The Nine Things You Should Know About the NSA Recommendations From the President’s Review Group
The President's Review Group on Intelligence and Communications Technologies just issued a report that unequivocally rejected the notion that privacy and civil liberties must be sacrificed in order to achieve a balance with national security. includes 46 recommendations for how to reform Intelligence Community programs and practices, several of which would go a long way toward protecting Americans' rights. Here are the nine most important things you need to know about those recommendations.
The phone records program doesn't work, invades Americans' privacy, and threatens our freedoms.
The Review Group was unable to find a single example where the NSA's mass phone record surveillance program provided crucial information in a terrorism investigation. It found that the government's view of Americans' privacy rights—based in the 1970s—is horribly out of date and does not reflect the sensitivity of modern data that is required to live a normal life and to participate in our democracy. Government requests for this data should be for "specific information relating to specific individuals or specific terrorist threats." (Italics theirs) While the report floated the idea of companies retaining data longer so that it will be available for the far more limited programs it proposed, such retention has been opposed by civil libertarians and the corporations.
National Security Letter (NSL) authorities should effectively be revoked.
NSLs are administrative subpoenas for communication, financial, and credit records. The FBI issues up to 50,000 of these a year in terrorism investigations, even for the records of people who are suspected of no wrongdoing. The Review Group says that not only should the standard for issuance be heightened, but also NSLs should all eventually be approved by a judge, thereby ending the FBI's overbroad access to personal records.
US Person information collected through Section 702 programs, such as PRISM, should be deleted or protected by a warrant.
Recent disclosures confirm that the FISA Amendments Act—the 2008 warrantless wiretapping law—has resulted in massive surveillance of international communications, even those where an American is on one end of the call. The Group recommended that US person information be deleted upon recognition unless it is actually necessary for foreign intelligence programs. It also said the government should not be searching through these vast databases looking for Americans without a warrant except in an emergency situation, and that the communications intercepted under these programs should not be used in criminal cases.
Non-US persons have privacy rights that should be respected.
The Review Group recognized that privacy is a human right protected by international treaties. While its recommendations for strengthening that protection come in the context of the NSA's current activities, it recommended two good starts. First, non-US persons should receive the same protections as Americans under the Privacy Act. Second, broad surveillance programs under Section 702 (such as PRISM) should only be used for our national defense – not for the amorphous category of "foreign intelligence," a change that would increase protections for both Americans and people abroad.
The government should fully support secure communications, not subvert them.
The report rebukes efforts to undermine strong encryption standards. It also recommends that the NSA stop amassing and exploiting security flaws that threaten broader security imperatives.
The government should be more transparent.
The Review Group concludes that there should be more publicly available information about the NSA's sweeping surveillance programs. More effort should be made to declassify court opinions, and legislation should require the government to proactively explain how many people its surveillance affects. The report also concludes that nondisclosure orders currently attached to surveillance directives sent to companies are over broad. The Group recommends that judges review all such gag orders and construe them narrowly. There should be a presumption that companies be permitted to describe publicly the types and numbers of orders they receive.
The secretive FISA court needs to hear from the other side.
The secret court that issues the NSA's surveillance orders now hears only from the government. The Review Group recommends creating a public interest advocate to defend Americans' privacy interests before the FISA Court, and allowing judges to call on independent technologists for their expertise on the technical implications of surveillance methods.
The NSA itself should be reformed.
The Review Group recommends that the NSA be "clearly designated as a foreign intelligence organization" and that it be stripped of any other duties. Its military mission as part of Cyber Command should be severed from the rest of the NSA that works on foreign intelligence issues. It also recommends that civilians be eligible to direct the NSA, and that the position of Director be confirmed by the Senate.
The Privacy and Civil Liberties Oversight Board should be expanded.
The report recommends that the PCLOB have a broader mandate so that it can oversee all foreign intelligence programs, not just those that are targeted at counterterrorism. It also suggests that the PCLOB be authorized to receive whistleblower complaints and serve an auditing function. The Board should also have an office dedicated to assessing technology and whether initiatives are sufficiently privacy protective.
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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
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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
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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.