Deadline Looming, Strongest Surveillance Reform Bill Yet Emerges
Congress has just five weeks to decide the fate of key foreign intelligence surveillance powers — forcing a showdown between surveillance reformers and defenders. And now, a group of Republicans and Democrats have unveiled the strongest comprehensive reform proposal that we have seen yet.
The Safeguarding Americans’ Private Records Act of 2020, introduced by a of members including Sens. Wyden (D-Ore.) and Daines (R-Mont.), is a strong first step. The bill is a response to the spying abuses that seem to pile up by the day — the collection of over a billion call records, spying on a prominent Trump advisor based on flawed evidence, and use of extraordinary measures to prevent courts from judging the legality of the government’s practices.
There are many things to like about the bill.
For one, it makes many strong reforms to Section 215 of the Patriot Act — the infamous law that was used by the Bush and Obama administrations to collect the call records of nearly every single American. The bill puts a definitive end to the call record program, which was recently by the NSA amid a cascade of reports revealing unauthorized record collections and legal violations. The bill also heightens the legal standard that the government must meet to collect records under Section 215 and rightly requires the government to purge those records within three years, with limited exceptions.
In addition to reforming Section 215, the bill also attempts to rein in other national security authorities that the government has abused. For example, it inserts a sunset into the Justice Department’s “National Security Letter” administrative subpoena authorities, which the government has often misused to collect information in non-terrorism cases and pressure companies to turn over information that the government should only be demanding with a court-ordered warrant in hand. Such a sunset will rightly prompt oversight by Congress and a debate over whether these provisions should be permitted to continue at all.
Moreover, the bill takes a first step towards ensuring that individuals trapped in the government’s surveillance regime can better exercise their constitutional rights. In particular, the bill requires the government to notify individuals in cases where information “obtained” or “derived” from Section 215 collection is used against them. It also defines the meaning of “derived,” in FISA, to prevent the government from engaging in legal gymnastics and evading its notice obligations.
Finally, the bill takes an initial step towards reforming the secretive, one-sided intelligence court. The Carter Page debacle brought the deficiencies of the court into stark relief: despite numerous omissions and inaccuracies, the FISA court approved an initial application and three subsequent renewal applications targeting the Trump campaign advisor for surveillance. To help prevent these types of abuses in the future, the bill would enhance the power of amici curiae — “friends of the court” whom the FISC currently appoint in a narrow number of novel and significant cases — to raise concerns in a larger subset of proceedings or to recommend a case review by a higher court. In addition, the bill would put in place several added transparency measures to give the public a better understanding of how the government is using the Patriot Act and other spying powers.
Despite these strong provisions, the proposed bill is far from perfect and members of Congress should address its gaps.
For one, the bill fails to fully protect the rights of defendants by ensuring they have access to FISA applications and orders in cases where intelligence information is used against them. If, like Carter Page, someone was improperly surveilled on the basis of government misstatements or omissions, they should have the ability to prove the government was wrong. Along the same lines, the bill does nothing to ensure that individuals who are spied on — but never prosecuted — are notified. Criminal statutes like the Wiretap Act have long required after-the-fact notice to surveillance targets, with provisions designed to protect ongoing investigations. There is no reason that a similar requirement should not exist in the intelligence context.
Second, Congress needs to place greater limits on the Patriot Act and other surveillance powers to strengthen First Amendment protections and ensure intelligence authorities are not abusing the laws to discriminate on the basis of race, ethnicity, national origin, and other protected characteristics.
Third, while the bill makes a notable effort to limit the types of records that can be obtained under Section 215 — prohibiting the collection of cell site location information, GPS information, and browsing history, among others — this language should be strengthened. Congress must make crystal clear that the government cannot use Section 215 to obtain other types of location information or sensitive records, like tax returns or medical records. Under Section 215, the government can obtain large quantities of records by merely showing that they are “relevant” to a terrorism or counterintelligence investigation. This standard is much weaker than the probable cause standard required by warrant. Thus, in cases where the government seeks these sensitive records, they should be required to meet a higher evidentiary threshold.
Finally, additional reforms are needed to fully empower the FISA court amici and tackle the deficiencies within the intelligence courts. Elements from a recent sponsored by Reps. Nunes (D-Calif.), Stewart (R-Utah), and other Republicans should be incorporated, including language requiring amici participation in proceedings targeting Americans, directing the amici to assess the sufficiency of evidence, and increasing transparency over the court’s proceedings.
The clock is ticking — and it’s past time for Congress to pass these critical reforms.
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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.