This piece originally ran at the .
“You are the firefighters,” National Security Agency whistleblower Edward Snowden, during at the SXSW festival. “The people in Austin are the ones who can protect our rights through technical standards.”
Ed’s comments were a call to arms for the tech community to protect its users from indiscriminate mass surveillance by the NSA and the insecurity it creates. Despite the talk from Washington DC regarding – and you’ll hear more of it today for the would-be next head of the NSA – it is now clear that the NSA’s mass surveillance efforts are not meant for good. Whether it’s systematically global encryption standards, communications companies’ servers and data links or so-called zero-day vulnerabilities, the nation’s cyberspies are focused on attacking online privacy and weakening the security of systems that we all trust.
Forget all the government rhetoric on cybersecurity: the NSA simply isn’t here to make the Internet more secure. But that doesn’t mean the agency has to win. The global tech community can fight back, if developers ramp up efforts to build privacy and security into their products. By zeroing in on practical steps Ed and I discussed in our conversation here, we can build a more open, free and secure Internet.
Unfortunately, for far too long, security has been an afterthought. Even for a lot of my fellow geeks here at SXSW.
Until recently, many of the free email and social networking services used by consumers failed to integrate the most basic of encryption technology. That made the NSA’s job far too easy, so the real challenge for the NSA often became processing all of the intercepted communications data, rather than grabbing it in the first place.
Right now, the most widely used communications tools and services – the ones we use to do business, have fun and connect with those we love – fail to deliver the reasonable and realizable trifecta of privacy, security and simplicity. As a result, people are forced to choose between technology that’s incredibly intuitive but fundamentally weak on privacy (such as Google’s Chrome browser and Android operating systems) and technology (like PGP email encryption and Tor) that remains far too difficult for the average person to use … even if those tools do a much better job of protecting private data.
Nine months after Snowden’s documents leaked in these pages, though, the standards and practices of everyday security are truly beginning to change. Over the past few years, and even more so after Ed’s revelations, Silicon Valley companies to enable – by default – basic security features, such as the use of HTTPS encryption to protect data as it is transmitted from their customers’ to the companies’ servers. While HTTPS encryption by default is a great start, isn’t enough. The tech companies must offer apps and services that are safe and secure by default.
1. Disable data, all the way
Far too often, security is an opt-in feature that few regular people will even know about, much less seek out and enable.
In addition, big tech companies need to embrace end-to-end encryption technology. That is, they need to lock their products down, so they won’t be able to see their customers’ data. This kind of encryption technology, if deployed by several major service providers, will significantly thwart the ability of intelligence agencies, in the US and elsewhere, to engage in bulk surveillance. The more communications and data are encrypted, the less tenable mass surveillance becomes.
It comes down to simple economics, really: if the NSA has to spend more time finding a way to break or otherwise circumvent encrypted communications, it will be forced to do what it should have done all along – use its extraordinary powers on high-value targets, rather than the hundreds of millions of innocent people currently subject to NSA surveillance. If you question the power of encryption, consider this: the US government still doesn’t know what documents Ed took, because he encrypted everything.
2. Limit collection, move up storage deadlines
As Ed stressed, tech companies can also begin to limit the data they collect from their customers and only store it for as long as it’s needed for genuine business purposes – and not one second longer. The impact of the government’s ability from companies like Google and Facebook is amplified because these tech companies collect and store everything. If the companies don’t have the data that the US government and other governments are seeking, they cannot be legally compelled to hand over what no longer exists or never existed in the first place.
The problem, however, is a fundamental conflict of interest between the business model of so many tech giants – the collection, storage and monetization of your data – and your privacy and security.
This is where the average Internet user can make a difference. Right now, the digital services on which we all rely for swift communications and easy web browsing are largely reliant on advertising dollars. They sell the data you generate to third parties, or use it to deliver targeted advertisements for those third parties. Entire businesses are devoted to collecting, analyzing and then monetizing whatever data you produce. As a result, the apps, operating systems and services they provide us are optimized for one major thing: the collection of our private data.
3. Rethink our relationship with tech companies
We, the everyday consumers, must make privacy and security profitable. If we want these companies to put our interests first, we must pay for the services that they provide us. We must demand that those products preserve privacy – again, by default. Until this business model changes, the services that are made for the mass market will remain insecure, vulnerable and optimized for data collection.
By making it harder for the NSA to engage in mass surveillance, we force the agency to target the communications and devices of people genuinely suspected of wrongdoing without compromising the privacy rights of everyone else. I cannot stress enough what I said yesterday: the goal here isn’t to blind the NSA. The goal here is to make sure they cannot spy on innocent people, in bulk. Starting right now.
It’s been said that the geeks shall inherit the Earth. If that’s true, it’s also our responsibility to secure it. One of our own, Edward Snowden, started this revolution. Now it’s time we finished it by using our skills and knowledge to preserve our privacy and civil liberties, not just the bottom line.
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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.