Members of Congress Just Voted to Give the Trump Administration Greater Spy Powers
House leadership today once again caved to irresponsible fearmongering from the intelligence agencies and succeeded in jamming through a hastily drafted surveillance bill.
In a vote, the House passed a bill that would extend, or in many respects possibly expand, a controversial spying authority known as Section 702 of the Foreign Intelligence Surveillance Act. This law is used to spy on the emails, text messages, and other electronic communications of Americans and foreigners without a warrant. The bill now goes to the Senate.
The members who supported the dangerous FISA Amendments Reauthorization Act, including House Speaker Paul Ryan (R-Wisc.) and Democratic Minority Leader Nancy Pelosi (D-Calif.), acted in direct opposition to the interests of their constituents to be free from warrantless government spying. Senate leaders should refuse to buckle under pressure from the Trump administration and intelligence committees, and instead vote to reform these government powers, which could too easily be deployed to spy on immigrant communities, minorities, government critics — and everyone else.
Since the Snowden revelations in 2013, the public learned that Section 702 has been used unlawfully and in ways that was never intended. The government has more than 100,000 “targets” for surveillance, and collects hundreds of millions of communications per year. These targets, which can be people or groups, aren’t individually approved by a court. By design, this dragnet includes intimate and private communications with individuals in the U.S., and very likely disproportionately impacts immigrants, journalists, and global businesses that more frequently engage in overseas communications.
The government would have you believe that all of the individuals they target are known terrorists. But we know this is not true. Court records confirm that not all 702 targets are terrorism suspects. Indeed, the law allows the government to target individuals who it believes are reasonably likely to communicate about “foreign affairs.” If you are a journalist talking about North Korea, a businessman expressing thoughts about the global economy, or an ordinary person discussing the Trump border wall proposal, your conversation could be considered “foreign intelligence” under the law’s broad definition.
This is only a part of the problem. The current law also places few restrictions on how this trove of information can be used.
The government asserts that it has a right to search through data collected under Section 702 for information about Americans — whom the government is not supposed to target under Section 702 — without a warrant. To justify these “backdoor searches,” it can simply claim that it is seeking “foreign intelligence” or evidence of a crime. The FBI routinely searches through Section 702 information in cases unrelated to national security or where they may not even have the facts necessary to open a criminal investigation.
Instead of taking steps to close this loophole, the House just made the law worse. The bill that advances to the Senate, first introduced by Rep. Devin Nunes (R-Calif.), would allow backdoor searches to continue virtually unchecked, even in cases where the FBI does not have an active investigation or merely asserts a foreign intelligence purpose. In addition, Nunes’ bill risks bringing back — and codifying — illegal surveillance practices that the government has used to collect domestic communications that are merely “about” surveillance targets.
This is the wrong approach. Before passing this dangerous bill, the House voted down, in a vote, an amendment sponsored by Rep. Justin Amash (R-Mich.) and Rep. Zoe Lofgren (D-Calif.). That amendment would have required the government to get a warrant when it searches for the information of American citizens and residents and to take steps to end the collection of wholly domestic communications. Such reforms are critical to prevent Section 702 from being used as a tool that can be improperly deployed against activists and other vulnerable communities.
Our country has a checkered past when it comes to surveillance. Broad and unchecked surveillance powers have been used as a tool against activists, government critics, journalists, and minorities. Martin Luther King, Jr., Cesar Chavez, Vietnam war critics, and Muhammad Ali were among those that have been surveilled under the pretext of protecting “national security.”
Given this history, members of Congress and the public should be skeptical of claims that expanding or maintaining warrantless surveillance powers are needed to keep our country safe. And they should be especially wary of providing more power to intelligence agencies in the current environment, where the president has already adopted policies that discriminate and target individuals based on their religion, nationality, and viewpoints.
Members of Congress have often publicly expressed concern at the Trump administration’s overreach and discrimination. If senators vote to give the administration greater spying authority, those words will prove awfully hollow.
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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.