In a pair of stories this past weekend, the and reported on the construction of an ambitious surveillance system by which the government aims to carry out detailed surveillance of its own employees.
Great, you say, our government security establishment is taking some strong steps to carry out their highest mission: protecting and defending the Constitution against the kind of unconstitutional spying that these agencies’ sweeping surveillance powers make all too easy. By monitoring and recording the actions of agency employees at every level, such a system can protect Americans by serving as the Intel Community version of police body cameras. It can serve to “watch the watchers.”
Hahaha.
In fact, the driving concern behind this system seems to be not to protect the public but to protect the agencies against whistleblowers and leakers who threaten to embarrass these organizations and undermine the shield of secrecy that they use to expand their powers without having to undergo “damaging public debate” and other threats to their independent autonomy.
This is fully consistent with what I have been arguing is the best way to think of our intelligence establishment: as a giant mindless machine that is programmed to, above all, protect itself. The Snowden (and Manning) revelations have been a body blow to the machine, undermining its secret, autonomous ability to continue marching toward its goal: collection of every communication that takes place on the planet.
Now we see the machine is moving to defend itself.
The solution for the machine? In typical bureaucratic, control-it-all fashion, it’s a vision of automated constant monitoring and judging of employees. The AP describes a program under development called the “Automated Continuous Evaluation System,” which would draw on “six or seven data streams” to engage in the “continuous monitoring” of employees. It would draw on sources including private credit agencies, law enforcement databases, government records, and social media. The Washington Post piece similarly looks at products being peddled by major defense contractors that will ostensibly flag “high risk” workers through strategies ranging from total keystroke logging to social media monitoring to “sentiment analysis.”
I have about the of some of these efforts, in particular DARPA’s ADAMS system, which aims at detecting when an employee’s mental health declines by scanning massive amounts of internal email and other data. Development of this program is still in .
These efforts seem to comingle the goal of stopping leakers with the idea that the next office shooter can somehow be identified ahead of time through email. The latter is silly, while the former threatens one of the few remaining checks and balances on our secret security agencies: the existence within those agencies of idealistic Americans willing to sacrifice their careers and more to blow the whistle when they see unconstitutional behavior.
All that said, there is a genuine potential for these kinds of tools to actually be properly deployed in such a way as to help protect the public against the internal misuse of very powerful surveillance powers.
Recall the following that Edward Snowden made to the journalists Laura Poitras and Glenn Greenwald in June 2013 in Hong Kong:
Any [NSA] analyst at any time can target anyone, any select or anywhere. Where those communications will be picked up depends on the range of the sensor networks and the authorities that that analyst is empowered with. Not all analysts have the ability to target everything. But I, sitting at my desk, certainly had the authorities to wiretap anyone—from you, or your accountant, to a federal judge, to even the President if I had a personal email.
This was one of the statements that Snowden made at the time that was most widely challenged by government officials and other NSA defenders. However, in his to a committee of the EU Parliament earlier this month, Snowden reiterated the point:
The NSA granted me the authority to monitor communications world-wide using its mass surveillance systems, including within the United States. I have personally targeted individuals using these systems under both ... Executive Order 12333 and the US Congress' FAA 702. I know the good and the bad of these systems, and what they can and cannot do, and I am telling you that without getting out of my chair, I could have read the private communications of any member of this committee, as well as any ordinary citizen. I swear under penalty of perjury that this is true.
Even for those who for some reason find the official protestations of the NSA on this matter more credible than Snowden’s first-hand testimony, it is undoubtedly the case that the NSA has enormous powers of surveillance at its disposal, that as a technological matter those powers can be targeted at U.S. citizens, and that the agency does not appear to have very tight controls on how its tens of thousands of employees can use them.
For us the bottom line is this:
- We would like to see systems of internal auditing and tracking that are strictly aimed at protecting the American people from abuses. Those audits should be immutable, and should be available to independent oversight bodies such as the PCLOB.
- These systems should be in effect at the highest levels of the agencies. In the Cold War FBI, they should have covered J. Edgar Hoover. (I’ve gotten demos of computer surveillance programs aimed at the corporate market that include a functionality allowing top executives to exempt their own online behavior from being recorded—a reminder of the hypocrisy of power, and the need to counteract it.)
- Intrusive systems should be deployed in proportion to an employee’s power to invade privacy. The AP quotes one official as saying that a monitoring system would “extend across the executive branch,” but there’s no reason to apply this level of monitoring to the Department of the Interior or Housing and Urban Development. Intrusive monitoring should not be applied to those who do not have access to very intrusive tools themselves.
- These systems should not monitor anyone’s activities outside of work.
In the end, as I often point out in the video surveillance context, we don’t want the government spying on its citizens, but we do want citizens to have the ability to monitor their government. Like police body cameras, we would like to see surveillance machinery deployed only in the service of ensuring that no employees abuse the wildly intrusive capabilities of the national security state.
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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.