Congress Finally Begins the Process of Reforming Warrantless Government Surveillance
The Trump administration wants to extend the government’s authority to spy on Americans without a warrant. Some Democrats and Republicans, recognizing the need to curb that power, are joining forces to reform the law that has been used to allow that kind of surveillance.
Rep. Bob Goodlatte, R-Va., Rep. John Conyers, D-Mich, and other members of Congress introduced a last week to reform Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is set to expire at the end of the year.
The ACLU has long opposed Section 702 for allowing warrantless surveillance of Americans. The provision has been used to unconstitutionally collect hundreds of millions of communications every year, search all international traffic as it moves through the internet backbone, gather wholly domestic communications without a warrant, and search the trove of personal data for information unrelated to national security.
The Trump administration believes this law should be made permanent. We disagree and have urged Congress to either significantly reform the law or let it expire. The bill introduced last week is the first one this year proposing to reform Section 702. While it has positive elements, it still needs significant improvements.
Here’s our take on some of the good, the less good, and the ugly parts of the bill.
The good
The bill’s biggest step forward is that it prohibits collection of information “about” targets of investigation until 2023. The clear language of Section 702 only permits the government to collect information “to” or “from” foreign targets. The Snowden disclosure revealed, however, that the government was wrongly interpreting the law to allow it to collect international or domestic communications “about” these targets. The NSA temporarily halted about collection in April, but explicitly said that it can restart it in the future. This is particularly concerning given that that the FISA court has found that the government has persistently violated even its own procedures governing searching of these communications, resulting in significant Fourth Amendment violations.
The bill prevents this practice from restarting until 2023. This provision should be improved, however, by permanently halting this type of collected.
The less good
Much of the Section 702 debate has centered around the “backdoor search loophole.” Under Section 702, the government is prohibited from targeting citizens and US residents for surveillance. The government skirts this prohibition, however, by routinely searching the Section 702 database looking specifically for information about Americans.
An improvement over the status quo is that the bill seeks to require approval from the intelligence court for the government to view the contents of communication collected under Section 702 in some cases. However, there are concerns that the wording does not make clear that a judge – not the government – must make the appropriate probable cause funding which is needed to make this a true warrant requirement. Moreover, the exceptions to this requirement are sizable.
Among the exceptions to the requirement are circumstances in which the primary purpose is “foreign intelligence.” This means that if the NSA, CIA, NCTC, or FBI want to search for information about someone in the U.S. for the primary purpose of gathering information about topics that are broadly related to foreign affairs or national defense — like climate change, Israeli politics, drought conditions overseas, or any other — they have free rein to do so. And if through these searches they stumble across evidence of a crime, they can flag this information for criminal investigators.
Moreover, the bill does not make clear that the government is required to meet the probable cause requirement in all criminal circumstances, whether or not they are performing a search specifically looking for evidence of a crime. Thus, even in the criminal context, there is room for the government to unconstitutionally view content without a warrant.
Finally, there is no court order required to access non-content information or perform the search in the first place, and there are inadequate protections to ensure that the government does not avoid getting a warrant by falsely claiming an emergency or consent.
The ugly
The most troubling part of the bill is a provision that increases the maximum penalty for the disclosure of classified information, including by whistleblowers. It also creates an entirely new crime that could be used to punish people who accidentally mishandle classified information, including in cases where they did not know the information they had was classified or they take corrective action.
Finally, the bill fails to address a number of problems with existing law. For example, it continues to permit the government to spy on individuals without a warrant who are not suspected of any wrongdoing, including based simply on the fact that they might have information related to foreign affairs or national defense. It does not ensure that individuals receive notice when Section 702 information is used against them, despite ample evidence that the government has failed to provide adequate notice to criminal defendants. And it does not force the NSA to fulfill its promise made earlier this year to provide an estimate of the number of people in the U.S. whose information is collected under this authority.
The bill is a start, but it does not go far enough to protect individual from warrantless surveillance. Congress must take steps to address the bill’s deficiencies as it moves forward.
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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.