The Bay Area Rapid Transit System (“BART,” for short) has a serious public relations problem. BART Police have been involved in of BART passengers in the past three years, including the incident in 2009, in which an unarmed African-American New Year’s Eve reveler was shot in the back while lying face-down on a BART platform by a white police officer who later testified that he meant to use his taser, not his pistol. The shooting, and the controversial verdict in the criminal trial of the BART police officer, spurred widespread protests.
Not long after the criminal verdict was announced, in July 2011, BART officers shot Charles Hill, an intoxicated homeless man armed with a bottle and two knives. System administrators feared widespread public protests throughout the system (the of passengers that spontaneously formed on the platform after the shooting was a good indication of the public mood). Those fears were certainly warranted. Protests happened regularly throughout the following summer.
But on August 11, 2011, however, BART took an . Under orders from BART police, the system shut down underground wireless service for three hours. The interruption covered stations in downtown San Francisco. In a statement, administrators “organizers planning to disrupt BART service . . . us[ing] mobile devices to coordinate their disruptive activities and communicate about the location and number of BART Police” as the rationale behind the move. As one would expect, criticism mounted against BART. Many of course noted the similarities to the communications disruptions in the protests.
While the BART system issued a —after consultation with the ACLU’s Northern California affiliate—that would limit shutdowns to true public safety emergencies, the issue remains a hot topic on the national stage. In March 2012, the Federal Communications Commission requested from the public on, among other things, the constitutionality and legality of service interruptions. We at the ACLU’s Washington Legislative Office and the ACLU of Northern California were happy to oblige with comments submitted late yesterday.
It probably shouldn’t come as a surprise that a government-imposed termination of your wireless service—for whatever reason—raises serious constitutional issues. And the reason is simple: when the government shuts down service, it affects everyone, including lots and lots of people who aren’t doing anything wrong.
From a constitutional perspective, a government-imposed wireless interruption raises three distinct problems.
1) A law permitting the government to shut off a network (or a significant portion of a network) is Laws that interfere with too much lawful speech in service of their primary mission (take, for instance, an anti-protest law banning all music in a public park) are invalid under the First Amendment.
2) A shutdown is a quintessential “.” That is, it prohibits speech before it happens out of fear that something bad might happen. This the government also cannot do. Additionally, a shutdown physically interferes with speech unlike “legal” prior restraints (like licensing) where the “speaker” can still “speak” and risk punishment after the fact.
3) A cell service shutdown also raises constitutional issues to the extent that it discriminates against people not just because of what they are saying (a “content-based” restriction), but because of which side they take on an issue (“viewpoint-based” restrictions). (An example of a “content-based” restriction would be, for instance, a ban on communications mentioning the BART Police, pro or con.) ”Content-based” restrictions are rarely permissible and “viewpoint-based” restrictions are never allowed. To the extent a cell service interruption is based on the government’s disagreement with the viewpoint of a particular protest, it would be totally verboten.
Now, the FCC also requested comment on the more troublesome question of when the cell phone itself poses a possible physical danger to the public—where, for instance, there is specific and credible reason to believe that it will be used to detonate a bomb. Although the scenario still raises constitutional concerns (especially where a significant amount of “innocent” phones are shut off as well), this is one of the few instances where a “prior restraint” on speech may be appropriate. Nevertheless, as highlighted in our comments, the police should act only on sufficient and compelling evidence of an imminent and likely threat. If the police have to shut off an entire network to get at one phone, it seems unlikely they would have met this standard.
In any event, though not perfect, the revised BART policy should at least prevent shutdowns targeted at lawful speech and public assembly. BART’s Board has basically admitted that under its current policy, the August 2011 shutdown would never have happened. Unlike crowd control or riot police, cell phone terminations totally shut off all speech (including both voice communications and, of course, tweeting, Facebook posting or checking email). For its part, the FCC should be commended for raising the issue, and for specifically requesting public comment on the constitutional dimension of the problem.
For your reading pleasure, the ACLU’s comments can be found here.
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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.