Congress Just Temporarily Extended the Government’s Spying Powers
Congress today temporarily extended the NSA’s spying powers that time and again have been used to violate our rights. Disturbingly, this three-month extension was snuck into a broader funding bill, forcing members of Congress to choose between extending this program and causing a government shutdown. The extension is an unnecessary lifeline to spying programs that are plagued with compliance violations, have no proven intelligence value, and violate our rights.
Under Section 215 of the Patriot Act, one of the spying powers extended, the government believes it has the right to collect our personal information merely if it is deemed relevant to a terrorism or counterintelligence investigation — a standard much lower than the Fourth Amendment’s probable cause warrant requirement. This can include virtually any business record, including mental health records, DNA information, tax returns, books, videos, call records, financial data, and much more. One of the government’s legal justifications for this power is its false claim that the Fourth Amendment doesn’t protect our information if it is stored or held by a third party such as Google, Facebook, Amazon, a hospital, or an accountant.
This legal argument is not only outdated — it’s absurd.
In today’s digital world, vast amounts of our most intimate data are held by third parties. Telephone carriers can track virtually everywhere we have been. Internet service providers log every website we visit. And tech companies have a record of every text or email we send. The records held by these companies can reveal how often we go to church, seek mental health treatment, or even purchase junk food.
Given this reality — and the NSA’s history of abusing Section 215 — this authority should not be reauthorized unless Congress can enact substantial and meaningful reforms to protect our rights.
Federal lawmakers can start by limiting the types of information that the government can get with a Section 215 order. The government should not be able to obtain sensitive information such as location information, biometrics, or health data under a “relevance” standard, even when that information is held by a third party. Similarly, if the government is generally required to obtain a probable cause warrant for this kind of information in criminal cases, the law should clearly state that they cannot get this information with a Section 215 order.
Second, Congress must beef up protections to ensure that Section 215 does not violate our other constitutional rights. Any surveillance that discriminates on the basis of race, religion, or other protected characteristics should be prohibited, particularly given the ample evidence that national security has often been used as an excuse to target vulnerable communities. Moreover, the existing statute should be strengthened to forbid any surveillance based on First Amendment activities.
Third, Congress can ensure that the government complies with its constitutional obligation to notify individuals when Section 215 information leads to a prosecution or other proceeding. Unlike other surveillance authorities, the government claims that it has no such obligation. Congress should remedy this, giving individuals the opportunity to raise constitutional challenges and judges the ability to review these massive surveillance powers.
Fourth, Congress must end Section 215’s call record authority. In 2015, Congress reformed Section 215 to put a halt to the NSA’s practice of collecting virtually all Americans’ call records. In its place, Congress created a law intended to ensure that this program was used carefully and narrowly, rather than for large-scale collection. It is now apparent that these reforms are not working, and that the NSA’s call record program is not salvageable.
Despite reforms in 2015, the NSA continued to collect an immense amount of Americans’ information under the program — amassing more than 1 billion records from 2016 to 2018 alone. Further, there is no evidence that this mass data collection resulted in the disruption of even one terrorist plot. The NSA has already suspended this program following persistent compliance problems, and Congress should end this authority so that it can never be revived.
Congress had over four years to debate these authorities, and long ago should have either meaningfully reformed them or ended them entirely. Members of Congress should not continue to kick the can down the road. If they cannot pass comprehensive reform in the next three months, they must finally allow these authorities to sunset completely.
In a hearing earlier this month, Senator Mike Lee questioned whether it was a “complete dereliction of duty” for Congress to give these types of expansive surveillance powers to the government. It was, and it’s past time to remedy this mistake.
Learn More About the Issues on This Page
-
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.