This month, a strongly worded Washington Post by Federal Trade Commissioner Julie Brill calling for transparency in the business practices of the online data broker industry provoked a heated response. While the ACLU and other privacy advocates have long had their suspicions about how and why data brokers were tracking individuals, as the commissioner stated in her op-ed:
It took the NSA revelations to make concrete what this exchange means: that firms, governments or individuals, without our knowledge or consent, can amass large amounts of private information about people to use for purposes we don’t expect or understand.
Clearly displeased with the link to the NSA scandal, Linda Woolley—CEO and president of the Direct Marketing Association—fired back with an open to the commissioner. In the letter Woolley attacks the commissioner, claiming she disregards the benefits of data collection and unfairly demonizes the entire industry. But the commissioner is right to focus on the data broker industry’s troubling practices.
Interestingly, that massive, secret databases of individuals are being created and sold is not the issue under debate. That’s a simple and open matter of fact. For example:
- One aggregator, , boasts, “Our patented technology analyzes content from over sixty social sites, news sources, homepages and blog platforms and identifies the actual people behind it, combining their scattered digital footprints into a comprehensive record of their online identity.”
- as having “Real-Time Data on 80% of U.S. Emails.”
- out that one of the largest such aggregators, Acxiom, reportedly has information on about 700 million active consumers worldwide, with some 1,500 data points per person.
The excellent Wall Street Journal series, , provides a feel for what these databases can mean for people. was about Linda Twombly, a 67-year-old woman who, when surfing the Internet, was flooded with ads for Republican candidates leading up to the 2010 primary elections. The Journal revealed that RapLeaf Inc had a profile on her that included her full name and identified her as a conservative who was interested in Republican politics and the Bible, and donated to political and environmental causes. "Holy smokes," she said. "It is like a watchdog is watching me, and it is not good." The Journal found that RapLeaf's profiles included such sensitive information as a person's household income range, age range, and political leaning; the gender and age of children in the household; and personal interests in topics including religion, the Bible, gambling, tobacco, adult entertainment, and "get rich quick" offers. In all, RapLeaf segmented people into more than 400 categories.
But Wooley seems to want to focus on what she characterizes as a lack of harm caused by the existence of these databases. Ok, then, let’s talk about harm. Commissioner Brill wrote (and the ACLU has also pointed out) that data brokers are running their data through advanced algorithms that can make “alarmingly personal predictions about our health, financial status, interests, sexual orientation, religious beliefs, politics and habits.” Brill explained that while this may seem benign to some, this data could be used to determine “what offers we receive, what rates we pay, even what jobs we get.”
In 2006, for example, the on a man whose job offer was rescinded after a mistake by Acxiom. He lost a job that would have doubled his salary. Another told the story of a 92-year-old veteran who was bilked out of more than $100,000 by criminals who identified him from marketing lists.
While Woolley repeatedly stressed that this kind of data collection is harmless, she still pushed back on granting individuals access to their personal profiles. She even defended secretly sharing the data with third parties the individual has no relationship with and has disclosed no information to. She claims the exchange is “essential for business success” and that these “behind the scenes” deals will enrich people’s experience in the marketplace. Essentially, she’s just asking us to trust them.
Unfortunately, we are not dealing with companies that inspire a lot of trust. While RapLeaf never meant to sell Twombly’s real name with her profile information, the Journal reported they had sold personally identifiable information—such as a unique Facebook ID number, which can be traced back to a person's real name—to at least 12 companies. While RapLeaf has reportedly cleaned up its act, we can’t just assume such mistakes will always be caught and fixed, considering the lack of transparency these companies enjoy, and the rapid development of these new technologies.
Brill wrote that as we discuss the need for transparency surrounding government surveillance, Americans should also have the right to know what commercial data brokers know (or claim to know) about them. To help consumers regain such control, Brill has put forth her “Reclaim Your Name” initiative, which would establish a simple one-stop shop for consumers to see what data aggregators have collected about them, and delete or edit data as they see fit.
While we believe “Reclaim Your Name” is a great first step, ultimately Congress must act to regulate the industry and restore Americans’ robust privacy protections. We applaud the Commissioner for her hard-hitting op-ed, and her initiative.
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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.