One of the major surveillance battles the ACLU fought in the years after 9/11 was over a Bush administration proposal known as the Computer Assisted Passenger Pre-screening System II, or CAPPS II. Under this scheme as initially proposed, the government would have tapped into commercial data sources to perform background checks on the 100 million Americans who fly each year, and build a profile of those individuals in order to determine their "risk" to airline safety. After a battle that lasted approximately five years, the government abandoned this concept, which was impractical, unwise, and unlikely to be effective — and would set the government on the road of engaging in radically new level of intrusions into the private lives of individuals.
The New York Times today that this concept is back from the dead.
According to the Times, support is growing within the Transportation Security Administration (TSA) and within "several industry organizations" for the notion that the government should "divide travelers into three groups — trusted, regular or risky — and apply different screening techniques based on what is known about the passengers." The Times also reports renewed support for the related by distinct concept of creating a "Trusted Traveler" system.
The Times piece shows no evidence that either the reporter or TSA Director John Pistole is aware of the long history of the passenger profiling concept and the profound problems it faces, not only from a privacy and civil liberties perspective, but also from a practical one.
On our old page on the CAPPS II proposal you can find a record of sorts of the long, long battle that we and other advocates fought over CAPPS II, including these pieces on the Problems with CAPPS II and the Problems with Secure Flight. Most of these problems would apply equally to the passenger profiling scheme apparently being (re)considered today.
The CAPPS II program was beset by problems and delays from when it was first announced in early 2002, until 2007 when the program (which along the way was renamed Secure Flight) was scaled back to a system that consisted only of watch list checks (problematic though they are). I wrote up a timeline of the program for this 2006 report — skimming it provides a quick introduction to just how riddled with problems this program was. In addition to bureaucratic indecision and incompetence, and the opposition of Americans concerned about an unprecedented new government intrusions into citizens' lives, the protracted difficulties experienced by the CAPPS II program reflected genuinely knotty problems with the very concept of this kind of system.
In a democratic society, attempts to carry out background checks and make judgments about individuals' supposed "danger to aviation" simply introduced too many dilemmas. For example:
• What criteria would be used to sort the population by dangerousness? Early TSA proposals spoke about measuring the extent to which an individual was "rooted in their community." But African-Americans and Hispanics tend to move more often than non-Hispanic whites, which would mean the program would have a seriously discriminatory impact.
• Would the criteria be made public? If so, they could be gamed by a terrorist. But if the algorithm is a black box, the criteria might be unfair, arbitrary, and discriminatory, and at odds with democratic values, and there would be no checks or balances.
• What data sources would be used to make such a judgment? CAPPS II as originally proposed would have relied upon commercial data sources — not only putting the government into the business of collecting seriously detailed information about the lives of its citizens, but also exposing Americans to the significant inaccuracies that commercial data companies are known for.
• How much data is enough? Just how much data would these "risk assessments" be based on? Our strong suspicion is that however much the government collected for this purpose, it would never be enough. The New York Times suggests that the current thinking is that it would be "data that the government and the airlines are already collecting about passengers." That would suggest that it is passenger travel records. These records, known as PNR, can reveal a lot of private information about a person (). But what kind of security judgment can one make from that? The danger is that once this system is in place, the stage will be set for the government to demand access to more and more personal information about Americans to make ever-more refined judgments.
• What kinds of security would be applied to the trusted, the less-trusted, and the suspected groups? Would those in the trusted category get less scrutiny than is normal today? If so, such a "get out of security free" card would open up a new security vulnerability. Or would new security measures simply be imposed on the other two groups — and if so, where would the resources and time for those extra searches be found?
• What kind of redress process would be in place for those unhappy at receiving a label of "untrusted" by their own government? For anyone who might have confidence that the government would handle this well, I have just two words for you: watch lists.
• How effective will the system even be? How likely is it that this rough population-sort will stop a terrorist? In addition, even a known, wanted terrorist could sail right through security simply by obtaining a false driver's license or passport.
The "Registered Traveler" concept, which has been tried in several airports already over the years, largely unsuccessfully, is also rife with problems and unanswered questions, as I wrote about in this piece. Central among them is, who gets approved and who gets denied "trusted" status, and on what basis, and with what recourse for those who are denied? And, will it really improve our security?
All of these issues were confronted by the Bush administration when they tried to push through CAPPS II after 9/11. Ultimately, they were too much. Hopefully those who are thinking about reviving this concept will realize the profound problems it faces, and we can finally drive a stake through the heart of this threat to our privacy.
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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.