A federal court will be scrutinizing one of the National Security Agency’s worst spying programs on Monday. The case has the potential to restore crucial privacy protections for the millions of Americans who use the internet to communicate with family, friends, and others overseas.

The unconstitutional surveillance program at issue is called PRISM, under which the NSA, FBI, and CIA gather and search through Americans’ international emails, internet calls, and chats without obtaining a warrant. When Edward Snowden blew the whistle on PRISM in 2013, the program included at least nine major internet companies, including Facebook, Google, Apple, and Skype. Today, it very likely includes an even broader set of companies.

The government insists that it uses this program to target foreigners, but that’s only half the picture: In reality, it uses PRISM as a backdoor into Americans’ private communications, violating the Fourth Amendment on a massive scale. We don’t know the total number of Americans affected, even today, because the government has refused to provide any estimate.

This type of unjustifiable secrecy has also helped the program evade public judicial review of its legality because the government almost never tells people that it spied on them without a warrant. Indeed, the government has a track record of failing to tell Americans about this spying even when the person is charged with a crime based on the surveillance. That’s one reason why this case is so important — this time, the government has admitted to the spying.

In this case, the government accused a Brooklyn man, Agron Hasbajrami, of attempting to provide material support to a designated terrorist organization in Pakistan. After he pleaded guilty to one of the charges, the government belatedly admitted that it had read through his emails without a warrant.

Now Mr. Hasbajrami has challenged the government’s warrantless surveillance and is asking the Second Circuit Court of Appeals to throw out the resulting evidence. The American Civil Liberties Union and the Electronic Frontier Foundation are supporting him as friends-of-the-court, arguing that the surveillance was unconstitutional (the brief we filed is here). At the hearing on Monday, we’ll explain to a three-judge panel why the Fourth Amendment requires the government to get a warrant when it wants to exploit the communications of Americans who are swept up in PRISM.

This large-scale internet surveillance grew out of the Bush administration’s post-9/11 warrantless wiretapping program. It is conducted under a controversial law known as Section 702 of the Foreign Intelligence Surveillance Act. Relying on Section 702, the government intercepts billions of international communications — including many sent or received by Americans — and it hunts through them in investigations that have nothing to do with national security.

The government attempts to defend this spying by pointing out that its “targets” are foreigners located abroad. But this is no defense at all. Americans regularly communicate with individuals overseas, and the government uses PRISM surveillance to collect and sift through many of these private communications. The government has even admitted that one of the purposes of Section 702 is to spy on Americans’ international communications without a warrant.

The government casts a wide net, making it easy for innocent Americans who communicate with family, friends, and others overseas to be swept up. Relying on a single court order, the NSA uses Section 702 to put more than 125,000 targets under surveillance each year. These individuals need not be spies, terrorists, or accused of any wrongdoing — they can be journalists, business people, university researchers, or anyone else who may have information bearing remotely on “foreign affairs.”

PRISM is a warrantless wiretapping program that operates around the clock, vacuuming up emails, Facebook messages, Google chats, Skype calls, and the like. Government agents do not review all of the information in real-time — there’s simply too much of it. Instead, the communications are pooled together and stored in massive NSA, FBI, and CIA databases that can be searched through for years to come, using querying tools that allow the government to extract and examine huge amounts of private information.

One of the most problematic elements of this surveillance is the government’s use of “backdoor searches” to investigate individual Americans. Although the government says PRISM is targeted at foreigners who lack Fourth Amendment privacy rights, it systematically combs through its PRISM databases for the emails and messages of Americans. Indeed, FBI agents around the country routinely search for the communications of specific Americans using their names or email addresses — including at the earliest stages of domestic criminal investigations.

The result is an end-run around the Fourth Amendment. Investigators have easy access to a trove of Americans’ private emails, calls, and messages, without ever seeking individualized approval from any judge, as the Constitution requires.

This surveillance leaves far too much unchecked power in the hands of executive branch officials. Today, that includes President Trump, who as a candidate called for expanded spying on Americans. The ACLU is taking on this threat to Americans’ privacy rights, just as we challenged the government’s warrantless wiretapping across both the Bush and Obama administrations. Now the courts must do their part to ensure that Americans’ online communications receive the full protection of the Fourth Amendment.

