The Washington Post ran a Thursday on a technology that I've been very concerned about for a while: persistent aerial surveillance. Specifically, it profiled a company, Persistent Surveillance Solutions, that has been deploying this panoptic video technology over American cities, as well as in Mexico.
This technology first came to our attention when we got reports from activists in Dayton, Ohio, that the police there had tested it. Some months later, I came across the president of the company, Ross McNutt, giving a demonstration at a drones conference in Orlando. The demonstration was fascinating and compelling, and will no doubt be very persuasive to a lot of people. To me, as a privacy advocate, it was terrifying.
Spying the "ACLU" printed on my badge, McNutt immediately sought to engage with me and followed up with a request for a meeting. A few months later, he was in my office explaining the technology, answering my questions, and pressing his case for why we should not be concerned. Much of what he told me echoed what he apparently told Craig Timberg for the Post's , such as the limits on the resolution of his system, and his plans, as camera resolution improves, to use that improvement to increase his coverage area rather than the pixel count of the images collected. (He pointed out that covering a larger area is a square function, requiring exponential increases in capacity.) He also told me:
- The system "can't tell the difference between a person and a bush sitting in a back yard, unless you move."
- "We only do major crimes; it's all we have time for."
- His signal is updated only one time per second, a frame rate that, while very slow by video standards, "is more than adequate to follow vehicles."
- The Dayton police chief wants to "bring in at-risk youth in and show them what we can do," purely for the deterrent effect.
- "We can watch half of Dayton at once."
- "Of thousands of moving vehicles, we're interested in just a couple."
- Though meaningless in the city, "on the border we can do movement detection."
- He envisions communities being presented with a range of policy options on questions such as data retention, which he compared to the IE browser privacy slider. "My analyst should be trained, subject to oversight and policies, and able to say 'no' to the cop sitting next to him."
I also asked McNutt about the ability to log and store location movements on a mass scale. What he told me is that automated location-trail logging is still very limited. He said the Air Force has been working on it for 10 years, and "is failing with automated tracking." In contrast, "Ours is a manpower-intensive system" in which analysts manually, visually trace movements from a crime scene. He said their current policy was that they "only start from a reported crime," and that typically analysts working for his company will "put everything together" overnight, and then present detectives with a detailed incident report.
I give McNutt credit for reaching out to us, for answering my questions seemingly frankly and straightforwardly, and for thinking about the privacy dimensions of what his company does. And some aspects of his service, such as the low resolution and the labor-intensive nature of the analysis, do offer some comfort.
In the end, however, this is not about McNutt or even his company; it's a much bigger issue that we're confronting. The fact is, this technology has arrived, and we should not take comfort in the various limitations imposed by current technology (which will be wiped out by time and progress) or by self-restraint on the part of McNutt and his company (which always ends up falling by the wayside, if not by one company than by its competitors). As McNutt himself pointed out to me, "someone is going to do this."
That is, if we decide to permit it. When I saw McNutt's presentation in Orlando, I thought to myself, "Here we are, this is where the rubber hits the road." This technology like nothing else outside the NSA confronts us with the question of whether we want to go (continue) down the path of becoming a "collect it all" society, where everything we do is stored so that the authorities can hit "rewind" on our lives should we for some reason come to their attention.
The Post points out that Americans have become increasingly accepting of video surveillance cameras. But drones have provoked and concern across the country, and this technology does exactly what everyone has feared that drones would do—except it uses manned aircraft instead of drones to get around the current legal restrictions on unmanned flight. In a rational world the reaction against drones will translate to a reaction against persistent aerial surveillance in general.
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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.