Last March, I started working as a technologist for the ACLU's Speech, Privacy, and Technology project. Part of the job is helping the ACLU’s lawyers to better understand the technical details of their legal work. But I'm also taking the fight for civil liberties to obscure (to most people) standards bodies that are writing the rules for the technologies we will all use in the next few decades. These groups include the and the , where I work on an alphabet soup of security protocols with names such as , , , , , and others.
Why is a civil liberties group paying someone to work to shape the technical standards for our next generation communications technology and infrastructure? The answer is that as more and more of our lives move online, secure communications and other rights-preserving tools are a fundamental requirement for free expression, free association, privacy, and a functioning free press. The civil liberties that the ACLU has long fought to protect require strong encryption and other privacy enabling technologies to exist in a digital age.
I like to make an analogy to urban design: when you plan a street, or a building, you make a lot of choices that influence what can happen in that space for years to come. Will there be parking for cars? A bike path? Trees? One-way or two-way traffic? Speed bumps or roundabouts? Each design choice has an effect on how people will lead their lives for decades to come.
Not just the design choices, but also the quality of the implementation of these choices also has an effect. For example, curb cuts can make a street accessible for people in wheelchairs, but if the slope is wrong, or there is bad drainage, accessibility can suffer.
In the same way, as our society moves further and further online, the design choices made in the underlying communications technology infrastructure can critically shape what kinds of society are possible. These choices are governed by similar planning and implementation work. For example:
- Will it be possible to communicate confidentially with your doctor, your business partner, your mate, or your friend?
- Will you know for sure who you are talking to?
- Can you be confident that no one else is listening?
- Can you try on new identities as you grow and change, or will you have one single "face" that you must present for all your communications and that will follow you for your entire life?
- What assurances do you have that when you send someone a message, they will actually get it, and it will not be tampered with along the way?
- Who else gets to know who you communicated with?
- What authorities are you willing to trust with your data or your identity?
- Do you get a choice of authorities, or is it decided for you?
- What recourse do you have if these authorities misbehave?
These design decisions are often "baked in" to the communications tools we use, and they can shape our lives in ways we don't expect, including in ways that infringe on some of the most fundamental human rights: how we express ourselves, who we communicate with, and how we grow as people.
If your goal is to reduce speeding and noise while promoting foot traffic, you can do it through regulation and the courts—with lowered speed limits—or you can build narrow roads with broad sidewalks, speedbumps and roundabouts, which shape traffic to achieve the desired effect. Most effectively, you can do both. If your goal is to make sure that people can get from one place to another as fast as possible while staying safe, you can go the other direction and use regulation and the courts to raise speed limits and limit road access to fast vehicles, and you can build expressways with guard rails and physical safety mechanisms. Again, to be most effective, you will do both.
So while I work with ACLU lawyers and lobbyists who aim to reform the laws and their interpretation by the courts—the "speed limit" side of things—my job is also to push on the engineering side to make sure we can meet our goals as a society.
How do we shape communications infrastructure at this level? To pursue this engineering challenge of protecting civil liberties through technical protections built into our communications infrastructure, I follow two main approaches:
- Defining standards and protocols that have civil liberties and human rights capabilities "baked in."
- Writing code to implement these mechanisms and ensuring that it is easy for people to safely deploy.
To make this work on a network as sprawling and heterogeneous as the internet, our underlying tool is strong mathematics. As Ed Snowden , "the bottom line is that encryption does work."
The importance of protocols and standards
But strong mathematics (encryption and other cryptographic tools) aren't enough—for our machines to talk to each other over today's networks, they need to know the "rules of the road." These conventions and practices are the protocols that our machinery uses to communicate. The process of writing down and clarifying exactly how these protocols work is "standardization." One of the great advances of the internet was that people published the protocols their machines were using to communicate so that different machines could talk to each other.
The work that goes into protocol standardization is a design process: some aspects of the protocol are traded off against others to come to a design that everyone can agree on. Reaching broad agreement is important: if you are the only party who speaks a given protocol, that's not very useful!
Sometimes finding the right answers to the choices that appear in the design process are easy: if variant A of a proposed protocol is both computationally cheaper than variant B and where variant B is not, we should choose variant A. Other times, the tradeoffs can be difficult: are we willing to leak our own identities long-term to the communications partner in exchange for having a faster connection?
The work (mostly within the and the ) involves not only developing new protocols, but also finding flaws in existing widely used protocols, and figuring out fixes for those flaws that can be deployed. I also work on identifying unfixable protocols, and making sure that people stop using them.
The importance of well-designed software
In addition to protocol development work, I work on deployable that implements information-security and rights-preserving protocols. The best protocol designs are of no use if there aren't implementations that pay careful attention to detail and provide easy and sensible interfaces for the people and tools that use them. Most of the software packages that I contribute to are backend stuff like , , and , which aren’t seen by end-users, but are used by many of the apps and services that we all rely on. These cryptographic software libraries provide functionality and features for secure communication that other software can make use of. Those other “higher-level” programs are the ones that users typically use directly.
By ensuring that rights-preserving tools are easily available on platforms that respect user freedoms, we're shaping the communications environment in defense of free speech, privacy, and free association. I'll be sharing more details about this work in future blog posts, and I'm happy to hear feedback and suggestions about things in this space that need attention. We can help build a society that is both more safe and more free by developing not only the laws, but also the infrastructure necessary for the task.
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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.