The ACLU Is in Dublin, Ireland, Today Defending the Right to Privacy for Europeans and Americans Alike
Today, lawyers for Facebook will cross-examine ACLU Staff Attorney Ashley Gorski at a court hearing in Dublin, Ireland, about U.S. surveillance policies and privacy protections. The hearing is part of litigation in European courts over whether users’ private data is adequately safeguarded when companies like Facebook move that information from Europe to the United States.
Facebook that its users’ data is adequately protected, even in the face of sweeping U.S. surveillance programs, like the PRISM program revealed by whistleblower Edward Snowden. It also says that European citizens can readily obtain remedies for illegal surveillance in U.S. courts. But those claims are hard to square with reality. As our ACLU colleague has explained in her expert report, this data is incredibly vulnerable to spying programs operated by the NSA and other U.S. intelligence agencies. Moreover, in practice, the millions of people affected by this spying have few (if any) effective remedies.
Given all we’ve learned in the past three years — and given the dangerous spying powers wielded by our new president — U.S. tech companies must continue their efforts to promote strong surveillance reforms.
Friday’s hearing is part of what is known as the Schrems litigation — a pair of cases brought in European courts following the revelations of NSA spying that began in June 2013. Those disclosures revealed a vast machinery of surveillance, such as the operated under Section 702 of Foreign Intelligence Surveillance Act, which the government uses to target tens of thousands of non-U.S. citizens for surveillance with few restrictions. According to , Facebook was one of the major internet companies compelled to turn over its users’ stored and real-time communications under PRISM.
The breadth of U.S. government spying is a problem for companies that want to move their users’ data from the European Union to the United States. The E.U. generally prohibits companies from transferring private data out of the E.U. unless that data will receive “essentially equivalent” protection at its destination. The Schrems cases have challenged various protocols that companies like Facebook have relied on to satisfy these legal obligations. The initial challenge concerned the so-called Safe Harbour arrangement, which was invalidated by the Court of Justice for the European Union on privacy grounds in 2015. The present case challenges a new set of protocols that some companies invoked in an attempt to meet E.U. privacy rules after that groundbreaking decision.
The legal issues before the Irish High Court are complex, but what’s at stake is not. The case highlights just how easy it is for U.S. intelligence agencies to access Europeans’ data once it is transferred to the United States. And it highlights also just how few meaningful remedies are available in the United States to those who want to challenge NSA surveillance, whether they are Europeans or Americans. The fact that few individuals receive notice of surveillance, combined with the U.S. government’s repeated use of standing doctrine and the state secrets privilege to block court review, has put redress almost entirely out of reach.
If the European courts ultimately conclude that the U.S. surveillance regime lacks essential protections for E.U. citizens, companies like Facebook may have more difficulty transferring their users’ private data to the United States — at least until the U.S. adopts badly needed reforms to its surveillance laws.
There are several ways that tech companies could push for stronger protections for their users’ data in the face of U.S. government spying.
First and foremost, tech companies must actively lobby members of Congress to reform our surveillance laws — especially Section 702, which is set to expire this year. Tech companies, including Facebook, make contributions to dozens of candidates for the House of Representatives and Senate, including politicians who have introduced in the past or have advocated for the . The message to lawmakers should be clear: If they do not support pro-privacy policies, they should no longer expect to receive Facebook support. Surveillance reform must remain a high priority for tech companies.
Second, tech companies should continue to oppose efforts to expand U.S. surveillance powers or to weaken encryption. In the past, Facebook — to its credit — has challenged efforts to allow the FBI to collect sensitive information, like browsing history, without appropriate court process. In addition, Facebook has stated its opposition to backdoors in encrypted products. Tech companies should continue to resist, both publicly and in the face of any private pressure they receive from the Trump administration.
Third, tech companies should push back against unilateral efforts by the Trump administration to strip away privacy protections for immigrants and foreigners. For example, the Trump immigration executive order contained a stripping anyone who is not a U.S. citizen or green card holder of certain protections under the Privacy Act. As a result, individuals around the world and many immigrants in the United States may now have their private information disseminated without appropriate safeguards.
Now that President Trump has the keys to the US surveillance state, it’s more important than ever that tech companies work with us in the fight for surveillance reform.
Learn More About the Issues on This Page
-
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.