In a landmark decision this month, the European Court of Human Rights that one of the mass surveillance programs revealed by Edward Snowden violates the rights to privacy and freedom of expression. While the case challenges the U.K. government’s mass interception of internet traffic transiting its borders, the court’s judgment has broader implications for mass spying programs in Europe and around the world, including those operated by the U.S. National Security Agency.
The lawsuit was brought by over a dozen human rights groups and journalists from different countries. Consistent with bedrock human rights principles, the court held that the protections it articulated are not dependent on a person’s nationality or geographic location. The European Convention on Human Rights — the international human rights treaty that the court enforces — speaks in universal terms, making this ruling’s defense of privacy and freedom of expression a guidepost for the rest of the world, including the United States.
Indeed, the U.S. government operates mass interception programs analogous to the U.K. program that the court ruled against. The NSA sifts through internet traffic — including the emails, chats, and online messages of Americans — as that information flows across the internet’s physical backbone, whether inside the U.S. or at other points around the globe. Like its British counterpart, GCHQ, the NSA copies these communications and combs through them in near real-time, often using keywords to determine what to ultimately retain and discard.
The court’s ruling significantly undermines a key refrain of the U.S government: that a “search” doesn’t occur until a human reads or listens to the intercepted communications. Rather, the court explicitly recognized that the government intrudes upon our right to privacy even when it uses surveillance technology to intercept and digitally examine “a communication, even it if it is subsequently discarded in near real-time.”
The court also laid to rest the pervasive myth, perpetuated by the U.S. and U.K. governments alike, that the collection of communications “metadata” — the who, what, when, and where of our communications — is less intrusive than collecting content. For years, intelligence agencies have mined this data while downplaying how revelatory it can be. The court dismantled this narrative, explaining that “the patterns that will emerge” through metadata are “capable of painting an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with.”
This ruling is in line with recent U.S. Supreme Court decisions that have recognized the sensitivity of the digital trails we leave behind us every day, including our internet browsing histories and location information. Lower federal courts have also acknowledged just how much metadata can reveal about a person’s private life and beliefs.
The European court ruled that the way the U.K. government filters and searches intercepted communications and metadata is unlawful. Both the U.S. and U.K. governments lack meaningful oversight of how intelligence analysts select and use keywords to search through their vast troves of our communications. There is no independent or judicial approval of these keyword searches, whose broad scope inevitably captures the communications of millions of people not suspected of any wrongdoing.
Of particular concern to us is intelligence agencies’ spying on communications belonging to people who engage in sensitive work such as journalists, human rights advocates and lawyers. This concern is not hypothetical: At an earlier stage of the case, a British court determined that the U.K. government’s mass interception program had unlawfully interfered with the communications of two prominent human rights organizations — Amnesty International and the Legal Resources Centre, based in South Africa.
The court explicitly recognized the “chilling effect” that mass surveillance can have on freedom of the press. Under its mass surveillance programs, the U.S. government reviews communications between journalists and their sources without any special protection for the confidentiality that is essential for journalism.
Finally, the court’s judgment addresses one of the most overlooked but pernicious byproducts of mass surveillance programs — the of vast troves of information with other intelligence agencies. For decades, the U.S. and U.K. governments have each other nearly unfettered access to their respective intelligence databases, swapping enormous amounts of private data. The court’s judgment makes clear that safeguards applying to a government’s direct spying must apply equally to information it obtains from other countries and warns that, otherwise, “States could use intelligence sharing to circumvent stronger domestic surveillance procedures and/or any legal limits.”
Although the court’s decision focuses on the British government’s mass surveillance activities, the U.K. program surely intercepts the communications and data of Americans, who will also directly benefit from the ruling. More broadly, the ruling sends a vital message about mass spying in the digital era. All nations — including the United States — must honor their human rights obligations by providing far more robust safeguards for and free expression.
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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.