The USA Patriot Act, passed hurriedly after 9/11, taught us that rushing a surveillance bill through Congress is a bad idea, producing complicated statutes ripe for abuse. Yet the leadership of the House Intelligence Committee is taking a page out of President George W. Bush’s playbook and trying to do just that.
Tomorrow, the committee will debate a bill that dramatically expands NSA surveillance authorities, including one that is scheduled to expire at the end of the year. The bill was publicly released just last night, giving members of the committee and other legislators less than 48 hours to try to understand the complex proposal.
Perhaps hoping no one has time to closely read the “FISA Amendments Reauthorization Act of 2017,” sponsors have the measure as one that makes key changes to intelligence authorities to “protect Americans’ privacy rights.” The truth, however, is that it does the exact opposite.
This is why the ACLU, joined by over 30 organizations from across the political spectrum, is urging members of Congress to oppose the bill. Here are some of the reasons we’re fighting this legislation.
It could be used to allow more unconstitutional surveillance that targets Americans and foreigners.
Several existing surveillance law provisions allow the government to spy on individuals for foreign intelligence purposes, provided the government has cause to believe they are a “foreign power” or “agent of a foreign power.” This includes individuals acting on behalf of a foreign government, terrorist organization, or foreign political organization. The intelligence bill expands the definition of these terms to include individuals or entities engaging in a wide array of so-called “malicious cyber” activities. This broad term could be used by the government to surveil people who may only be tangentially connected to computer crimes, even without evidence to show they intended to commit a crime.
The bill could extend bulk surveillance under Section 702.
Section 702, the controversial spying law set to expire at the end of the year, should be meaningfully reformed or allowed to sunset. Instead, this bill extends Section 702 for four years and includes language that suggests the government can use the provision to go beyond human targets to also target “a facility, place, premises, or property.” This could be read by the government to allow broad surveillance of, for example, entire facilities or popular internet services like Tor, used by millions of people.
The bill could be interpreted to codify illegal surveillance practices.
The government uses Section 702 to engage in a host of illegal practices — many of which the public courts have had little to no opportunity to fully examine. For example, the government has wrongly asserted that it can use Section 702 to collect communications that are not to or from a target, but merely “about” a target. That includes wholly domestic communications. After several instances where the government failed to comply with its own policies, raising Fourth Amendment problems identified by the secret intelligence court that oversees this surveillance, the NSA announced it would temporarily halt this practice in April.
This bill would permit “about” collection to be restarted following approval of the intelligence courts. Once approved, the bill provides one month for Congress to pass a new law preventing the practice from restarting —a time period so short that the government would likely have ample opportunity to claim congressional approval of this surveillance simply as a result of inaction.
The government could interpret the bill to allow criminal prosecutions based on evidence acquired without a warrant.
Despite the fact that Section 702 prohibits the targeting of Americans, the government claims that it can search through the data swept up under the law for information about citizens, exploiting what has commonly been referred to as the “backdoor search loophole.” Instead of reforming this practice by adopting bipartisan proposals to require a warrant before performing backdoor searches, the bill would place no restrictions on when the government can search through these databases and will likely be used by the government to claim that Congress has legalized this troubling practice.
Even more, the bill contains language that permits information searched or accessed without a probable cause warrant to be used for any purpose, including criminal prosecutions. Thus, individuals who have their information swept up under Section 702 could have this information used against them for immigration purposes, to pressure them into becoming an informant, or even to criminally prosecute them for a minor drug crime.
The public should not be fooled by the House members who claim that this bill protects our rights — it does the exact opposite. And by rushing it through the legislative process, these members are trying to cut off debate that would show exactly how empty their claims are.
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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.