The Vast, Troubling Call Database Drug Agents Use to Identify Burner Phones
This was by .
This week the revealed the Hemisphere Project, in which the government is paying AT&T for access to an enormous phone records database. While some aspects of the program are unclear, we now know that the government has long collaborated with AT&T to conduct sophisticated data-mining of sensitive telephone records, primarily to identify “burner” phones. If anyone needed another example of the ways in which our outdated privacy laws are failing us, here it is.
If you watched , you’ll remember burner phones. To evade detection by law enforcement agents, some individuals . It turns out that, for the past several years, the government has had a way to identify those phones. But it involves assembling and searching through a truly enormous database of call records.
While people may dispose of their phones, it’s much harder for people to change their lives. If Alice calls Bob twice a day and Carol every Sunday, Alice is likely to do that even if she switches phones. By analyzing calling patterns within the database, it’s possible to identify Alice’s new phone.
To do this, the government searches through a vast database of call records for potential matches. Enter the Hemisphere Project. According to the Times, the government pays AT&T to embed its employees within anti-narcotics units, and these employees then conduct phone records searches at the government’s behest. This enables the government to obtain records from a vast AT&T database of Americans’ phone calls. The database stretches back 26 years, and 4 billion records are added every day.
In other words, to locate the tiny number of people who evade law enforcement agents by using burners, an AT&T-government partnership is sifting through sensitive phone records of vast numbers of people. While this may sometimes be justified, today it is happening without any supervision by a judge. And the government is deliberately concealing the origins of all information obtained by the program, making it impossible for criminal defendants to know that they were subjected to scrutiny though the program. As a result, defendants have no opportunity to test the legality of these investigative tactics—and, just as troublingly, no court will have the chance to weigh in on the program’s validity.
Despite the near-universal interest in understanding how this database is used (your call records are likely in this database), secrecy is the rule. A slide show describing the program instructs agents “to never refer to Hemisphere in any official document.” If agents need to use information derived from the Hemisphere Project, agents are instructed to conceal the existence of the program by seeking the same data from other sources, a controversial practice sometimes called “parallel construction.” In this way, the Hemisphere project is to be “walled off” and “protected.”
The Hemisphere Project is similar to the , in that both involve collecting vast troves of private phone records, virtually all of which are about innocent people. Especially when viewed together, the two programs highlight several serious shortcomings in the privacy protections afforded to Americans’ private, personal communications.
Current protections for Americans’ call records are inadequate. Call-detail records are sensitive. Even analysis of a single call can reveal that someone has called a domestic violence or suicide hotline. More call data can be very telling about people’s social networks, as someone called frequently is more likely to be a close friend than someone called rarely. This is not the sort of information the government should access lightly, and certainly not without the supervision of a judge.
Telecommunications companies are keeping far too many records about all of us and holding onto them for far too long. When customers sign up for AT&T, they aren’t willingly signing up for a regime of corporate—and by extension government—monitoring. Even if AT&T needs to access certain information in order to route calls, there is no good reason for it to store this information about all of us for 26 years. And if AT&T didn’t build it, the government would not come.
The same companies that keep so much information about all of us reveal too little about their own policies for storing and sharing information about us. Despite repeated requests, AT&T and other telecommunications companies have declined to supply their customers with basic information such as what types of information are stored on each of us, how long that information is kept, and what is done with it. This is the bare minimum telephone companies owe their customers. But better yet, Americans should have a right to access the raw data telecommunications companies generate about them. We know that today mobile carriers keep track of their customers’ movements—customers should be able to get a copy of the actual data these companies keep. Only by seeing our own data will it be possible to accurately gauge its sensitivity.
Programs that depend on vast databases pertaining to innocent people should be public. Operations like the Hemisphere Project should not be kept secret. When a government surveillance program is predicated on its being able to access vast databases of information pertaining to Americans, the overwhelming majority of whom are and will always be innocent of wrongdoing, these programs should be public. Law enforcement agents are sifting through data about all of us. The existence and purpose of these databases should be disclosed. The personal information of too many innocent people is at stake, and democratic principles require that we all be given an opportunity to weigh in.
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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.