The Trump administration recently released a congressionally mandated on the NSA’s surveillance activities in 2017. Quite a few of the numbers raise questions about Americans’ privacy — some because the numbers are so big, and others because they may indicate troubling intelligence practices.
The report is required by the 2015 surveillance reform law passed in response to unlawful spying under Section 215 of the Patriot Act. The goal of Congress’ reporting requirement was to provide a snapshot of how the government is using certain surveillance authorities and, in some cases, to measure if the reforms passed in response to past illegal spying are having the desired effects.
Here are four of the most concerning pieces of the report:
The NSA is collecting more than three times the number of call records it did last year — totaling over 530 million — and has not explained the increase.
Under the Patriot Act, the government can ask phone companies to hand over call records associated with particular individuals, accounts, or devices on an ongoing basis — including the records two “hops” removed from the original target. Despite the fact that the number of targets has remained the same, the number of call records collected by the government has surged to over 530 million — more than three times what was reported last year.
The NSA has provided no clear explanation for this increase, that they “expect this number to fluctuate from year to year.” This canned response is woefully inadequate, and Congress should press for more answers.
The NSA continues to fail to report certain information about its activities as required by law.
The 2015 surveillance reform law, which the NSA endorsed, required the agency to report the number of “unique identifiers” — such as unique phone numbers and other account identifiers — that are collected by the government. The goal was to provide a sense of how many individual accounts were being swept up in the government’s surveillance.
The NSA has failed to report the number of unique identifiers associated with call detail record collection despite its obligation to do so under the law. As a result, we are left with no way to ascertain what has caused the surge in the number of phone records the government obtained. It could be due to duplication (like when one phone call creates records at multiple phone companies), multiple calls to the same number, or the types of unlawful surveillance that we have seen in the past.
The number of foreign targets for certain types of warrantless surveillance has increased by the largest percentage ever reported — and the government is increasingly using this data to spy on the content of Americans’ communications.
The report reveals that the number of targets subject to warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act has increased by over 20 percent, the largest rise since the government started publicly reporting this number. This spike likely means that there is a corresponding increase in the number of Americans and foreigners who are swept up in the government’s surveillance.
Indeed, the report also reveals that this data is being mined more often to look for the content of Americans’ communications — despite the fact that the law prohibits the government from using Section 702 to target Americans. The NSA, CIA, and National Counterterrorism Center conducted over 7,500 of these backdoor searches, and the FBI does not report the number of searches it conducts at all.
The use of surveillance authorities requiring a court order has dropped — but that might not be a good thing.
The NSA reports less reliance on certain surveillance laws, including those that require the government to get a court order to obtain electronic metadata, including information about who is on the sending and receiving end of a communication as well as when it happened. (This is often referred to as “pen register and trap and trace” or “PR/TT.”) According to the report, the government has obtained roughly only a quarter of the PR/TT orders that it obtained in 2013 — and that’s with over 90 percent fewer targets.
But we should not assume that this decrease translates into less spying. Given the increase in the use of other warrantless surveillance authorities, it is also possible that the government is obtaining this same information through means that do not require a court order.
For example, the government could be obtaining this information by mining data collected under Section 702 without a warrant, looking for the information of individuals who are not even targets of such surveillance. This would call into question whether existing restrictions are serving their purpose — or simply being easily skirted by the government’s increased abuse of warrantless surveillance authorities.
Congress should probe into the factors driving the various numbers in this report to determine whether the government is following the rules created to safeguard privacy and prevent overreach by the NSA.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.