This week the ACLU published a damning report chronicling the many ways the FBI has abused post-9/11 authorities to spy on everyday Americans. As we noted, the FBI is even enmeshed in the broad suspicionless NSA dragnet of American phone calls.
One area that is especially ripe for FBI reform is its use of electronic surveillance tools. There's no two ways about it: the FBI is at the heart of the U.S. intelligence community's domestic data collection programs.
The most recent example is that the FBI applies for secret court orders to compel companies to give the U.S. military's spy agency the NSA all of their customers' domestic phone records. This means the FBI helps the military, which is traditionally barred from collecting information about Americans, to get all the telephone records of almost everyone in the U.S., even if they aren't suspected of being a terrorist or a spy or in contact with someone who is. While the NSA is the recipient and processor of our information, the FBI is the entity that makes the applications to the secret court for these sweeping orders. It also gets access to the records the NSA analyzes.
But the bureau isn't just the middleman in the NSA's spying operation here at home; it is a vast, powerful, and secret electronic surveillance agency in its own right.
Even before the NSA spying scandal broke, the FBI was caught issuing up to 40,000 or 50,000 national security letters every year to collect the communication, financial, and credit records of people without any nexus to terrorism. In 2007, 2008, and 2010, Department of Justice Inspector General reports found extensive abuse of this authority, shoddy record keeping, and concocted emergencies. In at least two instances, the FBI issued NSLs to obtain information that even the FISA Court deemed to be a bridge too far and an infringement of First Amendment rights. Despite voting on the Patriot Act several times in the last several years, Congress has never amended this authority to return it to its original purpose – the collection of information pertaining to suspected terrorists and spies.
The executive branch could not be clearer. It will continue these programs until Congress amends the authorizing statutes and puts an end to this over collection of American information. Remember, in July, an amendment proposed by Rep. Justin Amash (R-Mich.) to defund bulk domestic surveillance under the Patriot Act was only 7 votes away from passing in the House. The momentum hasn't diminished. It fact it's only grown stronger as more and more disclosures have occurred, resulting in 20-plus bills that would provide greater transparency into government spying and more privacy protections for Americans.
Fear of overzealous government surveillance is no longer a peripheral debate, it has gone mainstream. And the heavyweights on the Hill have taken note. Rep. Darrell Issa (R-Calif.), the powerful chairman of the House Oversight Committee, has changed his mind in light of recent revelations and wants a revote. Chairman Bob Goodlatte (R-Va.) of the Judiciary Committee says change is coming for the NSA. Even the author of the Patriot Act, Rep. Jim Sensenbrenner (R-Wis.), says enough is enough. During a committee hearing earlier this summer, Sensenbrenner told the government it had better reform Section 215, otherwise ""You're going to lose it entirely."
Before the Patriot Act, the government's surveillance tools were designed to collect information on specific individuals suspected of being foreign agents and terrorists, not engage in dragnet surveillance methods that ensnare innocent people. Congress should return the government to that standard.
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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.