Some of the Wikileaks-fueled swirl of stories about the TrapWire program appear to have been overhyped, as my colleague Kade Crockford of the ACLU of Massachusetts in her excellent roundup of the story yesterday. Others writing about the program have .
But let’s not overcompensate for the hype and get too world-weary and cynical here; while many questions remain about this program, it does raise some very significant issues. And it does deserve a high level of attention and concern.
We do know the program combines several elements that are each deeply problematic:
• Suspicious activity reports (SARs). The rage for SARs, as we have long noted, is a misguided and dangerous attempt to spot terrorist plots by gathering and sifting through an ocean of data on ordinary everyday behavior. A George Washington University study recently concluded that the suspicious activity reporting system “has flooded fusion centers, law enforcement, and other security entities with white noise” that “complicates the intelligence process” and prevents fusion centers from being “true homeland security assets.” Given that, increasing the flood of SARs is not going to make anyone safer, but only increase the level of white noise and further hobble anti-terrorism efforts.
• Data mining. Big data certainly has its uses but spotting terrorists is not one of them, as experts have .
• The surveillance-industrial complex. , private-sector takeovers of public functions, and corporate-government cooperation against dissenters: when you marry the furious energy of capitalism with the security establishment’s bottomless appetite for tracking, it’s a recipe for trouble.
But I think the most novel issue raised by TrapWire is the program’s video surveillance component. It’s not entirely clear how the program is using video. A 2010 Stratfor leaked by Wikileaks states the following:
This week, 500 surveillance cameras were activated on the NYC subway system to focus on pre-operational terrorist surveillance. The surveillance technology is also operational on high-value targets (HVTs) in DC, Las Vegas, Los Angeles and London and is called TrapWire. . . . Operationally, the ability to identify hostile surveillance at one target set -- in multiple cities -- can be used to neutralize terror threats by interrupting the attack cycle. Meaning, a suspect conducting surveillance of the NYC subway can also be spotted by TrapWire conducting similar activity at the DC subway, connecting the infamous dots. An additional benefit of TrapWire is that the system can also be used to help "walk back the cat" after an attack to identify terrorist suspects and modus operandi. I can also see the tool being very effective in identifying general street crime.
That certainly makes it sound that video feeds from a wide variety of locations are being centrally scrutinized for “hostile” behavior, cross-referenced, and stored (to allow the post-attack investigation). If it’s claimed that the system can recognize that the same individual has appeared in different cities, it is a rational assumption that face recognition is employed, despite that technology’s generally abysmal performance in uncontrolled situations such as public spaces.
In addition, a TrapWire says the system provides a visual monitor that shows “the threat level at each facility” and highlights those where the threat level has risen “over the preceding 24 hours.” What kind of data would be used to indicate a higher threat at a given facility on an hour-by-hour basis? Such up-to-date evaluations seem like the kind of thing that would be based on video feeds.
But it is still not clear what is going on. The Stratfor descriptions aren’t necessarily accurate. As by independent journalist Ben Doernberg points out, TrapWire’s CEO denied using face recognition in 2006. Also, the New York Times a police spokesperson as denying that the NYPD uses TrapWire. (Which is strange, as Kade today, because Trapwire explicitly states on its web site that it services New York’s SARs. Overall the company itself has been strangely quiet during the uproar; if so many of the stories about this program are false, and it is not something we should worry about, it’s natural to wonder why the company hasn’t put out a statement explaining why that is so.)
What seems most likely is that “behavioral recognition” software monitors customers’ video feeds (such as subway cameras) and when it detects suspicious activity, it alerts human operators who then create a suspicious activity report.
Ultimately, we need to look beyond the details of what TrapWire does and does not do at this moment. We know that the following is true:
• Video surveillance is expanding rapidly, as cameras become cheaper and easier to install, and as local police departments increasingly begin installing their own networks of cameras.
• New IP video camera feeds are easy to network, centralize, and store.
• Behavioral recognition technology will increasingly be employed to try to manage the ever-growing volume of video data.
• Portions of our security establishment are fixated on mass surveillance as an approach to stopping terrorism (as we’ve written about often, but with special focus in this 2007 report).
• The private sector is bursting with entrepreneurs looking to sell new surveillance solutions to the government, TrapWire being just one of many in that regard. If something can be done, someone somewhere will make a pitch to do it.
• Government agencies frequently launch new surveillance efforts with minimal public notice or debate—and often (though not in this case), cloaked in official secrecy. (It’s always surprising when security agencies feel they can activate far-reaching surveillance tools without any public knowledge or debate. We’re supposed to be living in a democracy; that’s what these security agencies are supposed to be protecting—they shouldn’t be helping themselves to dramatic new powers over citizens whenever the latest technology makes that possible.)
Together, these elements are a recipe for a new kind of total surveillance that people are rightly worried about. Beyond the details, all the "hype" online over the TrapWire story is a reflection and implicit recognition that such a system is now technologically possible, and we are barreling full speed toward a surveillance society. Whatever the details of TrapWire’s current operation are, we need to grapple with that fact. That’s the biggest takeaway from the TrapWire story.
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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.