UDPATE: You can watch the video of the full hearing .
The ACLU testified today before a House field forum examining drone technology and the Fourth Amendment at Rice University called by Rep. Ted Poe (R-Tex.). Drones have gotten a lot of attention lately – U.S. law enforcement agencies are eager to get their hands on them while civil libertarians are concerned about the potential threat to privacy. The panel for today’s hearing, which was held in conjunction with the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, included representatives from across the board, with witnesses from the advocacy, law enforcement, and academic worlds.
Our legislative counsel, Chris Calabrese, explained the ACLU’s concerns regarding the lack of regulations on this quickly-spreading technology (read his complete prepared testimony here).
Calabrese testified that while government has long used manned aerial surveillance such as planes and helicopters, unmanned drones potentially pose new threats to our privacy. Helicopters and planes are expensive to purchase, operate, and maintain – an economic burden that has limited how much the government can own and deploy aircraft. Drones, on the other hand, are relatively inexpensive and have no such deterrent. And when combined with other growing technologies, the unregulated use of drones could create a surveillance environment we have only seen in science fiction. Calabrese explained:
Imagine technology similar to the naked body scanners we are all familiar with from airports attached to a drone. Through technologies like face recognition, improved analytics, and wireless internet, it is possible to track specific individuals with multiple drones. Drones and license plate scanning could be used to track cars for traffic enforcement.
To be sure, drones can be incredibly useful to law enforcement for jobs such as firefighting, search and rescue, or dangerous police actions. However, as the use of drones is expected to increase dramatically due to legislation passed this year ordering the FAA to provide for expanded use, strict safeguards must be put in place by the federal government to maintain Americans’ right to privacy.
These safeguards, Calabrese told the hearing, should be based on the following four principles, which are described in more detail in our recent report on domestic drones:
- No one should be spied on unless the government believes they have committed a crime. A warrant should be required for use on private property, while a lower threshold might be acceptable for monitoring someone in public. We must protect against mass, baseless reconnaissance.
- Information collected by drones should only be used for the specific purpose the drone was flown for. Data cannot be shared for general law enforcement or administrative purposes.
- Drones should never be armed.
- Proper oversight must be put in place.
Drones and Our Expectation of Privacy
Today’s hearing focused on the expected use of drones versus our expectation of privacy. While panelists from law enforcement were concerned about possibly over-regulating such useful technologies, all panelists agreed that a proliferation of drones raises different and heightened privacy concerns for the American public.
Speaking passionately, Rep. Hank Johnson (D-Ga.) said, “We are not a nation of suspects. Warrants must be narrowly tailored to protect against unlawful searches.”
He also expressed concerns over how individuals might “censor their speech and curtail their self-expression when they believe they are being watched by big brother.”
David Leebron, president of Rice University, spoke about the balance between security and privacy. “A surveillance state is incompatible with liberty,” he said, adding that “we choose to not become a surveillance society by finding the appropriate balance between privacy and the needs of law enforcement.”
But who should determine the balance? Congress or the courts?
There was general consensus among the panelists that Congress was best positioned to regulate drone use. President Leebron explained that Congress’s access to the public, through hearings and contact with constituents, allowed it to best consider the nuanced issues surrounding drones. The ACLU’s Calabrese agreed, noting that unlike the courts, Congress can draft legislation permitting effective uses of drones while setting rules governing their use for criminal law enforcement. This would offer an important safeguard against mass surveillance by drones.
Rep. Poe has introduced HR 6199, the Preserving American Privacy Act of 2012. We believe that the bill is a good first step towards regulating government use of drones. It honors the appropriate constitutional standard that a warrant is necessary for any search of private property.
As the use of drones by law enforcement becomes increasingly common, it is vitally important that the laws are updated to maintain a robust level of privacy for Americans. We are glad to see members of Congress addressing this important issue.
Learn more about domestic drones: Sign up for breaking news alerts, , and .
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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.