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Surveillance at the Margins

Katie Hahn wrote “Surveillance at the Margins” as part of the 2015 Humanity in Action Diplomacy and Diversity Fellowship. The research essay was first published in Shifting Paradigms (Humanity in Action Press 2016). The complete book is available for purchase on Amazon.


In 2013, Edward Snowden, a contractor for the United States’ (US) National Security Agency (NSA), became arguably the world’s most famous whistleblower when he revealed the extent of the NSA’s data collection practices. Snowden’s disclosures sparked media frenzy as information emerged about government collection of metadata, email content, and search histories, along with evidence of the NSA’s international datamining tool, Boundless Informant. Media coverage of the disclosures and public debate about the US government’s surveillance practices have largely focused on issues of privacy, efficacy, and legality. The predominant narrative argues that all Americans are victims who have had their civil liberties trampled upon by a power-hungry and unprincipled government. The indiscriminate nature of the government’s data collection practices is indeed cause for collective concern. However, perhaps more upsetting are the ways in which certain individuals and groups have been disproportionately targeted by these practices purely on the basis of their demographic.

This story, of particular populations enduring excessive scrutiny, has roots much further back in this country’s history. The US government has long used surveillance to monitor and control those it perceives to be threats to mainstream American society. These “threats” often include members of socially and economically marginalized groups such as immigrants and people of color. Similarly, a large sector of American citizenry can be counted upon to ignore these rights violations and invasions of privacy, because those being targeted do not fit the social conception of the ideal American citizen.

A classic sociological tenet, first established by George Herbert Mead, holds that social identities are created through ongoing interaction with those around us. Rather than being a purely positive construction, one’s identity is defined just as much by what one is not, as by what one is. Thus, ideas of similarity and difference are central to the development of both individual identities and the collective identities held by social groups.

This concept applies to the American identity. Though many diverse peoples of different races, religions, classes, and places of birth are, in fact, American citizens, our social conception of what it means to be American is much narrower. This limited definition of Americanness has developed gradually since this country’s birth through processes of social inclusion and exclusion that have resulted in our current image of the American citizen as middle-class, Christian, English-speaking, US-born, and white. (1) Individuals who do not possess this particular constellation of social identities are seen as outside of the American mainstream. They are seen as Other.

In the context of surveillance, those seen as Other, as less American, are also viewed as less deserving of the protection of the American government. In fact, the government has often been intimately involved in using surveillance to root out the ways in which these un-American Americans might threaten the security of other citizens. Many members of the general public regard surveillance as unproblematic. They ask why it should matter if the state looks into a person’s affairs if that person has nothing to hide.

This view, however, obscures the fact that greater surveillance inevitably leads to more discoveries of questionable activities. These discoveries are then used to prop up the stereotypes that lead to communities of color, of religious minorities, and of immigrants being disproportionately monitored in the first place. An “ends justify the means” logic is thus initiated whereby the belief that criminality is more pervasive in such marginalized communities is thought to warrant enhanced surveillance of these communities. Disproportionately monitoring communities that are perceived to be outside of the mainstream damages both members of these communities and American society at large, for it prevents a subset of Americans from meaningfully engaging in the American social and political systems while jeopardizing one of the values that Americans hold most dear: the right to privacy.

A Brief History of Government Surveillance

Government-sanctioned surveillance of US citizens’ communications dates back to at least Olmstead v. United States, a 1928 Supreme Court case challenging the constitutionality of warrantless wiretaps.

In Olmstead, the court ruled that evidence from such wiretaps had been obtained legally and did not violate suspected bootleggers’ Fourth or Fifth Amendment rights. This ruling effectively excluded telephone communication from constitutional protection against unreasonable search and seizure and self-incrimination. It is important that the parties involved in this case were bootleggers: manufacturers of illegal alcohol during prohibition who were, because of their criminality, considered to be outside of the mainstream. It is, perhaps, this Otherness that influenced the extent to which the court was willing to protect them.

