It’s been just over a month since Donald J. Trump assumed the enormous powers of the U.S. presidency, including the power to control the government’s far-reaching surveillance of Americans and others. As we’ve explained elsewhere, President Trump will wield extremely broad and unconstitutional surveillance powers, with the world’s most sophisticated technological tools at his disposal. Based on his past statements and conduct, we have to be that he will misuse this sprawling spying apparatus.
One of these spying authorities — Section 702 of the Foreign Intelligence Surveillance Act — is set to expire at the end of this year, and Congress has already begun holding hearings that highlight much-needed reforms. The government uses Section 702 to examine the full contents of Americans’ international emails, web-browsing, and phone calls — all without ever getting a warrant. This surveillance violates our core rights to privacy, freedom of expression, and freedom of association guaranteed by the First and Fourth Amendments.
Not only does Section 702 give the government access to sensitive online communications, but this surveillance also sweeps incredibly broadly, capturing vast quantities of Americans’ personal data. With the assistance of companies like Facebook, Google, AT&T, and Verizon, the government relies on Section 702 to carry out on U.S. soil, including both the “PRISM” and “” programs revealed by the whistleblower Edward Snowden. While the ACLU has long objected to this large-scale, warrantless spying, with President Trump now at the helm of the surveillance state, the stakes couldn’t be higher. Congress must fundamentally reform this law.
To fight alongside us in demanding reform, here’s what you need to know about Section 702:
Section 702 Permits the Government to “Target” Completely Innocent People
Section 702 permits the NSA, FBI, and CIA to spy on communications without a warrant when two primary conditions are met. First, the “target” of the surveillance must be a foreigner located abroad. And second, a significant purpose of the surveillance must be to gather “foreign intelligence information.”
Neither of these conditions imposes a meaningful constraint on the government’s ability to spy. Almost anyone abroad could be an eligible target. Indeed, Section 702 does not require the government to make any finding — let alone demonstrate probable cause to a judge — that its surveillance targets are agents of a foreign power, engaged in criminal activity, or even remotely associated with terrorism. (Instead, judges on a secret intelligence court approve only the general procedures that government analysts are supposed to follow.) In addition, the law defines the term “foreign intelligence” broadly — so broadly that the surveillance could readily include communications by journalists, human rights workers, whistleblowers, and virtually anyone else talking about foreign affairs. As a result, low-level NSA analysts have tremendous discretion in selecting whom to target.
In other words, under Section 702, the government may target people who are not suspected of any wrongdoing whatsoever. Given how few constraints apply, it’s hardly surprising that at last count the NSA was using this law to surveil almost 100,000 people, organizations, and groups. Americans who call or email with these thousands of targets — whether they are family members, friends, or colleagues — have their communications swept up too.
The Government Uses Section 702 to Conduct Bulk Searches of Our Online Communications
One other crucial feature of this surveillance was hidden from the public for years and goes far beyond what the statute permits: The government is using Section 702 to engage in bulk searches of Americans’ online communications.
Under the “Upstream” program revealed by Snowden, the government is searching the contents of international internet communications in real-time, looking for references to its many targets. (This is sometimes called “about” surveillance, because it involves combing through the full text of communications in search of those that are merely about a target.) With the compelled assistance of companies like and , the NSA has installed surveillance equipment at dozens of points along the internet “backbone,” the network of high-capacity cables, switches, and routers that carry your email, web browsing, and other internet communications. The NSA systematically copies and searches the contents of substantially all the international communications flowing past those surveillance devices.
This is precisely the kind of general search that the Fourth Amendment was intended to prohibit. While the government often claims this surveillance is “targeted,” it’s playing word games. The NSA effectively opens and reads international communications to and from everyone, in search of those that mention, for instance, a target’s email address or phone number. That’s essentially like opening every letter that passes through the mail in search of a particular name. There’s nothing “targeted” about a surveillance program that subjects millions of Americans to suspicionless government searches of their communications.
The Government Uses Section 702 to Investigate Americans
The government justifies warrantless Section 702 surveillance on the theory that this spying is directed at foreigners — but, once the information is collected, the government routinely trains its sights on Americans instead. The government stores hundreds of millions of communications collected under Section 702 in NSA, CIA, and FBI databases. Then, relying on what’s known as the “backdoor search” loophole, analysts use Americans’ names and other identifying information to retrieve and examine individuals’ private communications. The government employs this technique in ordinary criminal investigations and trials that are unrelated to national security, even though the communications were collected without a warrant. In short, the backdoor search loophole functions as an end-run around the Fourth Amendment.
In the coming year, Congress can and must remedy each of these profound problems with Section 702 spying. While the ACLU is currently challenging this surveillance in civil and criminal cases, we’re also fighting for reform in the legislative branch, and we’ll need your help. Sign up for today, so that you can easily contact your legislators as they consider how to rein in President Trump’s NSA.
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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.