Every time you email someone overseas, the NSA copies and searches your message. It makes no difference if you or the person you're communicating with has done anything wrong. If the NSA believes your message could contain information relating to the foreign affairs of the United States – because of whom you're talking to, or whom you're talking about – it may hold on to it for as long as three years and sometimes much longer.
A new ACLU lawsuit filed today challenges this dragnet spying, called "upstream" surveillance, on behalf of Wikimedia and a broad coalition of educational, human rights, legal, and media organizations whose work depends on the privacy of their communications. The plaintiffs include Amnesty International USA, the National Association of Criminal Defense Lawyers, and The Nation magazine, and many other organizations whose work is critical to the functioning of our democracy.
But the effect of the surveillance we're challenging goes far beyond these organizations. The surveillance affects virtually every American who uses the Internet to connect with people overseas – and many who do little more than email their friends or family or browse the web. And it should be disturbing to all of us, because free expression and intellectual inquiry will wither away if the NSA is looking over our shoulders while we're online.
The world of the existence of upstream surveillance from whistleblower Edward Snowden's spying revelations in June 2013. Since then, official disclosures and media reports have shown that the NSA is routinely seizing and copying the communications of millions of ordinary Americans while they are traveling over the Internet. The NSA conducts this surveillance by tapping directly into the Internet backbone inside the United States – the network of high-capacity cables and switches that carry vast numbers of Americans' communications with each other and with the rest of the world. Once the NSA copies the communications, it searches the contents of almost all international text-based communications – and many domestic ones as well – for search terms relating to its "targets."
In short, the NSA has cast a massive dragnet over Americans' international communications.
Inside the United States, upstream surveillance is conducted under a controversial spying law called the FISA Amendments Act, which allows the NSA to target the communications of foreigners abroad and to intercept Americans' communications with those foreign targets. The main problem with the law is that it doesn't limit which foreigners can be targeted. The NSA's targets may include journalists, academics, government officials, tech workers, scientists, and other innocent people who are not connected even remotely with terrorism or suspected of any wrongdoing. The agency sweeps up Americans' communications with all of those targets.
And, as our lawsuit explains, the NSA is exceeding even the authority granted by the FISA Amendments Act. Rather than limit itself to monitoring Americans' communications with the foreign targets, the NSA is spying on everyone, trying to find out who might be talking or reading about those targets.
As a result, countless innocent people will be caught up in the NSA's massive net. For instance, a high school student in the U.S. working on a term paper might visit a foreign website to read a news story or download research materials. If those documents happen to contain an email address targeted by the NSA – like this news does – chances are the communications will be intercepted and stored for further scrutiny. The same would be true if an overseas friend, colleague, or contact sent the student a copy of that news story in an email message.
As former NSA Director Michael Hayden recently , "[L]et me be really clear. NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information."
That doesn't sound like much of a limitation on the NSA's spying – and it's not. Like many Americans, the plaintiffs in our lawsuit communicate with scores of people overseas who the NSA likely finds "interesting." For instance, researchers at Human Rights Watch depend on foreign journalists, lawyers, political dissidents, and witnesses to human rights abuses for information crucial to their advocacy and reporting back home. Wikimedia communicates with millions of people abroad, many of whom read or contribute to Wikipedia, one of the largest repositories of human knowledge on earth. We know, thanks to Edward Snowden, that the NSA is interested in what some of those users are reading.
The fact that upstream surveillance is supposedly focused on international communications is hardly a saving grace. Americans spend more and more of their lives communicating over the Internet – and more and more of those communications are global in nature, whether we realize it or not. An email from a woman in Philadelphia to her mother in Phoenix might be routed through Canada without either one knowing it. Similarly, companies like Microsoft and Google often store backup copies of their U.S. customers' emails on servers overseas, again with hardly anyone the wiser. The NSA is peeking inside virtually all of these.
Our plaintiffs have had to go out of their way to take measures, sometimes at a high cost, to protect their communications from their own government. Despite these precautions, the chilling effect is palpable. NSA surveillance makes it harder for the plaintiffs to gather information from sources who believe that by sharing information over the Internet, they are also sharing it with the U.S. government and the intelligence agencies it partners with. The work of human rights and free-knowledge organizations is profoundly undermined by this unconstitutional surveillance, and we're all worse off.
Upstream surveillance flips the Constitution on its head. It allows the government to search everything first and ask questions later, making us all less free in the process. Our suit aims to stop this kind of surveillance. Please join our effort to reform the NSA.
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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.