ACLU Seeks Information on Government’s Aerial Surveillance of Protesters
UPDATE (12/7/21): Eight of nine agencies named in the original FOIA request have not produced any documents. We filed a lawsuit today suing for relevant records.
In the midst of nationwide protests against police brutality, local, state, and federal law enforcement agencies have reacted with brutal force and widespread surveillance. Not only are many agencies suppressing protest and intimidating protestors with batons and tear gas on the ground — they are also circling overhead. The government is using a deeply invasive, coordinated aerial surveillance campaign to monitor Black Lives Matter protests, gather information, and surveil people exercising their First Amendment rights.
Today, we submitted Freedom of Information Act (FOIA) requests to the Federal Aviation Administration, Department of Homeland Security, and the Department of Justice calling for more information on the use of aerial surveillance on protesters.
The government has deployed helicopters, airplanes, and border over American cities to systematically monitor peaceful protests . An investigative report by the New York Times that the Department of Homeland Security alone had logged at least 270 hours of surveillance footage on these racial justice protests this spring and summer. The collected footage was ultimately channeled into a digital network — accessible by federal and local law enforcement agencies for use in future investigations — with the ominous name “the Big Pipe.” Other law enforcement and military agencies, including the FBI, National Guard, and local police departments also requested deployment of private or government-owned aircraft for the purpose of surveilling protests. This widespread surveillance has been across the country — from the big-city protests in NYC, Portland, Chicago and LA, to 20-person protests in small towns across the country.
This surveillance has also been carried out with an unjustifiable level of secrecy. Agencies like the FBI regularly try to of their aircraft by registering them through dummy corporations. For weeks, U.S. Customs and Border Protection which agency had requested use of its Predator border drone over Minneapolis protests in May. Protesters and communities still have no idea what kind of cutting edge, high-tech equipment these aircraft — piloted and unpiloted — may be carrying.
As aerial surveillance continues, the public deserves much more information. In our FOIA requests, we are asking for information about the involvement of private companies; coordination between different law enforcement agencies; the processes by which surveillance flights are proposed, approved, or authorized; the scope of surveillance; the capabilities of the cameras and other surveillance tools deployed; and the surveillance footage itself.
We live in a democracy and Americans have a right to decide what kinds of surveillance law enforcement is permitted to engage in over our communities. But we can’t do that if we don’t know what’s going on.
A prime example of government policymaking that needs more sunlight is the FAA’s issuance of a “temporary flight restriction” over Portland in July, as that city became the center of renewed nationwide protests over police abuse in general and abusive practices by federal officers, sent to the city over local objections, in particular.
Unfortunately, there is a history of the FAA creating flight restrictions over protests at the request of law enforcement to limit the ability of reporters and community members to engage in aerial photography of police behavior. The agency restricted airspace over the Dakota Access Pipeline protests in 2016, and before that in Ferguson, Missouri during the 2014 protests following the death of Michael Brown. In 2014, proved that the purpose of the Ferguson no-fly zone was not the protection of public safety, as government agents claimed, but to keep news helicopters away.
In Portland, Oregon, the FAA’s restrictions prohibit drones except for those with “an approved special governmental interest airspace waiver that has been granted for operations in direct support of an active national defense, homeland security, law enforcement, firefighting, search and rescue or disaster response mission.”
In short, this flight restriction leaves room for government agencies to use aircraft to surveil the public, but severely limits the ability of the public to record the government. That may be how law enforcement agencies like it, but it’s exactly backward: Government surveillance of the public should be strictly regulated, but the public’s ability to monitor what law enforcement officials are doing should be broadly free and unrestricted. That is why protesters should be able to record the police using drones — and that is why we have filed a FOIA request to find out more about aerial surveillance of protests by law enforcement.
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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
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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.