ACLU to Court: Government Spying Invades Privacy of Each and Every American
Last night, we filed the opening brief in our lawsuit challenging the NSA’s ongoing collection of the call records of virtually everyone in the United States, including the ACLU’s. We’re asking the court for a preliminary injunction ordering the government to stop collecting our data and to bar any use of the ACLU call records it already has collected.
The NSA’s program is illegal because it is not authorized by Section 215 of the Patriot Act as the government claims, because it invades every American’s Fourth Amendment right to privacy, and because it forces ordinary Americans to pause every time they pick up the phone to consider whether they want the NSA to know whom they’re calling – infringing on the First Amendment rights to freedom of speech and association.
Under this unprecedented surveillance program, the NSA has built an enormous database filled with information about every American’s associations and affiliations. Here’s how we put it in the brief:
Each time a resident of the United States makes a phone call, the NSA records whom she called, when the call was placed, and how long the conversation lasted. The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she didn’t; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the fortune teller, the suicide hotline, the child-services agency, and the shelter for victims of domestic violence. The NSA keeps track of the same information for each of her contacts, and for each of their contacts. The data collected under the program supplies the NSA with a rich profile of every citizen as well as a comprehensive record of citizens’ associations with one another.
In its own filing last night, the government asked the court overseeing the case to dismiss it, in part because “persons making telephone calls, even from their own homes, lack a reasonable expectation of privacy in the numbers they call.” To make this point, the government relies on a Supreme Court case that is nearly 35 years old – from a time when the government did not have the technological capacity to store our personal information indefinitely or mine it for revealing details.
Along with our brief, we submitted the declaration of Professor Edward Felten – a professor of computer science at Princeton University – who thoroughly debunks the government’s claim that so-called “telephony metadata” is innocuous and of no privacy concern:
Although it is difficult to summarize the sensitive information that telephony metadata about a single person can reveal, suffice it to say that it can expose an extraordinary amount about our habits and our associations. Calling patterns can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations. . . .
[When] aggregated, telephony metadata allows the government to construct social graphs and to study their evolution and communications patterns over days, weeks, months, or even years. Metadata analysis can reveal the rise and fall of intimate relationships, the diagnosis of a life-threatening disease, the telltale signs of a corporate merger or acquisition, the identity of a prospective government whistleblower, the social dynamics of a group of associates, or even the name of an anonymous litigant.
We also filed sworn declarations from ACLU staff supporting the motion. One is from the ACLU’s legal director, Steven Shapiro, testifying to the importance of confidential communications with our clients. Another is from Michael German, a former FBI agent and now ACLU senior policy counsel – he was a whistleblower at the FBI and describes the need for confidentiality when whistleblowers communicate with organizations like the ACLU.
In its filing, the government also argued that the ACLU does not have “standing” to challenge the NSA’s program because, although we know the government is collecting our phone records, we cannot prove anyone has looked at them. That is wrong on many levels. For one, the government’s logic turns the Fourth Amendment on its head – the protections of the Constitution are concerned with the government’s initial intrusion upon privacy, not only with the later uses to which the government puts the information it has collected. That’s why it is unconstitutional for the government, without a warrant, to seize your journal even if it never reads it; to record your phone call even if it never listens to it; or to videotape your bedroom activities even if it never presses play. (Check out this involving President Obama and Michelle’s diary.)
The government has for years used the pretense of “foreign intelligence surveillance” to gather vast amounts of information about every American – innocent or not, with or without suspicion. The theory that it can collect our private information now in case it needs it later violates the most basic of American rights: to be left alone by our government absent suspicion of wrongdoing.
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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
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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
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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.