Notably, Justice Louis D. Brandeis issued a dissenting opinion in Olmstead, in which he argued in favor of protecting telephone communication under the Fourth and Fifth Amendments. In his dissent, he presages contemporary surveillance by predicting an age in which “the Government, without removing papers from secret drawers” might “reproduce them in court.” (2) Brandeis warns:

“Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” (3)

Brandeis cautions against allowing a well-intentioned government to intrude upon individual freedoms, for such incursions place every citizen at the mercy of the government and its desired ends. Yet, the Olmstead ruling remained in place for almost 40 years and was only overturned in 1967 when the Supreme Court ruled in Katz v. United States that the reasonable expectation of privacy extends to telephone and electronic communications.

Despite legal provisions against warrantless surveillance, the government has a history of collecting data about its citizens, often in an effort to locate and build cases against those it finds to be subversive. The Armed Forces Security Agency (AFSA), the predecessor of the NSA, established “Project SHAMROCK” in 1945 in an effort to locate Soviet spies. The program involved the interception of thousands of telegraph messages entering and exiting the country, which was accomplished without warrants. (4) Though it was created to uncover espionage, AFSA regularly passed information regarding other crimes to the Federal Bureau of Investigation (FBI), CIA (Central Intelligence Agency), and Bureau of Narcotics and Dangerous Drugs.

In the 1960s, the NSA established an offshoot of Project SHAMROCK called “Project MINARET.” This second program monitored communications involving Americans on state-compiled “watch lists,” including Vietnam War critics and civil rights leaders. Not unlike recent data collection programs, Projects SHAMROCK and MINARET were dragnets used to uncover illegal activities where there was evidence of none, with a particular focus on those believed to be suspicious because of demographic characteristics or political leanings.

The FBI established similar intelligence efforts in 1956 with the development of the Counter Intelligence Program (COINTELPRO). COINTELPRO was a series of covert projects aimed at discrediting domestic political organizations that the government considered subversive through surveillance, harassment, and smear campaigns. Many of COINTELPRO’s activities were conducted illegally and targeted members of marginalized groups who were seen as disrupting the political order, such as members of the socialist, civil rights, Black Nationalist, American Indian, and women’s rights movements. (5) The program thus extended the function of law enforcement to include not only upholding the country’s laws, but also reinforcing its unwritten social and political systems.

COINTELPRO, Project SHAMROCK, and Project MINARET represent attempts to use surveillance in the service of social control. In each case, national security was employed as a justification for violating the civil liberties of those who challenged the power of dominant political and social groups in order to silence these individuals and discredit their activities. While a small number of the individuals targeted by this surveillance may have posed legitimate threats to the lives of US citizens, these persons were not selected for surveillance on those grounds alone. Rather, they were identified through their political affiliations and social identities.

Government monitoring marks an individual or community as deviant before the evidence that this monitoring is intended to collect ever surfaces. The presumption of wrongdoing that surveillance implies ostracizes its objects from society both by influencing how the surveilled group is publicly viewed and by making it more difficult for members of that group to conduct the activities of their daily lives. By targeting minority racial, ethnic, and political groups, the intelligence programs described above served to further marginalize the already marginalized. This isolation helped to uphold the existing political and social order, which served the white, US-born, politically moderate American mainstream. 

Post-9/11 Surveillance and National Security

After the attacks of September 11, 2001, government surveillance increased on the basis of protecting national security. The PATRIOT Act, passed shortly after the attacks in 2001, legalized surveillance of all non-US citizens and so-called “lone wolves,” or those suspected of engaging in terrorism, but not part of a terrorist organization. The PATRIOT Act also gave the government the authority to collect telephone records without the involved parties’ knowledge, monitor individuals rather than specific devices through “roving wiretaps,” and gather information using “national security letters,” or self-issued subpoenas.

Government agencies were thus given substantial capabilities to monitor the activities of non-citizens and some US citizens. This practice was further expanded by the 2007 Protect America Act and 2008 FISA Amendment Act, which removed a prior warrant requirement for government surveillance of foreign intelligence targets believed to be outside of the US and gave the NSA the power to monitor Americans’ international phone calls, text messages, and emails.

