Biden Cannot Protect Privacy or Defend Democracy by Expanding Surveillance Powers

Given continued opposition to Israel’s war in Gaza and the increasing temperature of domestic politics ahead of November’s elections, it is likely that this will be another summer of protests across the United States. It is a certainty that various forms of signal intelligence will be trained on policing domestic dissent. Protests over the situation in Gaza, in particular, collapse foreign and domestic politics, accelerating the breakdown between federal national security apparatus, which purportedly monitors foreign intelligence and the domestic, mostly non-federal, policing apparatus that accesses data, software, and hardware first developed for war.

This dynamic has been present for decades, often hidden from public scrutiny, quietly building up a “surveillance complex” that effectively deputizes corporations to meet government demand for tech and data. The technology, the data, and the budget have been accessible to local, state, and federal law agencies for over 20 years, through a process called parallel construction, and the inter-agency collaboration promoted by the PATRIOT Act. But, under the newest expansion of the Foreign Intelligence Surveillance Act (FISA) of 1978, signed into law by President Joe Biden on April 20, many more categories of companies are legally mandated (not merely incentivized) to collect, retain, and hand over data to three letter agencies that have shielded themselves from public accountability. This is the most visible and most coercive step in a secretive history of the deputation of surveillance to the private sector.

This move exemplifies the bipartisan political will to expand surveillance at the expense of individual liberties, posing a significant threat to the fundamental democratic principles President Biden claims to defend. Unless he finds the will to change course and establish clear institutional limits on surveillance, he may ultimately contribute to the demise of American democracy.

A crisis point decades in the making

In a period marked by high measures of affective polarization, Americans are increasingly facing institutions and politicians in both parties that embrace a transactional view of their rights. “Free speech” is expensive and not universally available. But the present surveillance apparatus did not emerge overnight; it emerged over the course of five administrations, both Republican and Democrat, and through acts of Congress and the courts that created the current context.

Multiple executive actions and laws produced a technology industry built on surveillance business models and a government eager to take advantage of it. In 1994, during the administration of President Bill Clinton, the Communications Assistance for Law Enforcement Act forced telephone companies to redesign their network architectures to make it easier for law enforcement to wiretap digital telephone calls. The 1998 Digital Millennium Copyright Act placed a higher legal burden on tech firms to police piracy and enforce copyright or be liable, requiring the development of various means to police content. Google worked on automating many of these tools. Then came 9/11, and the expansion of the surveillance apparatus during the President George W. Bush administration under the PATRIOT Act. President Barack Obama was forced to admit surveillance programs he preferred not to acknowledge existed when Edward Snowden leaked classified documents revealing expansive surveillance programs developed by the National Security Agency in collaboration with major tech firms. President Donald Trump, vindictive and exploiting racist tropes, welcomed the return of Bill Barr, an architect of the pre-digital H.W. Bush’s and W. Bush’s mass surveillance programs to look for and go after protesters when the cruelty of law enforcement rallied a multi-racial coalition to denounce its wanton murder of its Black citizens.

A missed opportunity for real change

Many hoped President Biden would break the cycle of dependence on mass surveillance at the federal level, and there were early signs that he was committed to doing so. He recruited into his administration a legal scholar with a novel interpretation of monopoly power to head the Federal Trade Commission, Lina Khan. For this FTC, if data is the new oil, Big Tech is Standard Oil. Chair Kahn’s vision of modern anti-trust includes assessing companies’ ability to generate or retain user/customer data to produce uncompetitive schemes that feed into highly integrated algorithmic service suggestions, dark patterns that limit consumer choice, and its use determining allocation of resources for physical goods and web services.

