Pew has a new poll out on , and it is full of interesting findings. A New York Times blog on the poll focused on the so-called “privacy paradox”—people’s seeming willingness to share personal information despite their professed concern over privacy (more on that below). But for me the most striking finding is that Americans’ confidence in the privacy and security of electronic communications is very low, with over half thinking that email, text messages, chat, and social media are “not at all” or “not very secure.” In too many ways, these beliefs are well-founded, and yet these are the mediums that Americans are using more and more to communicate in their everyday lives.
One problem is that if people don’t have confidence that they can communicate privately, that will leave many feeling uneasy and insecure in their communications. That is not how people should go through life in a free, democratic society. When asked if they feel they do enough to protect their own privacy online, 61% feel they “would like to do more.” For anyone with an understanding of how limited our privacy is, it’s impossible to go online without being haunted by that feeling. And that lack of confidence will inevitably drive people to seek other means of communicating when they feel they must have privacy, and therefore reduce the societal value of these communications channels.
Fully 80% of adults say Americans should be concerned about the government’s monitoring of phone calls and internet communications. Just 18% disagree. Similarly, 80% say they are concerned about the use of data by social networking sites. Sometimes we see people on the government side of the privacy debate claiming that we should be focused on the corporate side, or vice versa, but the truth is (as this poll also found) people care about both and (as I argued at greater length here) both matter greatly.
Other interesting findings from the poll:
- Landline telephones. Pew asked respondents how private and secure they felt various communications mediums were, and people felt most secure with landline telephones. I suspect that reflects a recognition of the fluidity and insecurity of “data” in today’s world, and the feeling that landline telephones aren’t built around data (despite the fact that that’s increasingly is not the case). It’s probably no coincidence too that landline telephones are also the oldest and most established communications medium, and are subject to the most mature set of regulatory rules and protections for privacy.
- Location tracking. As someone who has tried to spread understanding of the sensitivity of location tracking data, I was pleased to see that 82% consider such data to be sensitive (including 50% who say “very sensitive” and 32% “somewhat sensitive”).
- Anonymous speech. Fully 42% of respondents reported having posted comments, questions or other information online anonymously—a reaffirmation of the importance of anonymous speech online. Interestingly, the younger a person is the more likely they are to post anonymously, according to the survey.
- Privacy and the young. The poll contains more data points undercutting the myth that there’s some generational shift underway away from privacy, such as the finding that more young people than old consider the contents of their email to be very sensitive. (I took on that myth last year in this piece.)
- Free online services. While online service providers are increasingly looking to “personalization” as a source of differentiation and profits, and the advertising industry would have us believe the myth that online services will disappear without ever-expanding access to our personal details, Americans’ attitudes seem to fly in the face of those trends. By a nearly 2-1 margin they disagree with the statement, “I appreciate that online services are more efficient because of the increased access to my personal data.” True, 55% agree that they are willing to share “some” information about themselves to use any online services for free—but that is such a broad statement that only someone who would never share any information with anyone online, no matter how trusted, would be able to honestly disagree.
- Bad online experiences. Pew reports that “only” 11% of adults report having had a bad experience due to embarrassing or inaccurate information posted about them online. For young adults (aged 18-29), who probably use the internet more, the rate was 16%. To me these numbers do not seem low at all; the fact that more than one in 10 users had a bad experience of this kind, which can be quite devastating, seems quite significant and a reminder of how important it is for people to retain control of their information. And 16% of all adults also report having asked someone to remove or correct online information about them.
- A fundamental divide. Probably the most fundamental attitudinal divide among Americans was in response to a Pew query on whether “It is a good thing for society if people believe that someone is keeping an eye on the things that they do online.” Here we get to the true heart of the privacy issue—the question of whether people value individual freedom and autonomy, or the ability of the community to watch over what individuals are doing. A person’s view on that matter, I strongly suspect, will govern his or her attitudes across a wide variety of public policy matters that implicate privacy rights. Pew found that 62% disagreed with the statement, while 36% agreed.
Finally, on that “privacy paradox,” I don’t actually think it’s much of a paradox. Much of it (as EPIC’s Marc Rotenberg points out in the piece) can be explained through network effects and lock-in—the fact that networks like Facebook are natural monopolies with (as economists put it) increasing returns to scale. You can’t just pick the network that you like best as you can with your breakfast cereal; you have to use the one everyone else is using, as does everyone else, which ends up locking everyone in. In addition, privacy is in many contexts a diffuse and/or abstract concern, and therefore it’s only natural that it often gives way to sharper, more immediate needs. So in an environment where legal protections are absent, people end up making compromises even though they don’t feel good about it.
There’s no reason people shouldn’t be able to have their cake and eat it too—to enjoy conveniences and social communications without giving up control over their information. Unfortunately, in today’s world they can’t, and powerful forces oppose any steps to fix it. But as Pew found, by a roughly 2-1 margin Americans do want to fix it; 64% believe the government should do more to regulate “what advertisers do with their personal information,” compared with 34% who think it should not.
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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.