Some leading police officials around the nation seem to be realizing that high-technology surveillance systems need to be deployed with great care, lest they prompt a public backlash. As the Atlantic Cities pointed out in a Friday, the Seattle police department has unilaterally pulled the plug on a new citywide mesh surveillance network after a local newspaper the department’s lack of rules and policies surrounding how the network would be used, and lack of public awareness or input surrounding the system.
“The wireless mesh network will be deactivated until city council approves a draft policy and until there's an opportunity for vigorous public debate,” said a police spokesman.
All too often when it comes to surveillance technology, capability is driving policy, as my colleague Catherine Crump pointed out recently. But there are signs of hope. For example, Philadelphia Police Chief Charles Ramsay recently on this in an at a major police conference:
Technology is a powerful tool. It will be both the benefactor and the curse for policing. Moving forward we must be thoughtful about technology. We must drive technological solutions to our problems and not be driven by the technologists. We will increasingly face challenges surrounding the issue of individual privacy vs. public security. For example, license plate readers are in use now. They could be the predecessors of facial recognition equipment in patrol cars. We must remind ourselves that, “Just because we can do something doesn’t mean we should do it!” We must decide where the limits should be before we face or cross them. We need to be part of that discussion and understand that our first priority is the protection of constitutional rights.
At the same convention, Vernon Keenan, director of the Georgia Bureau of Investigations, speaking in the context of law enforcement use of social media, :
I want to start out by saying that I am not a civil libertarian; I am a law enforcement executive who recognizes “hot stove” issues that exist, and knows what happens when you touch a hot stove: you get burned. So when you get crossed up with the privacy and civil liberties issues, that is a hot stove. And one of the things that we have learned: there’s one thing to know there’s a hot stove and be careful around it. There’s another thing to take an issue like new technology and social media, and not realize there’s a hot stove in the room, where you’re wandering around. And that’s what’s happening across the board in many instances, where you have law enforcement executives such as myself, that are not very attuned to technology or social media. I use email, that’s about the extent of my knowledge and use of social media. But I recognize the dangers of getting too far out of the bounds of what is the proper law enforcement use of social media.…
American citizens are concerned about how our ability to use social media, and how our ability to use technology, are being employed. And I don’t think I would be shocking anyone here to say, if you looked at what is happening with the NSA today, and the scrutiny they are coming under for the abilities they have to collect information, analyze information, share information—and so, that’s their problem. But their scrutiny, that they come under, filters down to us.
The International Association of Chiefs of Police, which hosted the convention at which Ramsay and Keenan spoke, last year issued recommendations on drones that (as I noted in an analysis at the time) included detailed recommendations for community engagement before deploying drones. Departments should “engage their community early in the planning process” and provide “an opportunity to review and comment on agency procedures as they are being drafted,” the association recommended.
Speaking of drones, if there is a growing recognition of the need for community input into new policing technologies, I suspect the remarkable outpouring of public concern over domestic surveillance drones may be behind it. Already the ability of police to deploy drones has been subject to regulation in eight states. And as Keenan suggests, the Snowden revelations and the public debate they’ve sparked are probably also provoking some soul-searching by police.
In any case, we can only hope that these statements and actions do indicate a growing recognition within law enforcement leadership that, given the pace of technological development today, the police should not engage in “policymaking by procurement”—i.e. just going out and buying stuff and putting it out on the streets—without public discussion of how those technologies might affect safety and liberty, and democratic decisions about what balance to strike. (And as my colleague Kade Crockford points out, the right balance in America is usually to for surveillance such as intensive location tracking.)
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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.