on the basis of race, religion, national origin, and other protected characteristics. As a result, recent history is rife with federal agencies’ use of its expansive authority to unfairly target people of color and other marginalized communities for surveillance, investigation, prosecution, and programs like watchlisting,

Additionally, national security agencies are increasingly developing and deploying AI systems, presenting immense risks to the rights and safety of people in the U.S. and abroad. While Congress and the Biden-Harris administration have taken steps to increase transparency, trust, and fairness in the AI tools used by many agencies, national security have been largely exempted from these important measures.

Our Roadmap: The ACLU will push a Harris administration to rein in surveillance use that discriminates against or invades people’s privacy.

In court, we will maintain our track record of exposing and challenging federal agencies’ infringements of individuals’ privacy, civil liberties, and civil rights. We will support and defend protestors, racial and religious minorities, immigrants, and others who are subjected to abusive surveillance, investigation, prosecution, and coercive measures like wrongful watchlisting. We will also sue federal agencies that abuse their coercive powers to illegally invade Americans’ privacy, or discriminate based on race, ethnicity, and other protected characteristics.

Although members of both parties have been quick to empower the executive branch in the name of national and homeland security, the ACLU has built a durable bipartisan coalition of advocacy organizations and former and current policymakers to push for limits on government surveillance. We will work with our allies to implement specific measures to rein in overbroad and unwarranted surveillance, and to change the politics around surveillance and individual liberty so that politicians are more likely to defend them. Across the country, the ACLU is already responding to attacks on dissent against the government, and rallying allies around the need for robust separation of powers, strong due process protections, and limits on executive power.

At the state level, we urge leaders to restrict the information they provide to federal agencies and departments. For example, the ACLU has successfully advanced state and local laws to increase community control over policing and championed legislation to restrict “reverse” warrants and end purchases of personal information from data brokers. These efforts would reduce the pool of data available to law enforcement, including federal law enforcement. In addition, we will urge state and local governments to end, or sharply limit, their participation in fusion centers and other state-federal intelligence hubs that have been rife with abuse.

What Our Experts Say: “Despite perennial campaign trail promises to rein in surveillance powers that violate our privacy and civil liberties, once in office, presidents from both parties have all-too-often doubled down on the same powers that consistently lead to abuse. Regardless of who is president, the ACLU will continue to shed light on the government’s warrantless spying on Americans and challenge wrongful and discriminatory surveillance in court to vindicate the rights of people who are harmed.” — Hina Shamsi, director of the ACLU National Security Project

“As a senator, Kamala Harris had a strong record of opposing legislative efforts to expand or extend surveillance powers. As vice president, she recognized the ‘moral, ethical, and societal duty’ to protect Americans from potential harms of AI. If elected president, we hope she brings that same fire to the White House and commits to restoring checks and balances to mass surveillance.” — Kia Hamadanchy, ACLU senior policy counsel

What You Can Do Today: The ACLU has long advocated for robust legislation that safeguards against all kinds of government overreach, including the unlawful warrantless surveillance of our private communications. Show your support by calling your senator to support the Fourth Amendment is Not for Sale Act now.