Democracy Under Watch: How Counterterrorism Laws Are Repressing Civil Liberties
Figure 1. Protesters hold up signs outside of Federal Hall during a demonstration against then-U.S. Attorney General John Ashcroft in 2003 in New York City (Photograph from Spencer Platt, Protesters hold up signs outside of Federal Hall during a demonstration against then-U.S. Attorney General John Ashcroft in 2003 in New York City, 2003, Getty Images, New York City, New York, https://www.npr.org/2011/10/26/141699537/as-it-turns-10-patriot-act-remains-controversial).
In the aftermath of the September 11th, 2001 terrorist attacks, the United States witnessed a profound transformation in its approach to national security. The enactment of the USA PATRIOT Act brought forth monumental legislative changes that broadened governmental powers in surveillance, detention, and data collection—even at the expense of civil liberties such as privacy, freedom of expression, and protection against discrimination. Nowhere is the tension between security and liberty more evident than in the surveillance and suppression of the Black Lives Matter (BLM) movement, which has been framed by mechanisms originally designed for counterterrorism.
This article uses the post-9/11 surveillance state and the BLM movement as case studies to explore the enduring tension between national security and civil liberties in the U.S., while situating the analysis within a broader international human rights framework. It argues that these conflicts are exacerbated by systemic racial bias and that only by ensuring structural reforms—grounded in a rights-based framework and international standards such as those enshrined in the International Covenant on Civil and Political Rights (ICCPR)—can these tensions be resolved. It further compares the American approach to that of the United Kingdom and New Zealand, providing insight into both problematic and promising practices. In doing so, the paper also considers how communities have weaponized surveillance technologies for self-protection, further complicating conventional distinctions between oppression and empowerment. Ultimately, the article argues that a rights-based, internationally grounded framework must replace the false binary that pits security against freedom.
Defining the Rights at Stake: Security and Privacy
At the core of this analysis lie two competing yet independent rights: the right to security and the right to privacy. Under international human rights law, Article 3 of the Universal Declaration of Human Rights (UDHR) asserts that “everyone has the right to life, liberty, and security of person,” whereas Article 12 specifically affords protection against arbitrary interferences with one’s privacy. In practice, security has been interpreted as the state’s obligation to guard its citizens against violence, crime, and external threats, thus ensuring a stable society. Conversely, privacy is the right of individuals to control their personal information, communications, and bodily integrity, thereby defending them from undue government intrusion.
As legal scholar Daniel J. Solove observes, “Security and privacy are often perceived as zero-sum—more of one leads to less of the other.”1 This perception is particularly acute during emergencies such as terrorist attacks, where government mandates to prevent harm tend to justify reductions in privacy protections. In the post-9/11 era, notably with the PATRIOT Act, the expansion of surveillance powers was rationalized as a necessary trade-off to protect citizens. Yet—when viewed through the lens of international human rights instruments like the ICCPR and the Siracusa Principles—the balance of these rights is meant to be achieved through lawful, proportionate, and non-discriminatory measures.2 The ever-shifting balance between security and civil liberties, therefore, centers not only on competing priorities but on the underlying values that both safeguard and potentially subvert democratic freedoms.
The American Surveillance State: From Emergency to Entrenchment
In the wake of 9/11, the U.S. adopted sweeping counterterrorism laws that massively expanded government surveillance capabilities. The USA PATRIOT Act allowed for National Security Letters (NSLs), roving wiretaps, and secretive data collection with minimal oversight. As legal scholar Jack Balkin notes, these developments created a “national surveillance state” where precautionary policing undermines the presumption of innocence.
While initially aimed at foreign threats, this infrastructure has quickly turned inward. After the rise of the BLM movement in 2013, following the acquittal of George Zimmerman in the killing of Trayvon Martin, federal agencies began using facial recognition, aerial surveillance, and social media monitoring on American citizens. Yet, far from being embraced as a vital democratic movement, BLM activists have frequently been labeled as “domestic extremists.” In 2015, leaked documents exposed that both the Department of Homeland Security and the FBI were monitoring BLM protests as potential domestic threats. Such surveillance was not created by evidence of violent extremism but by an underlying hostility toward Black political agency and dissent. The very tools of the PATRIOT Act—meant to defend national security—were repurposed to suppress demands for racial justice, thereby reinforcing existing hierarchies of power.
Figure 2. Protestors march toward the U.S. Capitol holding BLM signs during a demonstration in Washington, D.C., 2020 (Photograph from Erin Scott, Demonstrators march from the U.S. Capitol Building during a protest against racial inequality in the aftermath of the death in Minneapolis police custody of George Floyd, in Washington, U.S., June 6, 2020, Reuters, Washington D.C., https://www.brookings.edu/articles/the-diversity-of-the-recent-black-lives-matter-protests-is-a-good-sign-for-racial-equity/).
