The race is on.
Senator Leahy (D-Vt.) introduced today of the USA Freedom Act to rein in NSA surveillance, and only 10 legislative days remain to get it through the Senate before the November elections.
To put this in historical context: If the Senate passes the bill, it will be the first time since passage of the Foreign Intelligence Surveillance Act in 1978 that the chamber has taken action to constrain the intelligence community, and the first time Congress has a real shot at restoring the crucial privacy protections lost in the Patriot Act. To quote Joe Biden during the signing of the healthcare bill, "This is a big f---ing deal."
The bill represents a compromise between companies, privacy groups, Senate negotiators, the White House, and the intelligence community. It's not perfect, and it only deals with one narrow surveillance authority, but here's why the ACLU supports the bill as introduced:
It ends bulk collection and significantly limits the ability of the government to conduct dragnet surveillance under Section 215 of the Patriot Act.
You might remember that one of our main of the House-passed version of the USA Freedom Act was that it contained a broad definition of "specific selection term" (SST), which, simply put, is the term that the government uses to describe the records it wants to collect. As it was approved in the House, that definition could be abused to permit the collection of everyone's records in an entire area code or zip code, even an entire network server.
The new version of the bill creates an exhaustive list of permissible SSTs for certain programs. If the new version works properly, the government will no longer be able to abuse the provision that led to the collection of the call detail records of virtually everyone in America.
For programs without an exhaustive list of SSTs, the bill contains language indicating that the SSTs must be narrowly limited, and it explicitly prohibits broad SSTs based on, for example, an entire city or telephone service provider. The intent of these provisions is to put an end to other bulk or "bulky" collection programs, such as the CIA's bulk collection of certain financial data. And, as an additional protection, in some cases, the bill also explicitly requires the government to destroy irrelevant information that it collects.
If the government abuses its authority, this bill could ensure we would find out about it.
If the Snowden revelations taught us anything, it was that the government does a whole lot of things that the public and members of Congress don't know about. In response, this bill contains provisions that would require the Foreign Intelligence Surveillance Court (FISC) to release opinions or at least relevant information about important opinions.
In other words, if the court decides to interpret existing law to permit collection of everyone's email in Washington, D.C. – we've got a better shot at knowing.
The bill would place someone inside the FISC to advocate for us.
Currently, in secret Foreign Intelligence Surveillance Court proceedings, there are two parties – the judge and the government attorney arguing for surveillance. That's like a prosecution with no defense attorney. This bill creates a special advocate within the FISC who can advocate for the privacy interests of Americans and innocent people around the world. While the advocate would only get to participate in proceedings at the judges' discretion, judges would need to report how often they decide not to appoint an advocate in important cases.
Now for the bad news: The bill still isn't perfect.
Improvements need to be made to further narrow the definition of SST, provide strict time frames for destroying all data on innocent people, eliminate loopholes that could be exploited to avoid disclosing relevant information in FISC opinions, and grant the special advocate greater authority to proactively participate in intelligence court proceedings.
The bill also focuses entirely on Section 215; it doesn't even touch the abuses occurring under Section 702, Executive Order 12333, or other authorities. In other words, we're running a marathon and this bill only gets us to mile five.
So what comes next?
The Senate needs to schedule a vote on the bill, and, hopefully, it will emerge from the chamber unscathed. Then either the House and Senate come to an agreement reconciling the different versions of the bill, or the House decides to vote on the Senate version of the bill.
Finally, if all the stars align, and the president signs a bill that provides real reform, millions of records that would have been vacuumed up under existing law will remain safe from government collection.
And then Congress can start work on the next NSA reform bill.
Learn more about government surveillance and other civil liberties issues: Sign up for breaking news alerts, , and .
Learn More About the Issues on This Page
-
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.