The NSA Claims It Wants to Be Transparent. How About Starting With Section 702?
Unless something changes, Congress will once again be forced to vote on an expiring surveillance law — while being kept in the dark about what it actually does.
Since the Snowden revelations, Congress has been debating Section 702 of FISA, a surveillance law that is being used by the government to copy and search millions of Americans’ overseas communications. Section 702 is set to expire in 2017 — but the intelligence agencies have already made clear that they certain efforts to reform the law. They have also resisted releasing critical information about how the law impacts Americans.
Section 702 surveillance differs radically from conventional law-enforcement surveillance. Under Section 702, the government can collect all the email and phone communications of any “target” foreigner overseas who is believed to have “foreign intelligence” information. This term is broadly defined to include information about foreign affairs with no connection to terrorism or criminal activity — for example, an allied government’s diplomatic endeavors or journalists’ communications with government whistleblowers. Surveillance under Section 702 is conducted without a probable cause warrant. Instead, the Foreign Intelligence Surveillance Court approves only the general procedures that the NSA uses to identify specific targets.
As part of this surveillance, the NSA collects countless international communications involving Americans and scans virtually all international communications for terms believed to be associated with “targets.” (In part for this reason, the ACLU has filed a lawsuit challenging the constitutionality of some of the NSA’s surveillance activities under Section 702.)
Congress and the public deserve more information about Section 702 to allow an informed debate about the law. Today, the ACLU joined over 30 privacy and civil rights organizations urging the government to release more information about Section 702.
Here’s what we want to know:
1. The number of Americans whose information has been collected under Section 702
The intelligence agencies have said that Section 702 has to protect the privacy of Americans. That’s a bold statement given that, when asked by , they say they cannot even estimate the number of Americans whose information is collected under Section 702 programs.
The reports of media organizations — which provide most of the data we have — are concerning. In 2014, The Washington Post examined over 160,000 email and instant-message conversations that were reportedly collected under Section 702. They that 90 percent of these communications involved individuals who were not Section 702 targets, and over half involved U.S. citizens or residents.
If the Post can estimate how many Americans are swept up in Section 702 surveillance, then the intelligence agencies have no excuse not to do the same. Like the Post, they can use a simple statistical sample.
2. The total number of times the government has searched data collected under Section 702 for information about Americans
Emails and phone calls collected under Section 702 are routinely searched by the NSA, FBI, and other law enforcement agencies for information about Americans in a variety of criminal investigations. These searches occur without a warrant and despite the fact that the intelligence agencies have that the law is designed to target individuals overseas, not Americans.
A majority of the House of Representatives believes that these agencies should get a warrant before they conduct these types of searches — but the intelligence agencies have opposed such reforms. In order to fully understand the implications of Section 702, the government should disclose how many times federal agencies, including the FBI, have searched their Section 702 database for information about Americans.
3. Whether individuals are notified when Section 702 information is used against them
We know that information obtained under Section 702 — which can be gathered without a warrant or even a shred of suspicion that someone has committed a crime — is being used as evidence in criminal proceedings. But there is reason to doubt that the government is complying with its obligation to tell these individuals how such evidence was gathered so they may challenge the government’s conduct in court.
As part of the upcoming debate over Section 702, the Department of Justice should release its policies about when individuals are informed that Section 702 information is being used against them.
Earlier this week, the intelligence community a transparency implementation plan — affirming their commitment to ensuring the public is informed about what the NSA is doing and how Americans’ rights are being protected. It would be nice if this marked a shift from the NSA’s history of excessive secrecy, which has undermined genuine debate about unlawful and unpopular programs.
If the NSA wants to commit itself to transparency, Section 702 could be a good place to start.
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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
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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.