And to his credit, Biden clearly identified and articulated the Dobbs ruling reversing the precedent on abortion rights established by Roe v Wade as fundamentally undermining privacy. Dobbs isn’t just about women’s access to safe and legal abortion, or expanded to everyone’s reproductive rights. The crux of the Dobbs ruling, which Justice Samuel Alito and company explicitly argued, is that Roe v. Wade made up the right to privacy. Griswold v. Connecticut, an earlier reproduction case, described the right to privacy as a “penumbra” derived by implication from the Bill of Rights, and Roe v. Wade applied it to abortion. When the Roberts court effectively said “no more adding up amendments, no more right to privacy” in Dobbs, President Biden took them at their word. Few others have.

But this kind of clarity is undermined by President Biden’s acceptance of Section 702 expansion. It is impossible to see how the groundbreaking efforts of the FTC, seemingly reflecting the President’s prior convictions, can negate the effects of the 4th expansion to FISA’s Section 702 he signed off on. Why did he allow his intelligence agencies to get a whole wish list of corporate compliance, increasing access to harmful and undemocratic technology and data? The President did not back any of the Senate reform proposals. Unelected and unaccountable national security apparatus elements got their wish list granted by Congress, and now their use of these new tools will be rubber stamped by the Judiciary, which oversaw decades of FISA court cases without a public advocate present. Loch K. Johnson, a legal scholar involved in the Church committee has called this phenomenon of deliberate inter-branch non-oversight: “intelligence exceptionalism.”

This time around, Republican legislative chaos during the bill’s December mini-extension and April passage contributed to the kabuki theater. Since it was tucked into a contentious Israel and Ukraine military funding package, the President has not explained to Americans his signature on the Reforming Intelligence and Securing America Act of 2024 (RISSA), the FISA Section 702 expansion, and its contribution to more unaccountable executive branch aggrandizement. RISAA requires more compliance to turn over data from more companies managing it. Biden’s acceptance of deputizing mass surveillance, offloaded to corporations who cannot refuse the government, cannot disclose it, and cannot be held accountable to voters, customers, or shareholders, is a huge obstacle for a post-Dobbs defense of privacy rights. Section 702’s expansion flies in the face of everything else Biden has said and done so far when it comes to privacy.

Now, Biden is forced to talk about privacy out of both sides of his mouth. A needless fork in the road was created through this convoluted set of events—Section 702 should have been allowed to expire. The security apparatus prefers not to be accountable, and deputizing surveillance lets it play accountability hot potato with Big Tech firms that entrench the status quo. Hefty contracts offset the market’s discomfort with the heat of bad PR. The security apparatus succeeded again with Section 702’s RISAA expansion, and Biden blessed it. How can privacy defenders in the administration find a way forward in the short term? In two years, Biden may be able to end this experiment if reelected, or he may cave to a privilege-based view of privacy, speech, assembly, and who knows what else.

Worst case scenarios

Or, he may lose in November, and the new powers and capabilities he has granted the surveillance state will fall into the hands of an emboldened President Trump. When it comes to privacy, President Biden needs to decide what matters more now, not in two years: American’s rights, or the social control mass surveillance tech promises? Is privacy a right or a privilege, capriciously given when you don’t make a ruckus but withdrawn when politically expedient? He can clearly identify politicians and law enforcement vying for protestors’ data, identity, and futures. He must acknowledge that all digital data—location data, period tracking data, communications discussing politics, labor, the looming environmental catastrophe, or otherwise dissenting from the wave of reactionary politics—can be weaponized with impunity. The government keeps institutionalizing this dynamic, carving it deeper in stone and protecting surveillance markets. Mass surveillance treats everyone as guilty until proven innocent by the data. Turn your pockets and your inbox inside out perpetually—if you don’t want to, what are you hiding? This suspicion is harmful to the body politic and erodes trust, and may ultimately prove fatal to American democracy.

Ahead of a likely summer of protest, it is clear that President Biden cannot afford to naïvely think those across the aisle advocating for more political violence will act with restraint when empowered. He needs to confront this conflict in means and ends, and make sure his Department of Justice is prepared to reign in policing surveillance excesses, as his FTC has. He knows how high the stakes are, now, he urgently needs to rectify the institutional limits for privacy and set the US on a new trajectory.