A government proposal to change the rules for obtaining search warrants risks making all of us more vulnerable to cyber-attacks.
The FBI wants to be able to infect computers with malware when it doesn't know where exactly they're located. The implications for computer security, and for constitutional limits on the government's search powers, are drastic.
The Department of Justice is asking a judicial committee to amend Rule 41 of the Federal Rules of Criminal Procedure, which generally permits magistrate judges to issue search warrants to the government only for searches within their judicial district. The government wants to lift the geographical limitation to allow it to conduct electronic surveillance of devices whose locations are unknown.
The Advisory Committee on Criminal Rules, which includes mainly judges, is holding a hearing tomorrow to consider the government's proposal. The ACLU will explain at the hearing why the proposed rule could be a game changer in degrading online security and how it could green light systemic constitutional violations.
We know that the FBI – and possibly other law enforcement agencies – have been infecting the devices of criminal investigative targets . But if the proposed amendment is adopted, it will throw the doors wide open to an industry peddling tools to undermine computer security, and make the U.S. government an even bigger player in the surveillance software industry. That's cause for concern when you consider the government's own track record on data security. As we noted in a comment we submitted last week to the committee ahead of tomorrow's hearing, "Agencies struggle with the most basic security practices, such as using good passwords, updating anti-virus software, and encrypting internet traffic on their websites." Federal agencies reported a staggering 25,000 data breaches in 2013, and foreign governments and hackers have repeatedly – the being the latest.
Flaws in surveillance software used by the U.S. government could expose targets' devices not just to American law enforcement agents, but to foreign governments and malicious parties eager to exploit vulnerabilities to collect sensitive information. And the government's record when it comes to assessing the reliability of technology it has purchased doesn't exactly inspire confidence (think Healthcare.gov).
Possibly even more disconcerting, however, is the market for vulnerabilities the amendment would encourage. In order to successfully infect the computers of targets, law enforcement agencies are increasingly seeking to purchase or so-called "zero-day" software exploits. Zero-day exploits take advantage of software vulnerabilities that are unknown to the software's manufacturer. Governments pay big bucks – into the hundreds of thousands of dollars – to acquire them, resulting in a largely unregulated market for these tools. Since the use of a given zero-day exploit depends on the continued existence of the vulnerability it's exploiting, governments withhold their existence from the manufacturer.
That is, quite simply, frightening. Government officials often say that cyber-attacks are one of the . Given that assessment, shouldn't government be fixing, not exploiting, insecurities in widely used technologies? Indeed, a panel appointed by the president to review the NSA's surveillance programs wrote that "it is in the national interest to eliminate software vulnerabilities rather than to use them for US intelligence collection." But by codifying law enforcement's ability to use malware to remotely access targets' computers, the proposed amendment to Rule 41 would be a major boost to the zero-day market, further commodifying vulnerabilities and incentivizing the government to stay mum when it discovers them.
The constitutional concerns raised by the amendment are no less serious, and go beyond the kinds of procedural questions generally addressed by the committee. There are strong arguments that zero-day exploits are too intrusive, destructive, or dangerous to be reasonable under the Fourth Amendment, considering they endanger far more computers than those they target. For example, , the exploit launched by the United States and Israel apparently to target facilities in Iran, spread far beyond the targeted computer systems, infecting the networks of . Similar questions arise for far less dramatic methods for infecting targets' computers.
For example, we last week that in 2007 the FBI delivered spyware to a suspect by faking an Associated Press story and sending a link to the suspect's MySpace account. When the suspect clicked on the link, surveillance malware installed itself on his computer and initiated a search. What we don't know is whether the suspect unwittingly forwarded the link to other people or shared it via social media. If he did, the computers of numerous innocent people could easily have been secretly infected with malware and searched. In other investigations, the computers of law-abiding citizens could get easily swept up in an attack simply because they visited the same site as a target. That kind of dragnet search is unacceptable by the Constitution's standards.
The committee demonstrated its thoughtful approach to these questions earlier this year, when the DOJ submitted an even broader proposal that would have allowed remote hacking of computers, as well as remote access to cloud-based services (like Gmail or Dropbox) during a search of a physical computer. The committee recognized the concerns raised by privacy advocates, and scaled back that proposal to ensure the government serve warrants on cloud service providers in order to access that information. When we testify tomorrow, we will urge the committee to reject the remaining parts of the government's proposal.
The proposed amendment would expand the government's power to conduct searches of a particularly invasive nature. If such searches are to be allowed at all, they should be carefully regulated by Congress, which is better suited to weigh the constitutional and policy concerns that the proposal raises. We hope the committee recognizes that, and rejects the proposed amendment to Rule 41.
The amendment, if passed, would have enormous implications for the security of each and every one of us. That's a decision our elected representatives – and each of us – should be weighing in on.
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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.