The US government has generally downplayed the expansive nature of the NSA’s surveillance efforts and justified them with the claim that terrorist operatives were the true targets. However, news such as a 2014 article in The Intercept have revealed the NSA to be spying on a number of US citizens whose only crime, it appears, is to be Muslim. (6) Not unlike earlier government surveillance efforts, the recent boom in NSA spying has broadly targeted a demographic group that is seen as threatening to American society. In most cases, this perceived threat has less to with physical danger and more to do with cultures, belief systems, and skin colors that differ from mainstream depictions of the American citizen.

Since revelations from sources such as AT&T technician Mark Klein, WikiLeaks, and, most famously, Edward Snowden, the NSA’s surveillance programs have received considerable pubic attention. However, the PATRIOT Act and similar laws also paved the way for FBI programs that have received less attention, but are no less notable.

In 2009, an article in Wired revealed that the National Security Branch Analysis Center (NSAC), a branch of the FBI, had collected over 1.5 billion records from private and public sources about both citizens and non-citizens. (7) The database enables investigators to conduct broad searches, such as inspecting the activities of all Pakistani taxi drivers, which the FBI did after receiving a hint that members of a Pakistani terrorist group might be working as taxi drivers in Philadelphia. That this hint required a blanket investigation of all Pakistani taxi drivers gives one a sense of the low threshold of proof that must be surmounted in order to justify violating individuals’ civil liberties.

In 2002, changes to the Attorney General Guidelines allowed FBI agents to visit any location or event that was open to the public without identifying themselves as government officials. This new policy has been used to infiltrate mosques and other religious settings, even in cases in which there is no evidence of terrorist activity. In 2008, several additional amendments were made to the Guidelines. These changes authorized the FBI to conduct “assessments” without evidence, suggesting that the subject of the assessment is involved in illegal activities or poses a threat to national security and without prohibiting the use of race, religion, and national origin as factors for initiating assessments. The amended Guidelines also endorse the use of invasive surveillance techniques during assessments and the infiltration of peaceful advocacy groups. Additionally, the Domestic Investigations and Operations Guide, an internal guide to implementing the new Attorney General Guidelines, authorized FBI agents to identify and geomap locations of concentrated ethnic and racial communities, collect the locations of “ethnically-oriented businesses and other facilities,” (8) and collect certain “behavioral and cultural information about ethnic or racial communities.” (9)

Policies such as these make clear that, although much data collection is conducted relatively indiscriminately, surveillance disproportionately aims to monitor and control select communities of racial, religious, and immigrant Others.

Public Opinion and Americans’ Tolerance of Surveillance

In recent years, surveillance has become a controversial issue not only in the US, but also internationally. In its 2014 Global Attitudes Survey, the Pew Research Center polled respondents in 44 different countries regarding their opinions of government surveillance. (10) While Pew found that the majority of American respondents (61%) considered US government surveillance of its own citizens to be unacceptable, this placed the US in the middle of the pack when it came to opinions about a government spying on its own citizens. Far more Germans (78%), French (82%), (11) and Spaniards (82%) found the practice to be unacceptable. Many factors, such as history, (12) culture, and demographics, play into public opinion.

However, as the following example illustrates, white Americans’ understanding that they are not the true targets of surveillance, as well as the widespread belief that targeting marginalized groups is appropriate, has undoubtedly contributed to the significant percentage of Americans who feel that government surveillance is acceptable: In 2012, amidst publicity about the New York City Police Department’s (NYPD) extensive surveillance of American Muslims, which reaches far beyond city limits and includes spying in locations ranging from mosques to elementary schools, a Quinnipiac University poll asked New Yorkers for their opinions about NYPD practices. When asked whether they felt the NYPD unfairly targeted Muslims or acted appropriately, 58% of respondents said that the NYPD acted appropriately and only 29% replied that Muslims were treated unfairly. (13) Opinions about NYPD treatment of Muslims were most favorable among white respondents, 66% of whom felt that the NYPD treated Muslims appropriately. Though this poll only reflects the opinions of New York City residents, it shows that many Americans feel that disproportionately surveilling certain individuals on the basis of religious affiliation is acceptable. Furthermore, in the US, Islam is frequently associated with specific ethnic and racial characteristics, and thus, though this poll specifically asked about religion, it is indicative of attitudes that are more broadly applicable to minority ethnic and racial groups.

