This post originally appeared as an editorial at .
One of the most disturbing revelations from whistleblower Edward Snowden is that the National Security Agency copies and searches the contents of virtually every text-based Internet communication that you send overseas or receive from abroad. This includes e-mails, instant messages, search-engine history and the websites you visit. The agency does so whether or not you or the person you’re communicating with has done anything wrong, and whether or not either party is a specific “target” of the NSA. Furthermore, if the agency believes your message contains information relating to the foreign affairs of the United States – in the NSA’s overly broad terms, “foreign intelligence information” – it may hold on to it indefinitely.
This massive, dragnet surveillance is a fundamental violation of the Fourth Amendment, which protects our right to privacy, and the First Amendment, which protects freedom of expression and association. The government is collecting these private communications without any individualized suspicion and without obtaining a warrant from a judicial authority. For these reasons, The Nation has joined the ACLU’s suit against the National Security Agency and the Department of Justice, filed this March in federal district court in Maryland, where the NSA is headquartered. Fellow plaintiffs include the Wikimedia Foundation, Human Rights Watch, PEN American Center, the Global Fund for Women and other civil society, legal and media organizations.
The NSA carries out this dragnet spying, known as “upstream” surveillance, by tapping directly into the Internet backbone – the network of high-capacity cables and switches that carry Americans’ communications with one another and with the rest of the world. Inside the United States, upstream surveillance is conducted under a 2008 law called the FISA Amendments Act (FAA), which allows the NSA to target the communications of foreigners abroad and to intercept Americans’ communications with those foreign targets without a warrant. There are few limits on whom the government may target under the FAA, and those limitations that do exist are weak and riddled with exceptions. Targets can include journalists, academics, government officials, human rights activists, political activists from all over the spectrum and other innocent people who are not connected in any way with terrorism or other criminal activity. Yet the NSA is exceeding even the FAA’s broad authority by spying on everyone, in order to determine who might be talking or reading “about” its targets.
Our lawsuit, Wikimedia v. NSA, is in some respects the successor to Clapper v. Amnesty International USA, a lawsuit that we and others filed in 2008 with the help of the ACLU. Clapper challenged the constitutionality of the FAA on Fourth and First Amendment grounds. In a 5-to-4 decision in February 2013, the Supreme Court accepted the government’s contention that we lacked standing to challenge the law because we could not prove we had been spied on. Snowden has said that the Clapper ruling contributed to his decision to go public with his revelations only a few months later. Thanks to these revelations, as well as government acknowledgments about upstream surveillance over the past two years, we now know far more about NSA surveillance than we did in Clapper. Most importantly, we now know that the NSA is copying and combing through nearly everyone’s international communications – not just those of its targets. This fundamentally changes the standing equation.
The NSA’s massive, dragnet surveillance directly hampers The Nation’s ability to do its business. Our editors and contributing writers routinely engage in sensitive and confidential Internet communications with people in other countries. Those contacts include foreign journalists and other analysts, foreign government officials, opposition figures – including dissidents and, sometimes, members of guerrilla and insurgency movements – academics and human rights activists. The Nation’s research and reporting depends on confidentiality and on our ability to assure contacts that their communications with us – sometimes even their identities – will not be revealed, especially since some of these communications relate to the involvement or alleged involvement of the US government, or its allies abroad, in repression or human rights abuses. Upstream surveillance by the NSA reduces the likelihood that foreign sources will share sensitive information with The Nation’s editors and writers, because they have good reason to fear that their communications will be intercepted by the US government and shared with the repressive regime they live under or with other organizations with which the US government cooperates.
As we celebrate The Nation’s 150th anniversary, we note the magazine’s long, unyielding defense of civil liberties. We are proud, then, to join the ACLU and our fellow plaintiffs in fighting this unprecedented new assault on our freedoms.
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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.