The Surveillance of Black Lives Matter: From National Security to Political Repression
As originally designed for counterterrorism, technologies like geofencing, social media scraping, facial recognition, and license plate readers have been repurposed to track political dissent. Cities such as New York, Baltimore, and Minneapolis have deployed these surveillance tools to monitor protestors, often in secret and without public oversight.3 This environment of constant monitoring discourages participation in political protests by instilling fear of reprisal.
Anisa Jama’s work on “The Politics of Surveillance” further illustrates that the data collection methods employed by police—through partnerships with technology companies—disproportionately target racialized communities.4 By using predictive analytics to map activist networks, law enforcement creates what Jama terms a “surveillance assemblage” that invades privacy while reinforcing systemic racism. The Brennan Center for Justice reported that during the summer of 2020, after George Floyd’s murder, federal and local agencies used surveillance drones and geolocation tracking to monitor protestors without warrants.5 These measures, justified under national security reasoning derived from the PATRIOT Act, demonstrate how blending counterterrorism tactics with domestic policing undermines fundamental civil liberties.
This redirection of surveillance mirrors the treatment of Muslim communities in the post-9/11 era. Both cases involve racialized threat constructions wherein state apparatuses justify monitoring based solely on identity or political affiliation. In the case of BLM, the labeling of protestors as terrorists or extreme threats leads to disproportionate monitoring, which in turn chills democratic participation and intensifies social polarization. In practice, a dual system of rights emerges: while some citizens enjoy robust privacy protections, others—particularly Black Americans—find their rights curtailed. This discrepancy shows the racialized nature of surveillance policies that perpetually place marginalized communities at a disadvantage.
Surveillance as a Tool for Empowerment
It is important to note that surveillance is not inherently oppressive; its impact depends on who controls it and for whose benefit it is deployed. In recent years, activists and communities of color have harnessed surveillance technologies in efforts to document police misconduct and demand accountability. The widespread use of body cameras by police departments was originally promoted by advocates who viewed transparent video evidence as a means to reduce abuses. The recording of George Floyd’s death by a bystander’s smartphone is a stark example, providing irrefutable proof of misconduct and swaying public opinion.
Moreover, grassroots organizations such as CopWatch and Witness have trained members of their communities to safely document police encounters. In these instances, surveillance becomes a tool for protection, helping citizens to record abuses and support legal and social reforms. However, as Simone Browne warns in Dark Matters: On the Surveillance of Blackness, even technologies designed for empowerment can be co-opted by the state if they are not controlled by communities themselves.6 Thus, the question is not only who is being watched, but who controls the means and narrative of surveillance. The challenge it poses is not only to expand or contract surveillance but to ensure that its control and use are democratized.
Choosing Between Security and Privacy: An Impossible Trade-Off?
The debate between national security and civil liberties is frequently cast as a zero-sum game, yet this framing is misleading. Governments confront the monumental challenge of preempting threats through surveillance while upholding the fundamental freedoms upon which democratic societies are built. Every time privacy is surrendered in the name of security, society risks cementing invasive practices that can outlive any temporally defined emergency. The question, therefore, is not whether one right must entirely replace another; rather, it is how national policies can be recalibrated to respect both security and civil liberties without resorting to the false dichotomy that pits them against each other. The stakes are therefore enormous: the post-9/11 landscape demonstrates how quickly civil liberties can be curtailed and how long it can take to acquire them once more.
Rather than viewing these principles as mutually exclusive, democracies must seek ways to recalibrate their national policies. A rights-based model ensures that restrictions on privacy are necessary, proportionate, and non-discriminatory, as outlined by the ICCPR and the Siracusa Principles.7
Figure 3. [Activists wearing Theresa May masks surround a young woman using her phone, in a protest against the UK’s proposed surveillance law known as the “Snooper’s Charter,” outside the Palace of Westminster, London, 2016]. (Photograph from Note My Vote, [Activists wearing Theresa May masks surround a young woman using her phone, in a protest against the UK’s proposed surveillance law known as the “Snooper’s Charter,” outside the Palace of Westminster, London, 2016], 2016, The New Statesman, London, U.K., https://www.newstatesman.com/science-tech/2016/03/could-uncanny-crowd-theresa-mays-make-public-care-about-snoopers-charter).
