The Six Key Questions for the Obama Administration and Companies About Yahoo’s Cooperation With the NSA
Since the Snowden disclosures, it has been clear that the NSA conducts unconstitutional, dragnet surveillance of Americans’ international communications. However, it now appears that the NSA is using surveillance authorities to conduct an entirely new type of surveillance: requiring major companies to conduct mass e-mail wiretaps, which involve searching the content of all incoming traffic.
If the news stories that broke are accurate, here’s what we know:
Last year, Yahoo, in response to a classified government order, scanned hundreds of millions of mail accounts for a “set of characters” or digital “signature” of a communications method purportedly used by a state-sponsored terrorist organization. The search was apparently performed on all messages as they arrived at Yahoo’s servers. All of this was done without input from Yahoo’s security team, potentially placing users’ security at risk and ultimately prompting the resignation of the company’s chief security information officer.
It appears that a secret court, the Foreign Intelligence Surveillance Court (FISC), approved the surveillance—or at least approved the general procedures the government used to identify its targets. There are conflicting reports on what authority the government relied on.
Unfortunately, the news stories and Yahoo’s cryptic leave more questions than answers. Yahoo’s ability to disclose information about this classified government program may be limited. But the Obama Administration owes the public far more information about this spying program, especially if it is going to fulfill its promise of increased transparency. As a start, the Obama Administration and other major tech companies should publicly answer the following questions:
1. What authority did the government rely on in compelling Yahoo to search its customers’ emails?
The million-dollar question – which remains unanswered – is what legal authority the government relied on for its demand to Yahoo. Initial reports suggested that the government may have relied on Section 702 of the Foreign Intelligence Surveillance Act (FISA), a highly controversial provision enacted as an amendment to FISA in 2008. More recently, however, news reports have stated that the government obtained what is known as a “traditional” FISA order under Title I of the statute. In either scenario, the surveillance would reflect a dramatic shift in the public understanding of how these authorities are used. Title I authorizes the government to search the communications of a particular person or entity. But, if news reports are accurate, it would mean that the government is now using this law to require that companies scan the content of all users’ incoming emails.
2. What is the program’s legal justification and has it been reviewed?
Whether government is relying on Section 702 or Title I, it seems to have strayed far from the original congressional intent. What is the government’s legal justification for this type of surveillance? And, if the surveillance was authorized by the FISC, was the court aware that its order required Yahoo to search the emails of hundreds of millions of innocent users?
In the past, the government and FISC have engaged in legal gymnastics to justify mass surveillance. The public and Congress have the right to know if this is happening yet again. The Obama Administration should release all legal memoranda it relied on in conducting the Yahoo surveillance, and it should disclose any relevant FISC opinions regarding the surveillance. If no such FISC opinions exist then the public deserves to know, as that itself is cause for concern.
3. What types of content searches does the government believe it has the authority to conduct under Title I and Section 702, and are past statements about these authorities still accurate?
Intelligence officials have argued that surveillance programs conducted on U.S. soil are narrowly targeted because the government searches only for specific communication identifiers (like an email address) and not for keywords (like “bomb”). But the Yahoo story suggests that even this limitation may be falling to the wayside. If Yahoo conducted a broad search of its users’ incoming email for a “set of characters” or digital “signature,” that information may have been found in the content of communications. In other words, individuals may have been targeted not based on any preexisting suspicion about who they are or who they communicate with, but based solely on what they were communicating. Moreover, it is unclear whether this “signature” was used only by the target organization, or also by other wholly unaffiliated individuals. If the intelligence community is now engaging in this type of content-based surveillance, then the Obama Administration has a responsibility to set the record straight.
4. If the government relied on Section 702, did Yahoo attempt to filter out purely domestic communications?
Section 702 does not authorize the government to collect or search purely domestic communications. However, the stories contain no details about whether Yahoo made efforts to filter out purely domestic communications, and if so, how successful those efforts were. If such efforts were not made and the surveillance occurred under Section 702, then the Obama Administration should immediately disclose the number of purely domestic communications that were collected and searched under the order so that the public can fully assess the privacy implications.
5. If the government relied on Section 702, did the Privacy and Civil Liberties Board (PCLOB) know about this type of surveillance when they conducted their ?
In 2014, the Privacy and Civil Liberties Board issued a report on Section 702. While we disagreed with many of the report’s conclusions, there is no doubt that the PCLOB declassified important information about Section 702 to facilitate a more robust debate. However, the PCLOB’s public report makes no mention of the types of demands that were purportedly received by Yahoo. If the PCLOB was unaware that this surveillance was occurring under Section 702, why were they not informed? If they knew, why was this information withheld from the public? Either way, this further calls into question the conclusions in the PCLOB report and the adequacy of existing oversight mechanisms.
6. How are other major companies interpreting their obligations under Section 702 and Title I?
Major companies like Google have issued statements saying they have never received the types of demands described in the Yahoo stories and reaffirming that they would challenge such a demand. While we applaud these companies for their statements, more information is needed to fully understand how the government is using its surveillance authorities. Specifically, we urge major technology companies to make publicly available information on how they interpret Section 702 and Title I, and to describe the types of demands that they believe clearly fall outside the statutes’ purview. In this way, companies can help to fill the information abyss left by the Yahoo story and the intelligence community’s lack of transparency.
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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.