Thanks to capacity-building programs begun under Presidents George W. Bush and Barack Obama, President Trump now holds the keys to a massive surveillance operation. Indeed, Trump will face few if any technological barriers to monitoring whomever he wants, whenever he wants, for whatever purpose he chooses. To be sure, Trump does not enjoy legal carte blanche. The constitutionality of one of the government’s most significant surveillance programs has been called into question by commentators, and courts have declared that using characteristics like race and religion as the basis for surveillance is unconstitutional.
But the Trump White House so far has shown an unsettling willingness to flout its legal obligations. After a federal court ruled that travelers detained at Dulles Airport in the wake of Trump’s immigration ban were entitled to see lawyers, for instance, senior administration officials nevertheless refused them access to the attorneys massed outside. This is on top of signs that the president is violating the Constitution’s Emoluments Clause by accepting foreign governmental business at his hotels, and that his apparent ban on communications by certain federal employees with Congress ran afoul of whistleblower protection laws.
If anything, his administration appears poised to dramatically expand existing surveillance capabilities. Trump’s CIA director has advocated for allowing the National Security Agency to restart and even intensify its collection of metadata about Americans, enabling the government to do warrantless deep dives into who Americans email, what they buy, what magazines they subscribe to, and more. The Department of Homeland Security seems likely to embrace new surveillance technologies as well, from sophisticated biometric recognition to airborne surveillance cameras.
The administration does not even need to activate new surveillance tools or expand its existing ones, however, in order to investigate and harass political opponents, members of disfavored religious groups, or other Americans who may find themselves in the president’s crosshairs. Even if Trump never directs the NSA to gather one additional record, or asks the Federal Bureau of Investigation to initiate one more investigation, or suggests that DHS should collect one more piece of information about a traveler’s social media postings, the U.S. government is sitting on top of a treasure trove of data.
The NSA runs perhaps the most high-profile data center, a massive $2 billion facility in Bluffdale, Utah. An area bigger than the White House is dedicated solely to housing computer servers, and while there is disagreement over the precise quantity of data those servers will be able to hold, experts suggest that the center serves as a gargantuan repository for personal financial data, legal documents, private communications, and more, to be sifted through when and if the government desires.
The FBI runs its own data compendium, a virtual center called the Investigative Data Warehouse. As of 2010, the IDW housed more than a billion records from multiple governmental and non-governmental sources, a number that has surely grown exponentially over the past half-decade. Records are kept ad infinitum, offloaded only when they are superseded or no longer needed for any conceivable analytical purpose, essentially ensuring that the default retention period is forever.
The IDW may also contain information the FBI sweeps up through its “assessments,” investigations that are launched with no reason to believe the subject has committed any crime. The FBI is authorized to keep and share everything it collects via assessments on the theory that the data might “eventually” serve a valid goal, making the Bureau the keeper of a motherlode of sensitive data. Information about searches of travelers’ electronic devices by Customs and Border Patrol officers—a practice that appears to be gathering steam in the Trump administration—may feed into the IDW as well.
And the FBI, NSA, and other federal agencies funnel data into yet another repository, the National Counterterrorism Center. Implemented in the wake of the September 11 terror attacks to enhance information-sharing, the NCTC was initially governed by guidelines that significantly restricted the center’s use of any non-terrorism-related information about Americans. Five years ago, however, the reins were loosened; guidelines implemented in 2012 and still in place today allow the NCTC not only to receive non-terrorism information about Americans, but to “retain and continually access” that information for up to five years—a ten-fold expansion of the previous time limit.
While some of this data is undoubtedly valuable, keeping and storing such huge quantities of it impedes effective investigation and analysis, as officials across multiple agencies have acknowledged. Moreover, it is highly susceptible to misuse, as the Church Committee that investigated Watergate-era intelligence abuses recognized 40 years ago: “The massive centralization of … information creates a temptation to use it for improper purposes, threatens to ‘chill’ the exercise of First Amendment rights, and is inimical to the privacy of citizens.”
In the years after 9/11, for instance, the FBI gathered and kept records about individuals’ political activities, leading to their placement on federal watch lists from which it became almost impossible to escape. In an era when President Trump is personally threatening leakers, and his surrogates are intimating that they are developing dossiers on journalists, these warehouses of information are particularly vulnerable to abuse.
In the long term, Congress should take steps to help shrink this government treasure trove. The legislative branch could modernize the Privacy Act, which governs the federal government’s collection and use of information about Americans. Congress could also mandate strict retention limits or require destruction of the data that is no longer relevant, construing relevance narrowly.
In the meantime, Congress and the public must demand transparency and accountability from the executive branch. There is, for instance, little information publicly available about either the IDW or the NSA’s data center, despite their vast holdings; oversight hearings could yield valuable insight. Similarly, Congress could require greater transparency from the NCTC, including additional reporting that would detail how often the center is using its broadest grant of authority.
Otherwise, Trump and his administration will have the power to turn the keys on the surveillance state without ever collecting a single piece of new information—a state of affairs Richard Nixon could only have dreamed of.