Amidst all of the coverage of Mark Zuckerberg’s congressional testimony last week, you may have missed another consequential headline for Facebook — and for everyone who uses the internet.
An Irish court that U.S. surveillance programs result in the “” processing of Europeans’ private data, and it expressed serious concerns about the lack of legal remedies for this surveillance. If the European Union’s highest court agrees, it may limit the ability of companies to easily move data from the EU into the U.S. In other words, NSA spying could have a major impact on the profits of Facebook and other Silicon Valley giants.
One of the central issues in the case, known as the Schrems litigation, is whether the breathtaking scope of NSA surveillance violates users’ rights. That’s because under European law, companies face restrictions on transferring data to countries with weaker privacy rules. To address those restrictions, in the 1990s, the EU and the United States negotiated an agreement known as “Safe Harbor,” which allowed companies doing business in the EU to transfer data to the U.S. based on the principle that the U.S. ensures an “adequate” level of protection for that information.
In 2013, Edward Snowden’s revelations made clear that NSA spying programs involve massive violations of privacy. An Austrian lawyer and privacy activist, Max Schrems, took note. Schrems brought a suit against Facebook Ireland, which relied on the Safe Harbor agreement to transfer data to Facebook in the U.S. He argued that as a result of NSA spying, the U.S. failed to adequately protect Europeans’ data. The case made its way to the Court of Justice of the European Union, the highest court in matters of EU law. The court invalidated the Safe Harbor agreement in 2015, based in large part on the court’s concerns about the vast extent of U.S. government surveillance.
Unsurprisingly, that landmark ruling resulted in substantial fallout for American tech firms and multinationals that do business in the EU. Afterward, the U.S. and EU rushed to negotiate a new agreement, called Privacy Shield, with the hope that it would withstand scrutiny by the EU’s high court. Some companies also began relying on alternate protocols to transfer data to the U.S.
In 2015, Schrems filed a new complaint in Ireland, this time challenging Facebook’s reliance on one of these alternate protocols to transfer data, once again raising concerns about U.S. government spying. In court in Dublin, Facebook argued that its users’ data is sufficiently protected and that if European citizens are illegally spied on, there are sufficient remedies available.
However, as I explained in expert testimony for Schrems, those claims are completely divorced from reality.
When people’s data is transferred from Europe, it is vulnerable to warrantless mass surveillance by the NSA and other agencies under two broad spying authorities: Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12,333. The U.S. can target law-abiding Europeans under programs such as PRISM, which pulls information from American tech firms, and Upstream, which grabs communications directly from the internet’s physical infrastructure as they’re in transit. And in practice there are few, if any, effective remedies because the U.S. government almost never officially notifies the millions of people it subjects to this spying. Without notice, it is extremely difficult to challenge this surveillance in court.
In light of these facts, the Irish court several of Facebook’s arguments. It ruled that the U.S. government engages in mass surveillance and found that people subject to U.S. surveillance do not receive notice. In addition, it concluded that concerns about the lack of remedies are “well-founded.”
The court also referred 11 legal questions to the European Court of Justice, including questions about the broader Privacy Shield agreement. That’s very significant because if the EU’s high court determines that the U.S. fails to adequately protect Europeans’ data or that U.S. legal remedies are insufficient, Facebook and thousands of other companies will face enormous hurdles in transferring data across the Atlantic.
The fatal flaw in Privacy Shield is that it doesn’t address the fundamental problem: Because of mass surveillance and inadequate remedies for that surveillance, the U.S. simply cannot satisfy the standards enshrined in EU law. Moreover, based on changes in U.S. law since the EU high court’s 2015 opinion, the U.S. government may claim that Congress has given it even broader authority to spy.
Facebook may appeal last week’s decision to another Irish court, so we don’t yet know when the European Court of Justice will hear Schrems’ case. But one thing is certain: The NSA’s sweeping surveillance programs have taken a huge toll on privacy. Silicon Valley may pay the price next.
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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.