This piece originally appeared at .
Section 215 of the Patriot Act, which the National Security Agency has used for more than a decade to collect the call records of hundreds of millions of Americans, is scheduled to expire in four weeks. Pro-surveillance legislators, including the senate majority leader, want Congress to reauthorize the provision in its current form. Pro-privacy legislators on both sides of the aisle want Congress to scale the provision back. Unless legislators can agree on far-reaching reforms, the better course is simply to let Section 215 expire.
Congress enacted the Patriot Act in October 2001, just weeks after the Sept. 11 attacks. Few legislators read the proposed law before they voted for it. The bill was hundreds of pages long and it amended statutes that were notoriously complicated. The intelligence community said it needed new authority, and few legislators thought it was the right time to ask questions.
But precisely because so few questions were being asked, legislators insisted that some of the Patriot Act's authorities, including Section 215, include "sunset" provisions. The point of including these provisions was to ensure that the law would be re-evaluated once its implications—including its civil liberties implications—were better understood, and to ensure that surveillance authorities whose limits were unclear from the outset wouldn't become permanent unless the government could make a strong case for their necessity. Even in the climate of panic that prevailed in the weeks after the Sept. 11 attacks, Congress wanted the strong presumption to be that the era of Patriot Act surveillance would one day come to an end.
Unless Congress can coalesce around much broader reforms than are on the table right now, the best way to begin the reform effort is by letting Section 215 expire.
The decision to include sunset provisions turns out to have been a prudent one. The Patriot Act has enabled a truly dramatic expansion of the government's surveillance activities—an expansion far greater than even the law's critics predicted. Relying on authority granted by the Patriot Act, the FBI issued hundreds of thousands of "national security letters," each one a demand for sensitive information, and each one accompanied by a "gag order" prohibiting the recipient from disclosing the letter's existence. It monitored millions of Americans' Internet activities—tracking, among other things, to whom they sent emails, and who sent emails to them. It conducted thousands of secret searches of homes, offices, and other premises in the United States—an astounding 6,471 such searches in 2013 alone—the vast majority of them in cases having nothing to do with terrorism. A now-infamous slide disclosed by Edward Snowden is titled "Collect it All," and this chilling slogan supplies an entirely fair characterization of what the government has been trying to do.
The call-records program is just another manifestation of the same mindset. Since 2006, the NSA has been using Section 215 to collect Americans' call records en masse. At the close of business each day, the major telecommunications companies provide the NSA with a record of who called whom, when, and for how long. The resulting database is an account of Americans' most sensitive associations—of calls between husbands and wives, doctors and patients, lawyers and clients. The program is an immense intrusion into the privacy of millions of people, but there is no evidence that it has made us more secure. To the contrary, two official review groups have concluded that the program hasn't been crucial in any terrorism investigation. And the president himself has acknowledged that the government can track the phone calls of suspected terrorists without wholesale collection of innocent Americans' call records.
Some government officials have suggested that allowing Section 215 to expire would require the government to abandon not just the call-records program but other investigative activities whose legitimacy no one would question. But the government has never identified these purportedly legitimate activities, even in general terms, and its vague warnings, made for the most part in not-for-attribution statements to the media, are not sufficient to justify the extension of a surveillance power that has already been so grossly abused. Moreover, many of the legitimate things the government can do with Section 215 can be accomplished in other ways—with grand jury subpoenas or with pen registers, for example. Allowing Section 215 to expire wouldn't force the government to stop doing those things; it would simply force the government to use other legal means where it was previously using Section 215.
The more compelling argument against allowing Section 215 to sunset comes from those who believe that Congress should leverage the opportunity presented by the scheduled sunset to enact a broad reform package. But while the proposed bill—the USA Freedom Act—includes worthwhile elements, it doesn't go nearly far enough. (The ACLU neither supports nor opposes it.) It would allow the government to continue storing innocent people's records in vast intelligence databases. It would require the government to be more transparent about its use of some surveillance authorities, but it would allow the FBI to keep secret some of the information the public needs most. And while it would end the bulk collection of call records under Section 215, it would leave the government with the authority to engage in the broad collection of other kinds of sensitive records.
We appreciate the work of the legislators who are championing the bill—Sens. Patrick Leahy and Ron Wyden, and Reps. John Conyers and Jim Sensenbrenner, in particular, deserve credit for their tireless work in the service of surveillance reform—but they have had to make deep concessions to the intelligence community in order to win its support. We can't help but worry that the vague language in the bill's key provisions will provide a new lease on life to surveillance programs that haven't yet been—and may never be—disclosed to the public.
We can't afford to squander the opportunity that the scheduled sunset of Section 215 affords. Thanks to Edward Snowden, Americans now know that the government's surveillance activities are far more extensive than is defensible in a free society. The current debate in Congress reflects a growing bipartisan consensus that reform is urgently needed. Unless Congress can coalesce around much broader reforms than are on the table right now, the best way to begin the reform effort is by letting Section 215 expire. Letting the provision die wouldn't itself accomplish all of the changes that are necessary—not even close. But it would be a first step toward the kind of systemic reform we desperately need, and it would send an important and overdue message that the era of unchecked government surveillance—the era of the Patriot Act—is at long last coming to an end.
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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.