This was originally posted on The Guardian.
Members of Congress have introduced almost 30 separate bills to rein in NSA spying, increase transparency, or rework the secret court process that has sanctioned these programs. Two pieces of legislation, however, have momentum, and they couldn't be more different.
The Senate Select Committee on Intelligence – the body charged with oversight of these very programs – advanced legislation introduced by its chair, Senator Dianne Feinstein (Democrat from California), last week that would entrench the current spying programs and give them explicit Congressional authorization to continue.
The legislation would make clear in no uncertain terms that communication records like phone, email, and internet data can be collected without even an ounce of suspicion, pursuant to the so-called privacy rules already in place. Being silent on other types of data like location information or financial records, it passively condones their collection too, but without even the benefit of the paltry protections in place now. For the first time in history, Congress would explicitly and intentionally authorize dragnet domestic spying programs targeting every day Americans.
The Feinstein bill also makes the current situation even worse. It gives the government a 72-hour grace period to warrantlessly spy on foreigners who enter the US, without even the attorney general approval that is currently required in emergency situations. It explicitly states that none of its provisions should be read to prevent law enforcement from digging through massive NSA databases for evidence of criminal activity. By doing so, it authorizes that specific practice in a roundabout way. Finally, it sets up the prospect of all members of Congress accessing important court orders and other information, but then undercuts this requirement by endorsing current rules and practices that have been used to prevent members of the House from reading foundational documents that could inform the votes they must make on whether to continue these programs.
The counterproposal is called the USA Freedom Act. Introduced by Rep James Sensenbrenner (a Wisconsin Republican) and Senator Patrick Leahy (a Vermont Democrat) of the powerful House and Senate Judiciary Committees, the bill has already picked up over 100 bipartisan members of Congress as cosponsors. Unlike Sen. Feinstein's bill, the USA Freedom Act would start to rein in the NSA's dragnet surveillance programs by banning the suspicionless collection of Americans' phone calls. It would also amend the Patriot Act so that it could not be used for bulk collection of other forms of communications data under other abused authorities, like national security letters and pen registers.
The USA Freedom Act would also narrow collection of data under the FISA Amendments Act of 2008 and require court approval before the government could search the rich data troves collected under that law for US persons. It would direct the administration to find a way to release the secret court opinions underpinning these programs, as well as provide for a privacy advocate who could advise the surveillance court.
The bill fixes the draconian and unconstitutional gag orders that come with surveillance court orders, so the companies that receive them can provide basic information to their customers and the public. In total, the bill starts to chip away at the indiscriminate surveillance state and redirect the government towards surveillance focused on suspected terrorists – and not the rest of us.
No matter how you cut it, the Feinstein bill is a big step backwards for privacy, and the USA Freedom Act is an incredibly important step forward. To be clear, Congress will not be choosing between two reform proposals that differ only in degree. It will be choosing, instead, between one bill that allows the government to engage in indiscriminate surveillance of its citizens and another that subjects government surveillance to the common-sense limits that are required by the Constitution and fundamental in any democratic society. If you think the government's actions are beyond the pale now, wait until you see what it does with something like the Feinstein bill and a congressional stamp of approval for its past overreach.
Americans have the right to be left alone unless suspected of wrongdoing. Rep Sensenbrenner and Senator Leahy understand this simple and revered American ideal; Senator Feinstein does not. There's only one way forward that will protect privacy: the USA Freedom Act, and Congress needs to act on it immediately.
Learn more about government surveillance and other civil liberty issues: Sign up for breaking news alerts,follow us on Twitter, and like us on Facebook.
Learn More About the Issues on This Page
-
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.