Tolerance of surveillance practices that target certain demographic groups can also be seen in public opinions about stop and frisk laws, which allow the police to stop and search anyone who appears to be suspicious. Statistics show that people of color, particularly young Black and Latino men, are disproportionately stopped and frisked by the police. For example, a 2011 report by the New York Civil Liberties Union found that while Blacks and Latinos make up 52.7% of the New York City population, 87% of persons stopped and frisked by the police are Black or Latino. (14) A 2012 New York Times poll found that 64% of New Yorkers believe that the police disproportionately favor one race over the other, but a significant percentage still consider stop and frisk practices acceptable. (15) White respondents saw stop and frisk most favorably, 55% of whom thought the practice was acceptable. A 2013 Rasmussen poll surveyed a broader audience and found that 39% of white Americans favored having a stop and frisk law in their city and 43% believed stop and frisk laws decreased crime. (16)

Despite the well-publicized racial profiling involved in the implementation of stop and frisk laws, a significant percentage of Americans, particularly those who are members of the dominant racial group, are clearly in favor of such laws. Conversations about police practices like stop and frisk are usually divorced from conversations about NSA spying. Albeit on different scales, both are nevertheless examples of government agents disproportionately monitoring and controlling marginalized groups. Xenophobia, prejudice, and fear have motivated these discriminatory surveillance practices and caused many Americans to turn a blind eye towards them.

Conclusion

Recent trends in US government surveillance are part of a long tradition of heavily monitoring those considered to be outside of mainstream society. This surveillance is often ignored or even encouraged by large sectors of the American public due to fear and prejudice.

The US has never been a country, in which rights and liberties are bestowed equally, but this is an ideal, toward which we should be constantly striving. When certain communities are disproportionately scrutinized, members of these communities are more likely to be caught participating in illicit activities, thereby initiating a self-justifying cycle in which crimes that are uncovered appear to support the need for disparate levels of surveillance, which then lead to the discovery of more crimes in targeted communities. Additionally, members of these communities have less access to redress when they are wrongly accused or their privacy is illegally invaded due to their social location within systems that privilege the stereotypical American – that is to say, the white, Christian, middle-class, US-born American. Through this cycle, surveillance serves to further ostracize those who are already significantly disadvantaged by this country’s social and political systems.

The US has long sought to distance itself from tyrannical regimes that trample upon individual rights and liberties. We have chosen to protect people from surveillance, because privacy is one of those fundamental rights. In his dissenting opinion in Olmstead v. United States, Justice Brandeis wrote: “To declare that in the administration of the criminal law the end justifies the means – to declare that the Government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution.” (17)

That retribution has come in the form of self-censorship, of handicapped civil society, and of mistrust of the government. Surveillance affects us all, but it is felt most acutely by the communities of color, of religious minorities, and of immigrants that are most often its targets. These communities are not only marginalized by surveillance, but cannot speak up about the ways in which they have been and continue to be oppressed, and, without that ability to freely dissent, have little hope of change.


•     •     • 

About the Author 

Katie Hahn is a Community School Director at the non-profit organization Grand Street Settlement as part of New York Mayor de Blasio’s Community Schools Initiative. She received her Master of Social Work degree from the Silver School of Social Work at New York University while holding internships in the fields of mental health and child welfare. Hahn previously worked in educational programming in both New York City and Boston. She received her BA in Social Studies from Harvard University.

Citation

Hahn, Katie. “Surveillance at the Margins" In Shifting Paradigms, edited by Johannes Lukas Gartner, 56-65. New York: Humanity in Action Press, 2016.

