Originally posted at .
Next month, President-elect Trump will be handed the keys to the NSA’s vast spying apparatus. As a candidate, he supported of Americans’ phone calls, called for on American Muslims, and even invited Russia to of his political opponent. With these threats to privacy and liberty on the horizon, our courts will likely be more important than ever as a bulwark against unlawful spying.
One of the courtroom battles that will shape President-elect Trump’s spying powers is already underway.
On Thursday, the Fourth Circuit Court of Appeals will hear oral argument in Wikimedia v. NSA, our case challenging “Upstream” surveillance. First revealed by whistleblower Edward Snowden in June 2013, Upstream surveillance involves the NSA’s bulk searching of Americans’ international internet communications with the assistance of companies like AT&T and Verizon. If you email friends abroad, chat with family members overseas, or browse websites hosted outside of the United States, the NSA has almost certainly searched through the contents of your communications — and it has done so without a warrant.
Upstream surveillance takes place in the internet “backbone” — the network of high-capacity cables, switches, and routers that carries Americans’ domestic and international internet communications. The NSA has installed surveillance equipment at dozens of points along the internet backbone, allowing the government to copy and then search the contents of vast quantities of internet traffic as it flows past.
The government claims that Upstream surveillance is authorized by Section 702 of the Foreign Intelligence Surveillance Act. That law allows the NSA to engage in warrantless surveillance of Americans when they are communicating with so-called “targets” abroad. But these targets can be virtually any foreigner overseas — including people who are not accused of any wrongdoing whatsoever, like journalists, lawyers, and human rights researchers. No judge signs off on the government’s individual targets. Instead, the NSA secretly vacuums up millions of communications under a single court order each year.
One of the most glaring problems with Upstream surveillance is that it is not targeted at all — at least not in any ordinary sense of the word. Instead, the government is systematically examining online communications in bulk, scanning their full contents to see which ones merely mention its targets.
Because of how it operates, Upstream surveillance represents a new surveillance paradigm, one in which computers constantly scan our communications for information of interest to the government. To use a non-digital analogy: It’s as if the NSA sent agents to the U.S. Postal Service’s major processing centers to conduct continuous searches of everyone’s international mail. The agents would open, copy, and read each letter, and would keep a copy of any letter that mentioned specific items of interest — despite the fact that the government had no reason to suspect the letter’s sender or recipient beforehand.
The ACLU brought this lawsuit on behalf of a coalition of legal, media, educational, and human rights organizations, including the Wikimedia Foundation (which runs Wikipedia), Amnesty International USA, The Nation magazine, PEN American Center, Human Rights Watch, the Rutherford Institute, the National Association of Criminal Defense Lawyers, Global Fund for Women, and the Washington Office on Latin America.
Each of these nine plaintiffs has been deeply affected by U.S. government spying. The confidentiality of plaintiffs’ international communications is essential to their work, and Upstream surveillance undermines their ability to ensure that these communications — with colleagues, journalists, witnesses, foreign government officials, victims of human rights abuses, and the tens of millions of people who read and edit Wikipedia — are indeed private. This spying violates our clients’ constitutional rights to privacy, freedom of expression, and freedom of association.
Last year, a federal district court in Maryland dismissed our suit, wrongly concluding that our clients lack standing to challenge Upstream surveillance because they had not “plausibly” alleged that their communications are intercepted. Without standing, our plaintiffs can’t have their day in court to challenge this spying on the merits.
However, as we explained in our appeal briefs, it’s more than plausible that our clients’ communications are intercepted: the government’s own disclosures about Upstream surveillance, along with media reports, show that the NSA is vacuuming up and reviewing almost all text-based communications that enter and leave the country.
Wikimedia alone engages in over a trillion internet communications each year, with individuals located in virtually every country on earth. Given the volume and geographic distribution of these communications, it’s indisputable that plaintiffs’ communications are ensnared by the NSA.
We hope that the Fourth Circuit agrees. With President-elect Trump about to take over, there’s simply too much at stake for the judiciary to close the courthouse doors on those harmed by mass surveillance.
Check Out the Full Comic Explaining What the NSA Is Doing and Why It Matters
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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.