By a 67-32 margin Tuesday, Congress passed the USA Freedom Act — a significant milestone in our efforts to rein in NSA surveillance. The bill marks the first time since passage of the Foreign Intelligence Surveillance Act in 1978 that Congress has taken steps to restrict — rather than expand — the government’s surveillance authority.
To be clear, the bill that passed yesterday is not as strong as we wanted. It is markedly weaker than the original version of the USA Freedom Act that the ACLU first supported in 2013, which itself left many serious surveillance abuses untouched. And while the ACLU was neutral on the version of USA Freedom that ultimately passed, we were a vocal critic of its shortcomings and supported a sunset of the provisions in an effort to advance more comprehensive reform.
Notwithstanding this, however, it is very clear that the USA Freedom Act is a historic step forward.
On the road to its passage, pro-reform advocates beat back efforts led by Senate Majority Leader Mitch McConnell (R-Ky.) to simply extend expiring Patriot Act provisions. A week before the scheduled expiration, he failed to garner enough support for even a one-day extension. Opposition came from many within his own party, with senator after senator taking the floor in support of reforming surveillance laws.
When gridlock resulted in a temporary sunset of the provisions, a majority of the Senate again refused to accede to efforts to water down the USA Freedom Act or extend the provisions.
Such defeats would have been unthinkable just a couple of years ago. They demonstrate that the post-9/11 panic, in which members of Congress and the public were willing to sacrifice civil liberties in the face of nebulous national security claims, is fading.
Rep. John Conyers (D-Wis.) and Sens. Patrick Leahy (D-Vt.) and Ron Wyden (D-Ore.), who were once lone voices expressing concern over the Patriot Act, have now been joined by a broad coalition, including Rep. Jim Sensenbrenner (R-Ill.) and Sens. Mike Lee (R-Utah) and Al Franken (D-Minn.), among others. For nearly two years, this coalition crafted and shepherded the USA Freedom Act through Congress, ignoring the calls to abandon surveillance reform in the face of ever more heated national security rhetoric around ISIS.
At the same time, a new technologically savvy generation is that unchecked intelligence agencies threaten technological progress, the economy, and the global free flow of ideas. They are overwhelmingly supportive of a new era in which intelligence practices comport with America’s democratic values.
The USA Freedom Act, we hope, is only the beginning of this new era. The coalition that helped to advance the USA Freedom Act must now work to advance additional reforms. This includes:
- Urging both the president and Congress to rein in surveillance under Executive Order 12333, which has been used to collect information about millions of Americans absent any judicial process
- Reforming Section 702 of the Foreign Intelligence Surveillance Act (set to expire in 2017), which allows the government to collect the content of Americans’ communications with individuals abroad
- Reforming other authorities, such as the administrative subpoena statutes, which have been used for bulk collection in the past
- Further reforming the authorities addressed in the USA Freedom Act, including Section 215, FISA’s pen-register and trap-and-trace provisions, and national security letters
- Rejecting efforts to expand surveillance through cybersecurity information-sharing legislation.
In the 24 hours since the USA Freedom was signed into law, efforts to advance some of these reforms have already begun. Just last night, two amendments to the Commerce, Justice, and Science Appropriations bill overwhelmingly passed the House. One, introduced by Rep. Jared Polis (D-Colo.), would reform a Justice Department administrative subpoena statute to limit bulk collection. The second — advanced by Reps. Ted Poe (R-Texas), Zoe Lofgren (D-Lofgren), Thomas Massie (R-Ky.), Justin Amash (R-Mich.), and others —would prohibit the DOJ from using funds to mandate or request that companies build “backdoors,” or security weaknesses, into their products to facilitate government surveillance.
While both of these amendments still need to be considered by the Senate, they show that many in Congress are not content with only the modest reforms in the USA Freedom Act. They want more. And so do we.
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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.