Acknowledgments

The author and editor thank Henry Peck for his dedicated efforts in reviewing earlier versions of this article.

References

1. This process is explained at length and applied to different immigrant, ethnic, and racial groups in books such as Charles Mills’ The Racial Contract, Matthew Frye Jacobson’s Whiteness of a Different Color, David Montejano’s Anglos and Mexicans in the Making of Texas, and Mae Ngai’s “The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924” and Impossible Subjects: Illegal Aliens and the Making of Modern America.

2. Olmstead v. United States, 277 US 438, 474 (1928).

3. Ibid.

4. Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans: Book III (1976), 765.

5. Ibid, 3.

6. Glenn Greenwald and Murtaza Hussain, “Meet the Muslim-American Leaders the FBI and NSA Have Been Spying On,” The Intercept, July 9, 2014, accessed Jan. 31, 2016, https://theintercept. com/2014/07/09/under-surveillance.

7. Ryan Singel, “Newly Declassified Files Detail Massive FBI Data-Mining Project,” Wired, Sept. 9, 2009, accessed Jan. 31, 2016, http://www.wired.com/2009/09/fbi-nsac.

8. Federal Bureau of Investigations, “Domestic Investigations and Operations Guide,” 2011, sec. 43.3.2.1.

9. Ibid, sec. 43.3.2.5.

10. “Global Opinions of U.S. Surveillance,” Pew Research Center, 2014, accessed Jan. 31, 2016, http://www.pewglobal.org/2014/07/14/nsa-opinion/table/american-citizens/.

11. See: Angelique Chrisafis, “France passes new surveillance law in wake of Charlie Hebdo attack,” The Guardian, May 5, 2015, accessed Jan. 31, 2016, http://www.theguardian.com/world/2015/may/05/ france-passes-new-surveillance-law-in-wake-of-charlie-hebdo-attack. Since this poll, the French parliament has passed a law giving law enforcement far-reaching surveillance powers, indicating that the opinions of the French public towards surveillance may have changed. This law was passed in the wake of the Charlie Hebdo attacks, which sparked anti-Muslim protests and attacks in France. It seems likely that, not unlike in the US, the French view the true targets of surveillance as those outside of mainstream French society – in this case, Muslims.

12. For example, Germans’ opinions of surveillance are heavily influenced by the recent history of Stasi surveillance in the German Democratic Republic (former East Germany).

13. “New Yorkers say 2-1 Cops Treat Muslims Fairly, Quinnipiac University Poll Finds; Strong Approval for NYPD, Kelly, Bloomberg on Crime,” Quinnipiac University Polling Institute, 2012, accessed Jan. 31, 2016, http://www.quinnipiac.edu/news-and-events/quinnipiac-university-poll/new-york-city/release-detail?ReleaseID=1716.

14. New York Civil Liberties Union, “New NYCLU Report Finds NYPD Stop-and-Frisk Practices Ineffective, Reveals Depth of Racial Disparities,” NYCLU, May 9, 2012, accessed Jan. 31, 2016, http://www.nyclu.org/news/new-nyclu-report-finds-nypd-stop-and-frisk-practices-ineffective-reveals-depth-of-racial-dispar.

15. Michael M. Grynbaum and Marjorie Connelly, “Majority in City See Police as Favoring Whites, Poll Finds,” The New York Times, Aug. 20, 2012, accessed Jan. 31, 2016, http://www.nytimes. com/2012/08/21/nyregion/64-of-new-yorkers-in-poll-say-police-favor-whites.html?hp.

16. “What America Thinks: Stop and Frisk Debate Highlights Racial Divide Over US Justice System,” Rasmussen Reports, Nov. 6, 2013, accessed Jan. 31, 2016 http://www.rasmussenreports.com/public_content/what_america_thinks/2013_11/what_america_ thinks_stop_and_frisk_debate_highlights_racial_divide_over_u_s_justice_system.

17. Olmstead v. United States, 277 U.S. 438, 485 (1928).

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