The UK’s Snoopers’ Charter: Oversight in Theory, Overreach in Practice
The United Kingdom’s Investigatory Powers Act of 2016, known as the “Snoopers’ Charter,” is often cited as one of the most expansive surveillance laws in any democracy. It allows intelligence agencies to conduct bulk data collection and equipment interference.8 Unlike the U.S., however, the UK mandates a dual-approval system where both a minister and a judicial commissioner must authorize surveillance activities.
While this provides a degree of oversight, critics argue that it remains insufficient. Organizations like Privacy International and Liberty have legally challenged these laws, asserting that they fail to meet the proportionality and necessity requirements under the European Convention on Human Rights and the ICCPR.9 The UK thus exemplifies a case where institutional safeguards exist but may be undermined by the breadth of the state’s surveillance powers.
Figure 4. A woman lights a candle at a memorial outside Al Noor Mosque in Christchurch, New Zealand, following the mass shooting in March 2019, as armed police officers stand guard (Photograph from Adam Dean, A memorial near Al Noor Mosque in Christchurch, New Zealand, for victims of the shootings on Friday, March 2019, The New York Times, Christchurch, New Zealand, https://www.nytimes.com/2019/03/19/reader-center/new-zealand-media-coverage.html).
New Zealand: A Model of Balance?
In contrast, New Zealand offers a relatively effective model for balancing state security with civil liberties. Following the recommendations of an independent review, the country passed the Intelligence and Security Act in 2017, which centralized oversight and enhanced transparency. The law established the Intelligence and Security Committee, a bipartisan parliamentary body with access to classified information and a mandate to review operations.
Additionally, New Zealand’s Privacy Act of 2020 introduced robust protections for individual data, aligning with international standards and incorporating string enforcement mechanisms. The government’s response to the 2019 Christchurch terrorist attack further illustrates this balance. While surveillance powers were temporarily expanded, oversight was preserved, and transparency emphasized. The emphasis on community consultation, judicial review, and independent oversight has been crucial in maintaining public trust.10
Legal and Policy Reforms: Rebalancing Security and Liberty
To genuinely balance national security and civil liberties, reform efforts must address the systemic inequalities embedded in current frameworks. Key policy recommendations include:
Curtailing the Use of National Security Letters: NSLs should be abolished or subjected to rigorous judicial oversight, with transparency requirements that eliminate gag orders and enforce public accountability.
Refining the Definition of Domestic Terrorism: Avoid conflating non-violent activism and terrorism, which chills democratic participation.11
Mandate Racial Impact Assessments: Surveillance tools should undergo independent evaluation to assess their racial impact, incorporating community feedback.
Establish Oversight Bodies: Independent agencies with enforcement powers are vital for auditing surveillance programs, publishing public reports, and holding violators accountable.
Regulate Tech Collaborations: Tech companies must be required to disclose all law enforcement collaborations and limit data sharing that violates civil liberties.
Strengthen Digital Privacy Protections: Reassert privacy as a civil liberty, with clear limits on government data collection.
Investing in Community-Controlled Technology: Funding should be directed toward developing and deploying technologies that empower marginalized communities to document abuses safely and securely. By democratizing surveillance, communities can reclaim control over how evidence of misconduct is gathered and used.
Toward a Universal Framework for Rights-Respecting Security
The USA PATRIOT Act, born out of national trauma, established a surveillance apparatus that outlived its emergency justification. From the over-policing of Muslim communities post-9/11 to the tracking of BLM protestors, U.S. security measures have often come at the cost of civil liberties. Yet these trade-offs are not inevitable. infrastructure that endures beyond its original counterterrorism purposes.
Comparative cases reveal both cautionary tales and possible paths forward. The UK’s experience demonstrates how oversight can coexist with overreach, while New Zealand offers a hopeful example of rights-respecting reform. The key lesson is that democracies must reject the false binary of security versus liberty and instead adopt international human rights standards as universal benchmarks.
This raises a broader question: Did the United States initiate a global shift in democratic norms by prioritizing security over privacy in the post-9/11 era? If so, is this model of American exceptionalism—where rights are subordinated to state power—being exported to other liberal democracies? The evidence suggests a concerning trend. From France’s emergency surveillance laws to Australia’s data retention mandates, the ripple effects of America’s post-9/11 strategy have reverberated across the Western world.
However, as New Zealand shows, a different path is possible. By institutionalizing oversight, promoting transparency, and grounding policies in international law, nations can uphold both security and civil liberties. In a globalized digital landscape, where surveillance easily crosses borders, the defense of civil liberties must be a shared international commitment—not a state-determined exception. The challenge before us is to move toward a universal framework in which privacy and security are co-equal imperatives, not oppositional forces.
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