The NSA Is Using Secrecy to Avoid a Courtroom Reckoning on Its Global Surveillance Dragnet
President Trump holds the keys to some of the most powerful spying programs in the world — surveillance that gives the government warrantless access to a sea of digital data moving around the planet.
Emails, web browsing activities, and chats that you thought were private instead end up under the government’s digital microscope, and the National Security Agency saves those of interest in searchable databases for years to come. That includes countless communications of Americans and foreigners alike.
No president should wield these powers, and certainly not one who has called for expanded spying on minorities and hacking the emails of his political rival. That’s why, well before President Trump took office, the ACLU filed a challenge to expansive and unlawful surveillance on behalf of our client, the Wikimedia Foundation.
On Friday, we will be in court with our co-counsel at the Knight First Amendment Institute and the law firm Cooley LLP for oral argument in the case, Wikimedia v. NSA, challenging one of the most egregious forms of government spying, known as “Upstream.”
Upstream surveillance involves the NSA’s mass interception and searching of Americans’ international internet communications. The NSA conducts this surveillance by tapping into the internet backbone inside the United States — the physical infrastructure that carries our domestic and international online communications. This spying occurs under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the NSA to engage in warrantless surveillance of Americans who communicate with targets located abroad. Although the NSA has conducted Upstream surveillance in one form or another for more than a decade, no public court has ever decided whether this spying regime is constitutional.
The Wikimedia Foundation runs Wikipedia — one of the most popular websites in the world, with hundreds of millions of visitors each month. Wikimedia has sued to stop the government from searching its internet communications, which it relies on to exchange information with its many far-flung contributors and readers. Web-browsing activities like these can reveal deeply personal information about what people are reading or writing online, including their political views, religious beliefs, medical questions, and other private information.
Wikipedia is a library for the digital age. The government should not be continuously looking over people’s shoulders, monitoring what individuals are privately reading online.
The government has fought every step of the way to prevent Wikimedia from challenging the ongoing surveillance of communications with Wikipedia readers and contributors. The NSA argued Wikimedia’s claims weren’t “plausible” because the NSA hadn’t admitted to the surveillance, but the government failed in its effort to get the case dismissed when a federal court of appeals ruled against it. The case then proceeded to the discovery phase, where Wikimedia sought information that would build on the extensive public record and deposed an NSA official.
Friday’s hearing is focused on the NSA’s use of a legal tactic called the “state secrets privilege” to hide basic facts about Upstream surveillance from Wikimedia and the court, despite all that has been disclosed in public reports, official government testimony, and news stories. Although the government has touted its commitment to transparency since Edward Snowden helped reveal a vast NSA spying apparatus five years ago, it has stonewalled Wikimedia’s requests for information in court.
The NSA has invoked the state secrets privilege in response to dozens of questions, baselessly refusing to provide a shred of new information about Upstream surveillance. For example, while the NSA has admitted systematically scanning traffic on the internet’s major arteries, it refuses even to confirm that it has searched a single one of Wikimedia’s trillions of communications with its users around the world.
But as we’ll be arguing Friday, the government can’t use the state secrets privilege to withhold evidence in the case. When Congress set out to reform our surveillance laws after the abuses of the 1960s and 70s, it recognized the conflict between absolute secrecy and accountability — and it created a new procedure in FISA to ensure challenges to surveillance would be able to go forward. That procedure requires the government to provide sensitive information to the court in the first instance — with appropriate security precautions — so that the court can rule on claims of unlawful government surveillance.
As a result, the government’s invocation of secrecy is unjustified. Congress recognized the dangers of allowing the executive branch to hide behind unilateral claims of secrecy, and it adopted a starkly different approach in FISA. Given the grave threat this spying poses for privacy and free expression online, it’s time our public courts reckoned with the real-time, automated searching of internet communications. This week’s hearing will hopefully bring us one step closer to that reckoning.
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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.