This year, Congress must vote on reauthorizing provisions of the Patriot Act that are due to expire — including Section 215, which the government abused for years to illegally collect Americans’ phone records in bulk. As this debate gets underway, both Congress and the public need some answers.
In 2015, Congress passed the USA Freedom Act to reform parts of the Patriot Act and make other much-needed changes to the government’s surveillance activities. Perhaps most notably, the law prohibited the bulk collection of Americans’ call records, internet metadata, and other private information under several statutes. It also sought to enhance transparency, so that illegal surveillance programs under these authorities would never again flourish in secrecy.
Four years later, however, serious questions remain about whether these reforms have successfully halted bulk collection and other forms of overbroad surveillance. It’s also unclear whether additional measures are needed to safeguard communities of color and Americans engaged in First Amendment-protected activities.
The ACLU has filed a new Freedom of Information Act lawsuit in an effort to shed light on these significant gaps in the public’s understanding. Similarly, in order to inform the coming debate, Congress and the public must demand answers to the following questions.
What additional changes are needed to prevent the bulk collection of Americans’ private data under the Patriot Act?
The reforms passed in 2015 were designed to end the bulk collection programs operated by the National Security Agency and as well as to prevent the large-scale collection of Americans’ private data under the Patriot Act going forward. But information released by the NSA suggests that these reforms may not be working as intended.
For example, although civil rights groups like the ACLU urged Congress to end surveillance under Section 215 altogether, Congress instead modified that provision, replacing the mass collection of call records with a new framework permitting the government to query records held by companies using narrowly defined search terms. Yet despite the new restrictions, in 2017 alone, the government received records of Americans’ phone calls based on only 40 surveillance targets. Whether the NSA considers this “bulk” collection or not, the scale is staggering.
Moreover, because the government has failed to provide other key statistics that Congress mandated in the USA Freedom Act, we cannot even determine how many individuals are likely impacted by this surveillance.
Congress and the public must demand information that will help them determine whether provisions of the Patriot Act are still being misused. The NSA must comply with the law and release information that sheds light on how many individuals’ information is likely collected under the Section 215 call record program. The NSA should also say how many records the government has vacuumed up under a single order and how the bulk collection reforms in the USA Freedom Act are being implemented.
Is the Patriot Act being used to infringe on First Amendment-protected activities?
Section 215 and other Patriot Act authorities have long prohibited surveillance based “solely” on First Amendment-protected activities. Yet judicial issued in secret by the secretive Foreign Intelligence Surveillance Court suggest that these safeguards have been interpreted extremely narrowly. Thus, there are serious concerns that past reforms have not done enough to prevent the government from relying on protected speech to obtain surveillance orders.
At the same time, the Justice Department’s existing do not prohibit the government from using Section 215 and other provisions of the Patriot Act to target or collect information from journalists. The existing rules do not even provide the for journalists that apply in the criminal context, because those protections do not extend to Section 215 orders or national security letters. This leaves a serious gap in Justice Department protections to safeguard a free and independent press.
Lawmakers should ask for information about how many surveillance applications submitted to the FISC are based in whole or in part on First Amendment-protected activities. In addition, they should ask the government to disclose how often Patriot Act and the Foreign Intelligence Surveillance Act (FISA) authorities have been used to collect the information of journalists.
Is the Patriot Act being used to discriminate on the basis of race, religion, national origin, or other protected factors?
Historically, government surveillance has often been used to wrongly target, and surveil communities of color. For example, media disclosures revealed that the government was using FISA to prominent Muslim-American leaders during the administration of President George W. Bush. A recently leaked FBI intelligence assessment suggests the agency is targeting black activists as “extremists,” and the Trump administration wants to use “extreme vetting” impacting both immigrants and non-immigrants alike.
Congress should demand information about what safeguards currently exist to prevent discriminatory surveillance and what assessments have been performed to measure whether existing authorities disproportionately focus on minority communities.
Why has the government not disclosed more opinions from the secret intelligence court?
The USA Freedom Act directed the government to make “significant” or “novel” Foreign Intelligence Surveillance Court opinions publicly available whenever reasonably possible. Nonetheless, only a handful of opinions from the court have been published as a result. The government should clarify how it determines which opinions are “significant” or “novel” enough to be published, and it should disclose how many opinions remain completely secret. This information is critical for Congress to determine what additional reforms are needed to ensure transparency.
How many Americans have had their private information collected under other surveillance authorities?
Despite the urging of many members of Congress, the USA Freedom Act failed to include reforms of other surveillance authorities, including Section 702 of FISA. Although the NSA uses this law to collect massive amounts of Americans’ international communications, Congress has been unable to get key information about Section 702’s impact.
For example, the NSA reneged on a pledge to provide an estimate of how many Americans have their communications swept up under Section 702. Congress should demand the release of this information to guide the debate over what other surveillance reforms are needed to safeguard our rights.
Answers to these questions are essential as Congress debates expiring provisions of the Patriot Act and the additional safeguards that are needed to protect Americans’ rights.
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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.