Anthony D. Romero on Virtually Speaking

BROOKLYN, N.Y. — In a long-awaited ruling in United States v. Hasbajrami, the U.S. District Court for the Eastern District of New York last night held that warrantless queries — or searches — conducted under Section 702 of the Foreign Intelligence Surveillance Act violated the Fourth Amendment. The ruling is the first of its kind, and it follows years of public revelations about how Section 702 has been used by the government to conduct warrantless surveillance of Americans, including protesters, members of Congress, and journalists. The court's opinion addresses numerous queries the FBI conducted of the defendant, Mr. Agron Hasbajrami, during an investigation years ago. The government initially hid its use of Section 702 in Mr. Hasbajrami's case and others, reversing course only after the Department of Justice's policy of wrongly concealing Section 702 surveillance in criminal cases came to light. “This is a major constitutional ruling on one of the most abused provisions of FISA,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “As the court recognized, the FBI's rampant digital searches of Americans are an immense invasion of privacy, and trigger the bedrock protections of the Fourth Amendment. Section 702 is long overdue for reform by Congress, and this opinion shows why.” The decision follows a groundbreaking 2019 ruling by the Second Circuit Court of Appeals, which recognized that Section 702 queries of people in the United States are searches that trigger separate Fourth Amendment scrutiny. The court of appeals sent the case back to the lower court for further constitutional analysis, culminating in yesterday’s ruling. While the new opinion holds that the FBI’s Section 702 queries violated the Fourth Amendment, the court ultimately denied the defendant's motion to suppress the resulting evidence on separate grounds. The American Civil Liberties Union and the Electronic Frontier Foundation filed an amicus brief in support of Mr. Hasbajrami in the Second Circuit.

WASHINGTON — The U.S. District Court for the Western District of Washington ruled today that the federal government’s Controlled Application Review and Resolution Program (CARRP) is “arbitrary and capricious,” and violates the Administrative Procedure Act (APA). CARRP is a discriminatory policy that instructs immigration officers to label some people applying for immigration benefits – like green cards or citizenship – as “national security concerns.” According to CARRP, someone can be branded as a “national security concern” based on innocuous characteristics, like speaking another language or having an advanced technical degree. Once USCIS decides a person is a “national security concern,” it bends over backwards to find a way to reject their application for benefits. People in CARRP have to endure extended processing delays and much higher denial rates, which can tear apart their personal and professional lives. “This decision makes clear that CARRP was a horribly flawed idea from the beginning,” said Charlie Hogle, staff attorney with the ACLU’s National Security Project. “It needlessly harms aspiring Americans, many of whom have homes, families, and careers here.” In its decision, the court recognized that, despite years of litigation, the federal government has never pointed to any evidence explaining its decision to create CARRP. The court also found that, in designing CARRP, the federal government failed to consider whether it would be able to decide applications in CARRP within a reasonable amount of time, as the law requires. These failures make CARRP unlawful. “Today’s order is a huge step forward in vindicating the rights of thousands of people with lawful status who are subjected to arbitrary and unlawful delays that wreak havoc on their lives,” said Matt Adams, legal director of the Northwest Immigrant Rights Project. “These delays —often for years—cause people to lose jobs and homes.” The plaintiffs challenging CARRP also argued that the policy violates their constitutional rights to due process and equal protection. The court did not agree with those arguments, even as it concluded that CARRP violates the APA. The plaintiffs in Wagafe v. USCIS are represented by the ACLU, the Northwest Immigrant Rights Project, Perkins Coie LLP, the Law Offices of Stacy Tolchin, and the Harvard Immigration and Refugee Clinical Program.

WASHINGTON — The Supreme Court issued a major blow to freedom of expression online today by refusing to block legislation that will effectively ban TikTok in the United States beginning this Sunday, January 19. The decision will impact more than 170 million Americans who use the social media platform and will endanger the constitutional rights of every American to speak and receive information online. “The Supreme Court’s ruling is incredibly disappointing, allowing the government to shut down an entire platform and the free speech rights of so many based on fear-mongering and speculation,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “By refusing to block this ban, the Supreme Court is giving the executive branch unprecedented power to silence speech it doesn’t like, increasing the danger that sweeping invocations of ‘national security’ will trump our constitutional rights.” Under the First Amendment, the government must meet an extraordinarily high bar to ban an entire communications platform. It must show that the ban is the only way to prevent serious, imminent harm to national security, and that the ban limits no more speech than necessary to accomplish that purpose. As the ACLU noted in its amicus in support of TikTok, the government has not come close to meeting that standard. Absent last-minute action by Congress or the president, starting January 19, TikTok is likely to disappear from app stores in the U.S. and existing U.S. users will probably lose the ability to update the app on their devices, at the very minimum. However, President Biden or President-elect Donald Trump could grant TikTok an extension under the law or direct the Department of Justice not to enforce the ban. This week, Sen. Ed Markey (D-MA) also introduced a bill that would give Bytedance, the Chinese parent company of TikTok, more time to sell the app. “Taking away Americans’ free speech rights does not make us safer; it endangers our democracy,” said Jenna Leventoff, senior policy counsel at ACLU. “The next administration must immediately work with Congress to fix or repeal this flawed legislation. No one should be stripped of their ability to express themselves, especially on a platform that brings together such an immense, vibrant collection of voices from around the world.”

Our First Amendment right to express ourselves must be protected.