Protests, Aerial Surveillance, and Police Defunding
For activists across the country who have taken to the streets to demand racial justice and police accountability, the sound of protest has been not just the sound of chants, but the sound of helicopters. For many police departments, these protests have been an occasion to bring out all their high-tech , and those include surveillance aircraft, ranging from police helicopters to fixed-wing to . Like all expensive law enforcement practices, police aerial surveillance should be questioned and reevaluated as part of a broader divestment from police in the United States. That is doubly true considering the powerful new surveillance technologies that will increasingly be put into the skies above American cities and towns — if nothing is done to stop them.
Last week, U.S. Customs and Border Protection (CBP) was flying a large, high-altitude Predator drone above Minneapolis. CBP has no business deploying military-grade drones — authorized by Congress for border patrol — over domestic political protests, and these drones should not be flying over Minneapolis, or any other U.S. community. Such flights raise questions about the lack of transparency (we don’t know what kinds of equipment the agency had on board), the lack of privacy protections (CBP being a troubled agency with a particular absence of for privacy), and mission creep.
The Minneapolis large-drone deployment was especially ominous because it involved surveillance of people protesting police abuse — but it’s just the tip of the iceberg. CBP is the only non-military agency that has received permission from the FAA to fly large drones at high altitudes, but it frequently to other agencies for uses ranging far afield from CBP’s border mission — and from the border. The defense contractor General Atomics is tests of a similar drone flight over San Diego this year.
Of course, surveillance abuses can come not just from drones but also from piloted aircraft. In 2004, for example, a New York City couple having sex at night on a pitch-black rooftop balcony — where they had every reason to expect privacy — by a $9.8 million NYPD helicopter equipped with night vision that had been deployed to monitor a nearby bicycle protest. Rather than apologize, NYPD officials flatly denied that this filming constituted an abuse, telling a television reporter, “This is what police in helicopters are supposed to do, check out people to make sure no one is . . . doing anything illegal.”
More recently, we have seen piloted airplanes used for long-term, mass surveillance over the entire city of Baltimore using wide-area motion imagery. This is just the latest surveillance technique to be deployed against communities of color, and is a clear violation of residents’ constitutional right to privacy. A historic legal battle over the program is now underway as the result of an ACLU legal challenge.
The FBI also regularly flies “” of surveillance aircraft American cities — including over protest marches such as those in , Missouri and in following the 2015 death of Freddie Gray in police custody. The planes are typically registered to front companies to hide their identities as government planes. In addition to the CBP drone in Minneapolis, the piloted surveillance aircraft over George Floyd protests in . and 13 other cities, sending video to a centralized CBP facility, letting federal agents view live aerial footage on their phones, and storing the footage for potential use in criminal investigations.
Ultimately, the answer is for communities — and the federal government — to put in place strong privacy protections that apply equally to drones and piloted aircraft.
Today, police helicopters — which first appeared in the late 1940s — have become a well-established law enforcement tool in many cities. Police helicopters and fixed wing aircraft are used for a variety of purposes including patrol, pursuit, search and rescue, and surveillance.
But police helicopters are also used to intimidate through a militaristic display of raw power. That role was epitomized by the use of a military last week to disperse peaceful racial justice protesters in Washington, D.C. by hovering low over a street, creating wind gusts strong enough to snap tree limbs. Experts this tactic a “show of force” and it’s a common military tactic to “intimidate and remind potential enemies of your armed presence.”
Beyond such a clearly abusive deployment, however, even civilian police helicopters can have a similar effect. Police helicopters — many of which are military surplus aircraft — are large, loud machines, heavily associated with military weaponry and which, by virtue of their position in the sky, signify surveillance, dominance, and control. In at least some places they are by police for the purpose of deterring crime — which might sound like a good thing until you pause to reflect that they do so by making all residents of certain neighborhoods feel as though they are being watched by an overpowering occupying force. And those neighborhoods aren’t affluent white ones.
American communities should take a hard look at their police departments’ aerial surveillance programs as part of an overall reassessment and divestment from law enforcement. How beneficial are they really for the community as a whole? Are their benefits proportional to their cost — including the opportunity cost of underfunding social programs to support expensive aircraft? To what extent are they used in positive ways such as for search and rescue, compared to negative ones such as “” people exercising their First Amendment right to peaceably assemble? Do they fit into positive community visions that stress support, uplift, and assistance, rather than the harsh hammer of a militarized enforcement approach?
For many communities, the answer will be no, and those communities should end their aerial surveillance programs. Maybe others will decide to allow their law enforcement departments to retain aerial surveillance capabilities — but those should be re-focused, regulated, and scaled back.
Regulations should ensure transparency so communities can decide for themselves what kind of surveillance the police departments that serve them are deploying. For no justifiable reason, CBP what agency it was flying its Predators over Minneapolis on behalf of and whether it was a federal or state agency. (The New York Times weeks later that it was for a branch of Immigration and Customs Enforcement.) We also don’t know what kinds of surveillance technologies those drones are carrying. The U.S. House of Representatives has an investigation into the case, but it shouldn’t take a congressional investigation to get such information.
The privacy protections for all aerial surveillance that we think are necessary (which we have previously laid out with regard to drones) would not allow for aerial mass surveillance of any kind, including and the use of — electronic dragnets that people’s cell phone data. In general, communities should engage in careful monitoring and regulation of the devices that are installed on law enforcement aircraft. Police also shouldn’t be permitted to engage in suspicionless aerial surveillance — flying around aimlessly looking for trouble based on the hunches or curiosity of their pilots, or for any other form of patrol. Where aerial surveillance is used it should be carried out only in emergencies, for specific purposes that don’t implicate privacy such as accident- or crime-scene photography, or where there are specific and articulable grounds to believe that the aircraft will collect evidence relating to a specific instance of criminal wrongdoing (preferably through a warrant requirement as in some states such as ).
Law enforcement will argue that it needs aerial surveillance to achieve “situational awareness” across large areas during times of civil unrest and/or large protests. Communities should do a hard examination of that claim. Just how often does law enforcement have a legitimate need for that kind of surveillance? Can the aims of such flights be achieved through ground observations or other techniques that have lower costs, fewer chilling effects on protest, and less risk of lending themselves to abusive surveillance? If and when there is a genuine need for aerial surveillance, are high-tech surveillance devices necessary, or can that need be met through plain-view visual surveillance? And how much is the community paying for what is most likely a rarely needed capability?
Good privacy protections are especially important given the futuristic surveillance devices that are now available. Drones and other aircraft are a platform — one that can be used to carry any number of other technologies up into the sky. Among the sensors they can carry are GPS, radar, range-finders, magnetic-field change sensing, sonar, radio frequency sensors, and chemical and biochemical sensors. They can carry Lidar, which can be used to see through some barriers such as foliage and for such functions as change detection, in which even small changes in a landscape, such as tire tracks, are automatically flagged. And of course, aircraft can carry all kinds of cameras, including gigapixel lens arrays that can sweep in enormous areas, and infrared sensors that “see” beyond the visual part of the electromagnetic spectrum.
Perhaps most significantly, camera footage and other data can increasingly be analyzed using face recognition, license plate recognition, and other artificial intelligence techniques that promise to supercharge the analysis of datasets that are too large for humans to reasonably review. That’s not even counting whatever technologies may be developed in the future.
Given the role that aerial surveillance has played in the George Floyd and other protests, as well as the tsunami of new aerial surveillance technologies that are coming our way, such capabilities should be part of the conversation over police divestment that the recent protests have sparked.
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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.