I recently wrote about how difficult it is to know which technologies on the horizon will turn into genuine privacy nightmares and which remain menacing but distant threats. One group of technologies that we’ve had our eyes on for a while are those that purport to read minds. On Sunday the Washington Post ran an on a Maryland case where a murder defendant is trying to introduce fMRI “lie detector” evidence in his defense. (fMRI) allows researchers to look at neural activity in real-time by using powerful magnets to trace blood-flow changes in the brain.
Meanwhile, as CBS Seattle first , some scientists are claiming they can “hack” information out of a subject’s brain, and engage in lie detection, by using a simple “”—biofeedback brain-wave readers that are increasingly used to control computers and are off the shelf for only $300. According to the scientists, a “guilty knowledge test” based on a particular brain wave, the P300, “has a promising use within interrogation protocols that enable detection of potential criminal details held by the suspect.”
Five or so years ago, we looked at this issue in great depth—consulting with experts, hosting a forum, and filing a Freedom of Information Act Request. Around that time several companies were aggressively marketing the technology as lie detectors and for other purposes. One of our concerns was that the technology might be applied by our national security agencies against suspects in the “war on terror,” who would then be mistreated based on inaccurate results. Our FOIA request attempting to find out if that was true did not yield any answers.
Unlike the polygraph, which measures heart rate and temperature in an attempt to detect a subject’s response to lying, fMRI lie detection attempts to detect a subject’s decision to lie. And for a polygraph to work you have to get a subject to actively participate by answering questions, while fMRI could be used to extract information from a person whether they actively provide an answer to a question or not. For example, scientists might try to flash a picture of a murder weapon and measure whether a subject has seen it before– in effect, identifying “guilty knowledge.” In this sense, fMRI hopes to go well beyond lie detection, and presents us with something far closer to the concept of “mind reading.”
Another concern is how private employers might seek to use these kinds of technologies. Attempts to read minds using the brain computer interface devices might be especially tempting in some work situations, since the technology is so cheap and readily available. However, “lie detector” use by private employers is (with a few very narrow exceptions), having been banned by the Employee Polygraph Protection Act of 1988. That defines the term “lie detector” as including
a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device (whether mechanical or electrical) that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual.
That would seem to pretty clearly include fMRI or brain computer interface devices, which therefore remain illegal for use by private employers.
Although we have heard less about fMRI in the past few years, stories such as the above are a reminder that the technology remains on the horizon.
However, it is telling that the judge in the Maryland case ruled that the MRI results were inadmissible. Polygraphs have long been barred from the courtroom on grounds of unreliability. The unreliability of polygraphs is a well-established scientific fact (and their continued use by the national security establishment a scandal that routinely damages innocent people). And fMRI lie detection is likely to have the same fate in the foreseeable future. Like all deception detection, fMRI lie detection may well prove to be inherently unreliable because in real world situations, the act of deception is highly complicated by factors such as ambiguity, faulty memory, external stresses, or delusion. We should never forget what a swamp of ever-shifting ambiguity the human mind is. Some liars, for example, come to half-believe what they are saying. Some storytellers imagine their tales with such vividness that the question of “truth” becomes mentally ambiguous.
Ultimately, of course, we can’t predict whether fMRI or other brain-reading techniques will take us to incredible new places, or whether deceptively difficult complexities will stall progress for decades (as with artificial intelligence) or indefinitely.
In either case, however, nonconsensual mind reading is not something we should ever engage in. At the ACLU our longtime opposition to lie detectors (which dates to the 1950s) has never been exclusively about the effectiveness, or the specific technology of the polygraph. We have said since the 1970s that even if the polygraph were to pass an acceptable threshold of reliability, or a more accurate lie-detection technology were to come along, we would still oppose it because of the unacceptable violation of civil liberties it represents.
We view techniques for peering inside the human mind as a violation of the 4th and 5th Amendments, as well as a fundamental affront to human dignity. Until relatively recently, even a person’s private written papers were seen as reflecting their innermost thoughts, and were regarded as immune to seizure by the government—even with a warrant. As Jeffrey Rosen has (see pp. 27-31), English law for centuries did not permit the government to access private papers in civil or criminal cases, warrant or not. Behind this rule was a belief that using a person’s papers as evidence against him was akin to forcing him to testify against himself. That position was still widely held when our Founders wrote the Constitution, and was as late as 1886.
Although we have fallen far from that position, we must not let our civilization’s privacy principles degrade so far that attempting to peer inside a person’s own head against their will ever becomes regarded as acceptable.
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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.