After passing a surveillance reform bill last year, Congress appears poised to turn to examine another controversial surveillance authority — Section 702 of FISA. Using Section 702, the government copies, searches, and retains vast quantities of Americans’ international communications, all without ever obtaining a warrant.
On Tuesday, the House Judiciary Committee held its first , in what we hope is a series, on Section 702 this Congress. Unfortunately, because the hearing was closed to the public, we do not know what issues were raised. In the past, Congress has reauthorized Section 702 without key information. However, we hope that members of Congress made clear that they would not reauthorize Section 702 when it is set to expire in 2017 without, at a minimum, answering the following key questions:
1. How many Americans have had their private information collected?
The government’s Section 702 position is inherently contradictory: Officials insist that the surveillance does not violate Americans’ rights, yet they claim they have no way of knowing how many Americans’ communications are even collected.
The demand for information about the number of Americans whose information is collected under Section 702 is not new. Sen. Wyden (D-Ore.) has repeatedly asked Director of National Intelligence James Clapper for this information. Indeed, the Privacy and Civil Liberties Oversight Board that it requested but was not able to get this information as part of its review of Section 702.
These practices are at odds with the intent of the law and represent an end run around the Fourth Amendment’s warrant requirement.
Despite these requests, the government has staunchly refused to provide an account of the number of Americans whose information is collected and searched under Section 702. The primary justifications for this refusal have been that calculating this information would not be possible and, ironically, would require the government to commit additional privacy intrusions (presumably because it would require review of communications that otherwise would not be searched).
These justifications simply don’t stand up to scrutiny. First, the government has yet to provide concrete, detailed information on the resources that would be needed to obtain this information. Second, in response to a Foreign Intelligence Surveillance Court the number of wholly domestic communications collected under Section 702, the NSA conducted a sampling of thousands of communications to provide a rough estimate of this information. With appropriate privacy protections, the intelligence community could use a similar methodology to estimate the number of Americans whose information is collected.
2. What is the legal justification for using Section 702 to scan virtually all Americans’ international communications over the Internet?
Over the past three years, it has become clear that the government often performs legal acrobatics in order to justify surveillance that was never authorized by Congress in the first place. Such acrobatics appear to extend to the NSA’s “Upstream surveillance,” which it operates under Section 702.
Upstream surveillance involves the mass copying and searching of virtually all Internet communications flowing into and out of the United States. With the help of companies like Verizon and AT&T, the NSA conducts this surveillance by tapping directly into the Internet backbone inside the United States — the physical infrastructure that carries the communications of hundreds of millions of Americans and others around the world. After copying nearly all of this traffic, the NSA searches the metadata and content for key terms, called “selectors,” that are associated with its thousands of foreign targets. Communications that contain these selectors can be retained and analyzed by the NSA with few restrictions.
The ACLU and have challenged the mass searches and seizures of Americans’ Internet communications under Upstream surveillance as both a violation of the Fourth Amendment and a violation of the restrictions that Congress wrote into Section 702 itself. Thus, it is critical that Congress press the intelligence community to disclose its legal analysis — and that Congress take steps to ensure that Section 702 is not used to justify illegal and unconstitutional mass surveillance of Americans’ international communications.
3. How many “backdoor searches” does the FBI conduct each year?
Members of Congress are rightfully concerned that the government performs “backdoor searches” — where analysts and investigators search Section 702 databases for information using US person identifiers (for example, a US person’s name or phone number). These searches are not authorized by the text of Section 702, and they are contrary to the intent of the law, which explicitly prohibits the use of Section 702 to target US persons.
The surveillance reform bill passed last year, the , some reporting on the number of backdoor searches — but conspicuously excludes the FBI from this requirement. This is despite the fact that the Privacy and Civil Liberties Oversight Board reported that the FBI conducts backdoor searches in virtually every national security investigation and many other criminal investigations.
The FBI is clearly capable of tracking its use of backdoor searches. Other federal agencies, such as the CIA, account for the number of backdoor searches they perform. Given this, members of Congress should aggressively push the FBI to provide an accurate account of the number of backdoor searches it performs. Such information is essential to assess the impact that warrantless surveillance under Section 702 has on Americans.
4. What are the rules for using Section 702 information in criminal prosecutions and investigations?
Are there cases where information obtained or derived from Section 702 is used to assist in low-level drug investigations, tax-fraud investigations, or other investigations that have nothing to do with national security? These basic questions about how Section 702 is used in domestic criminal investigations remain unanswered.
Section 702 was not intended to be used to investigate and prosecute domestic crimes — yet internal procedures appear to permit just that. Intelligence officials have that internal regulations permit Section 702 information to be used as evidence at trial in a variety of domestic criminal contexts, including transnational drug crimes, certain forms of battery, and crimes involving damage to critical infrastructure. Moreover, it appears that government regulations permit the use of Section 702 information during the investigation stage of any crime.
Concerns over the widespread use of this information are compounded by the fact that the government has historically failed to fulfill its obligations to notify individuals when it intends to use information “obtained or derived” from Section 702 in legal proceedings against them. Although the Justice Department began notifying criminal defendants of the use of Section 702-derived information in October 2013, it has done so in only five cases, and there has not been a . In addition, other federal agencies, such as the Treasury Department, have never provided Section 702 notifications, despite their reliance on this information.
These practices are at odds with the intent of the law and represent an end run around the Fourth Amendment’s warrant requirement. Given this, it is critical that the intelligence community be required to disclose more information about the use of Section 702 information in criminal investigations and prosecutions.
Many of these questions should have been answered before Section 702 was ever passed. Now, Congress should demand these answers as it considers how to reform Section 702 to protect the privacy rights of Americans and others.
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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.