We've written extensively about CISPA over the last year, but since the House Permanent Select Committee on Intelligence is set to mark the bill up next week, and the full House to vote on it the week after that, we're dissecting its shortcomings. Information sharing isn't offensive per se; it's really a question of what can be shared, with whom, and what corporations and government agencies can do with it. Yesterday we told you what could be shared (read: your personally identifiable information) and today we discuss where that information ends up.
With whom can companies share information?
Short answer: anyone the Googles, AT&Ts, Microsofts, and Facebooks of the world want to share it with.
Yes, for all the talk of getting critical information where it needs to go, into the hands of the people who need it--CISPA doesn't say "where" where is, or whose hands will receive it. Instead, CISPA lets the companies decide whether they will share it with other companies or with the government. In the latter scenario, companies even get to decide whether your information can be delivered to civilian agencies like the Departments of Homeland Security (DHS), Treasury, or Energy, or whether it can go to military ones like the National Security Agency (NSA). Under CISPA, the same companies holding records on what we read, where we go, and what we're thinking about get to decide who else can see those records.
When it comes to where the data should go in the government, it should go to civilian agencies. As we've written about before, and as we testified before Congress, maintaining civilian control of domestic cyber programs is one of the most important decisions Congress can make.
Under longstanding American legal requirements and policy traditions, the military is restricted from targeting Americans on American soil. Yet, CISPA would empower military agencies like the NSA to collect more information about internet users in order to respond to online threats. Doing so would create a significant new threat to Americans' privacy, and must be avoided. The NSA has developed extraordinary powers and has been granted broad legal leeway, all under the premise that its spying would be focused outside the confines of the territorial United States. Setting it free to begin collecting American information for cybersecurity purposes would be unprecedented, and incredibly dangerous because of the NSA's immunization from transparency.
In addition to being a bad deal for privacy, shifting cyber programs away from DHS isn't even necessary from a security perspective. The highest ranks of the intelligence community agree that DHS should retain authority over civilian cyber programs. NSA director, Gen. Keith Alexander, has stated that his agency should not be the public face of cybersecurity, and while his agency has a major part to play in our national cyber defense, DHS should be the entity to deal directly with civilians, the private sector, and domestic internet information.
Last year when it threatened to veto CISPA, the administration said that it opposed this bill precisely because it "…effectively treats domestic cybersecurity as an intelligence activity and thus, significantly departs from longstanding efforts to treat the Internet and cyberspace as civilian spheres." The calendar may have changed, but this year's CISPA remains the same as the one presented to the last Congress.
Have no doubt: this is a straight up fight for civilian control over our domestic internet. All members of Congress should oppose CISPA unless the bill is corrected to make sure DHS or other civilian agencies are empowered to act as a gatekeeper for our information. Sign this petition to tell the president to veto CISPA because it lets the NSA collect our very sensitive records.
Next up: What can be done with your sensitive personal information after it is shared? Check back tomorrow for CISPA Explainer #3 and click here to sign a petition to the president asking him to veto CISPA.
Other blogs in this series:
CISPA Explainer #1
CISPA Explainer #3
CISPA Explainer #4
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News & CommentaryDec 2024
Civil Liberties
National Security
Where Defense Secretary Nominee Pete Hegseth Stands on Civil LibertiesWhere Defense Secretary Nominee Pete Hegseth Stands on Civil Liberties
The ACLU has more than 100 years’ experience holding power accountable. As President-elect Donald Trump rolls out his cabinet picks, we analyze how his nominee for secretary of defense will impact civil liberties. -
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.