Congress Is Poised to Give Trump Administration Powerful New Spying Powers
The Trump administration wants more spying power — and Congress appears poised to give it to them.
Touting national security to justify spying powers that jeopardize our constitutional rights is a strategy that we have seen before. It happened with the Patriot Act after 9/11, and members of Congress and government officials are now employing similar arguments again. This time it involves a drone bill that some in Congress are to be sneakily inserted into a larger piece of legislation that could be considered this month.
According to , members of Congress are lobbying to add to the Federal Aviation Agency Reauthorization Act. Proponents of the bill claim that it will make our country safer. But, in reality, the drone legislation will give new surveillance powers to the Trump administration to spy on journalists, activists, and other Americans without a warrant.
, the bill’s intent is to arm the “Department of Homeland Security and the Justice Department with the ability to act quickly and effectively when a drone poses a risk to large-scale events and government facilities.” This goal may be admirable, but the bill does not achieve it.
Instead, the bill empowers these agencies to warrantlessly spy on Americans without complying with existing US laws — including , , and . Generally, these laws require the government to get a warrant if they want to wiretap or access other types of stored communications.
The drone bill, however, exempts DHS and DOJ from these restrictions anytime it deems a drone a “threat” to certain covered areas. The bill defined covered areas so broadly — including areas where there may be emergency responses or federal investigations— that it will inevitably sweep in areas where media organizations have a legitimate interest in reporting.
As we have noted before, this surveillance could ultimately sweep in communications of media organizations using drones to report on disaster areas or seeking to uncover details of children being held in . It can also include information about private companies or even just drone hobbyists.
Indeed, in a June hearing, a DHS representative admitted that surveillance was a benefit of the bill. In response to questioning, David Glawe, undersecretary for the Office of Intelligence and Analysis, that using drones “for law enforcement purposes to conduct surveillance on criminal suspects, terrorist, foreign intelligence is going to be an absolute benefit in how we develop these powers and procedures.”
The bill also authorizes more than just collection of communications and other information from drones. It will also likely be interpreted to allow the agencies to hack or interfere with radio signals, without any court approval. While the agency has not specified what “counter drone” surveillance techniques it intends to purchase, we know that companies are products that can hijack drones, jam signals within a given area, and more.
Jamming of signals could impact the ability of individuals on the ground to use WiFi or cellular networks, jeopardizing public safety by limiting the ability of hospitals, first responders, and other medical professionals to function. Similarly, there is no guarantee that the government only hacks drones that are in fact malicious or that efforts to hijack a drone do not result in unintended consequences.
These risks are precisely why in July 2018 the FAA itself to several stating that counter-drone technology was not ready for use in civil airports given the dangers it poses. Among other things, the letter noted that this technology has “safety implications,” including the risk of “false positives.” As a result, the technology could create greater “hazards” than it intends to mitigate. Despite these warnings, the proposed drone bill would give DHS and DOJ virtually carte blanche to use these counter-drone techniques without any judicial oversight or sufficient civil remedies in cases where individuals are harmed.
Moreover, once collected, similar to other national security authorities, the bill creates a backdoor allowing this information to be used for purposes that have nothing to do with protecting individuals from drone threats. This sensitive and private information can be retained and used in broad circumstances, including supporting a “safety or security” function of DHS or DOJ. This could include general law enforcement, border security, or immigration enforcement.
Exempting the government from following existing laws is entirely unnecessary to protect against drones that may pose a threat to public safety. In cases where a true emergency exists, the Wiretap Act and other federal law generally allow the government to quickly intercept and gather information and only seek a warrant after-the-fact. This carefully balances the government’s need to gather information quickly in an emergency, with the judicial oversight that is necessary to ensure that the government doesn’t falsely claim an emergency to avoid the Constitution’s warrant requirement.
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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.