The Trump Administration Is Hiding a Crucial Report on NSA Spying Practices
Despite requests from a senator and the European Union, the Trump administration is refusing to make public an important report by a federal privacy watchdog about how the U.S. government handles personal information swept up by its surveillance.
The public has a right to know what the government does with the vast troves of private data that American intelligence agencies collect in the course of their spying. On Thursday, we filed a Freedom of Information Act request demanding the release of the report, significant portions of which are unclassified.
The report is from the Privacy and Civil Liberties Oversight Board, which was created by Congress to be an independent, bipartisan agency. Its mission is to help ensure that national security laws and programs don’t infringe on individual rights. As part of that mission, the board has issued several significant addressing government surveillance. While we have not always agreed with the conclusions of these reports, they have played a vital role in the democratic process by educating the public about the powerful spying tools at the government’s disposal. In the wake of Edward Snowden’s revelations about the National Security Agency’s illegal mass surveillance programs, the board’s work informed the public debate by prompting the declassification of additional details about these secret programs.
Recognizing the board’s importance as a mechanism for transparency, Congress required that it make its reports public to the greatest extent possible. But now the Trump administration is wrongly trying to keep its findings secret.
The report we’re seeking concerns the implementation of President Obama’s on government spying and the handling of personal information, which can include emails, chats, text messages, and more. The directive recognized that “all persons have legitimate privacy interests in the handling of their personal information.” While Obama’s policy changes left much to be desired, they did include improvements, including some very modest protections for the handling of personal information of non-American citizens abroad. The directive also encouraged the Privacy and Civil Liberties Oversight Board to provide the president with a report assessing how the new policies were carried out.
In December 2016, the board its report to the White House and congressional intelligence committees. Two months later, Sen. Ron Wyden (D-Ore.) a letter to Office of the Director of National Intelligence, urging it to make public the unclassified portions of the report and to declassify the rest of it as soon as possible. European Union officials and representatives have also called for the report’s release.
In response, the Trump administration has to release any of the report, even with redactions, citing executive privilege. By shrouding the report in secrecy, the administration is depriving the public of the ability to understand how the government is applying Obama’s efforts to impose even minimal privacy safeguards on highly controversial NSA spying.
The European Union has said that the disclosure of the report is important for its annual assessment of the central U.S.-EU data-sharing agreement, known as Privacy Shield. That agreement allows American tech firms operating in Europe to easily transfer data to the United States.
Just last week, the European Parliament called for the suspension of the Privacy Shield agreement because the United States is not complying with EU law. Suspending the agreement would be devastating for Silicon Valley. One of parliament’s was Trump’s claim of “presidential privilege” over the board’s report, which likely addresses the implementation of privacy protections for Europeans.
In addition to keeping the report secret, the Trump administration appears to be undermining the Privacy and Civil Liberties Oversight Board’s proper functioning. Since February 2017, four of the board’s five positions have been vacant, preventing it from doing much of its work to investigate government overreach. Three new members have been nominated but are still awaiting Senate confirmation after many months. Even if all three were confirmed, that would leave the board imbalanced, with three Republicans and only one Democrat. In this scenario, the board’s rules require that the next member not be a Republican, but Trump has made no nomination.
Given the vacancies — and the fact that the current nominee for chair of the board is supporting — there are now serious questions regarding whether the board will act as an independent check on surveillance abuses by the executive branch in the future.
Despite questions about the future of the Privacy and Civil Liberties Oversight Board, its reports have shed much-needed light on the government’s surveillance practices. By hiding the report that we’re demanding today, the Trump administration is not only undermining the board’s purpose — it’s also undermining democratic accountability.
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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.