Today the ACLU filed a Freedom of Information Act lawsuit to force the government to release statistics about its use of powerful electronic surveillance tools that law enforcement can use against any American simply by stating to a judge that it’s relevant to an investigation. The Department of Justice is required to disclose these statistics to Congress each year, yet routinely fails to do so. Today’s suit is an effort to compel the DOJ to follow the law (here are our complaint and our FOIA request).
The surveillance tools at issue are called and . Originally these devices were designed to eavesdrop on the old analog telephone network, but now they refer to a broader type of electronic eavesdropping. Using these methods, the Justice Department has claimed the authority to reveal:
• The phone numbers you call and that call you
• The time each call is made
• The length of each call
• The email addresses of the people you send emails to and who email you
• Your IP address and the IP addresses of computers you connect with (IP addresses can reveal physical location)
• The web addresses of the websites you visit
The that pen registers and trap and trace devices were not covered by the Fourth Amendment because the “non-content information” the police monitored, like the numbers the caller dialed, were “voluntarily disclosed” to the telephone company. But Congress was not entirely comfortable with such a carte blanche granted to the executive branch, and so in 1986 it passed the Pen Register Act, which laid out restrictions that were, though minimal, intended to provide oversight on law enforcement’s use of these invasive surveillance methods.
To initiate a pen register or trap and trace device under the act, law enforcement can simply file a certification with a court stating that the information they are likely to obtain is “relevant to an ongoing criminal investigation.” In other words, the Pen Register Act does not authorize judges to weigh the substantive merits of an officer’s request. If officers fulfill the procedural requirements by submitting the certification, judges have no leeway to deny these orders.
Given the merely procedural process set for law enforcement agents, the act requires the attorney general to submit a report to Congress every year cataloguing each order and describing how the surveillance power was used. As Senator Patrick Leahy (D-Vt.) when sponsoring a successful bill to expand these requirements, “adequate oversight of the surveillance activities of federal law enforcement [can] only be accomplished with reporting requirements.” Senator Leahy also explained that the purpose of the attorney general’s annual report is to inform both “Congress and the public.”
As such, the attorney general is to submit annually a report that lists:
(1) The period of interceptions authorized by each order and the number and duration of any extensions of each order
(2) The specific offenses for which each order was granted
(3) The total number of investigations that involved orders
(4) The total number of facilities (like phones) affected
(5) The district applying for and the person authorizing each order
The reporting requirements aren’t perfect. One of their biggest flaws is that they only cover law enforcement agencies within the Department of Justice. They don’t apply to the Department of Homeland Security at all, and so agencies within that department, such as the Immigration and Customs Enforcement agency, don’t have to report anything. They also don’t cover state and local authorities, who can engage in the same types of surveillance. But the reporting requirements are better than nothing, and they are the best insight we have into how the federal government uses these powerful surveillance tools.
Unfortunately, as we have learned through FOIA requests by interested privacy advocates, the Justice Department to report the use of pen registers and trap and trace devices to Congress.
• For each year from 1999 to 2003, the DOJ failed to submit any data to Congress. They finally sent a package of delinquent data in a single “document dump” in 2004.
• Another data blackout occurred between 2004 and 2009, when the DOJ again sent four years of delinquent data to Congress.
• In 2010 and 2011, the DOJ has failed to make public data and reports on its usage of pen registers and trap and trace devices, putting privacy advocates square in the middle of a similar data blackout.
It is no surprise that in his analysis of the situation, scholar Paul Schwartz that DOJ reporting failures have created “blank spaces on the map of telecommunications surveillance law."
Without current data on the government’s use of warrantless and invasive searches into Americans’ private lives, we are once again left in the dark. This is a problem for two reasons. First, government transparency is of vital importance in a democracy. on the White House website, “Government should be transparent. Transparency promotes accountability and provides information for citizens about what their Government is doing.” The information we’re seeking is important because in order to have meaningful debate over government surveillance powers, we must be able to answer basic questions about the government’s current use of such powers.
But of more immediate concern, by subverting its legal obligation the DOJ has managed to completely escape the only oversight that Congress established on a very invasive surveillance power. Like a fire alarm, oversight mechanisms signal to Congress when the executive branch drastically expands its surveillance activities or oversteps the boundaries of its authority. Oversight also discourages executive agencies from taking such steps. Government overreach therefore becomes particularly worrisome when oversight mechanisms are not properly carried out.
During the last decade’s data blackouts, privacy advocates feared that the use of pen registers and trap and trace devices had become much more frequent, but they had no data with which to properly assess the situation. in 2010 uncovered data confirming these suspicions. From 2006 to 2009, while the DOJ evaded Congressional oversight, it also for pen registers and trap and trace devices. As the chart below shows, the annual number of original orders for pen registers and trap and trace devices doubled between 2006 and 2009 from 11,000 to 24,000 (though the government may have sought numerous extensions on those original orders).
As we sit in the midst of another data blackout, we don’t know how severely these numbers may have changed in 2010 and 2011.
The lawsuit we filed today is an effort to end this data blackout. In February of this year, we filed a request for this data under FOIA. Although the government was obligated to respond within 20 days, it is now over two months later and we have yet to receive a complete response. So, we have filed suit. Our legal complaint seeks release of the data and reports from 2010 and 2011 on the federal government’s use of pen registers and trap and trace devices. It also seeks any documents shedding light on any failures to submit those data and reports to Congress.
It is our hope that the DOJ will immediately produce its data from 2010 and 2011 and will make greater efforts in the future to follow the law and report its use of these invasive surveillance techniques to Congress.
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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.