By Tammy L. Brown, Associate Professor of Black World Studies, History, and Global and Intercultural Studies, Miami University

My 94-year-old great-aunt, Paralee Wilmer — we call her Aunty Lee — voted for the first time after moving to Cincinnati, Ohio, in 1944. Born to no-nonsense, small farmers in Millers Ferry, Alabama, and the youngest daughter of 12 children, Aunty Lee was one among many African Americans who moved from the South to the North in search of better job opportunities and greater freedoms during the The Great Migration. These freedoms included the right to vote without intimidation or any other hindrance.

Aunty Lee’s memory is a bit cloudy regarding whether the first time she cast her ballot was in an election for local politicians or a presidential race, but one thing she knows for sure is her pastor at the time inspired her to exercise her constitutional rights and fulfill her civic duties. He said, “When it’s time to vote, make sure you vote. When it’s time to do grand jury, make sure you go.”

At age 20, Aunty Lee understood the magnitude of her pastor’s advice, given the disenfranchisement of Black folks that she witnessed growing up in Millers Ferry — including poll taxes, literacy tests, and outright violence and intimidation that prevented Black people from voting. To be a Black citizen in America but denied full citizenship rights epitomizes the hypocrisy of American democracy. This is a sad truth that I repeat like a blues refrain to my students.

This summer — as the nation celebrates the 170th anniversary of the first major convention for women’s rights at Seneca Falls and the 98th anniversary of the 19th Amendment to the Constitution, which granted women the right to vote — how do we reconcile widespread narratives of a triumphant, steady march towards women’s enfranchisement with the more complicated and painful reality of my great-aunt’s lived experience as a young, Black woman in Jim Crow America?

One word: intersectionality.

Legal scholar Kimberlé Crenshaw argues that racism and sexism intersect in a manner that compounds Black women’s oppression. Although the above historical events occurred long before Crenshaw articulated intersectionality, this insightful theory should be applied to all historical narratives that do not fully engage with the lived experiences of African-American women.

What do we notice when we take an intersectional view of the events that transpired at Seneca Falls? How does our understanding of the history of all women’s political empowerment in the United States change?                    

When suffragists gathered in Seneca Falls, New York, in July 1848, they advocated for the right of white women to vote. The participants were middle and upper-class white women, a cadre of white men supporters and one African-American male — Frederick Douglass.  The esteemed abolitionist had forged a strong working relationship with fellow abolitionists and white women suffragists, including Elizabeth Cady Stanton and Susan B. Anthony. No Black women attended the convention. None were invited. 

Although women of color were profoundly absent at Seneca Falls, a greater degree of cultural inclusion was on the horizon. In May 1851, African-American abolitionist Sojourner Truth spoke at a women’s rights convention in Akron, Ohio. During her famous speech on the abolition of slavery and the promotion of women’s rights, Truth allegedly bared her breast and proclaimed, “Ain’t I a woman?”

It was a melodramatic act and statement, but as historian Nell Painter argues, it never happened. Instead, it was a quaint fiction crafted by convention organizer Frances Dana Gage and other white feminists who depicted Truth to white audiences as a genuine albeit primitive ally in the fight for women’s rights. Thus, the 1851 convention marked a modicum of progress, but this progress is tainted by white suffragists’ attempts to control Truth’s voice.

By the turn of the 20th century, Black suffragists such as Mary Church Terrell represented intersectional feminism at its best. Born to former slaves in Memphis, Tennessee, Terrell earned her bachelor’s and master’s degrees from Oberlin College and served as president of the National Association of Colored Women. In February 1898, Terrell spoke at the National American Woman Suffrage Association convention in Washington, D.C.

Her speech forced powerful white women attendees to reflect on the compounding oppressions and systemic violence that Black women endured during slavery. She ended on a more optimistic note — praising the sheer grit and intellect of freed women. Terrell’s rhetorical style echoed the American ethos of self-made men and women, but she oversimplified the historical reality that the paths to racial and gender equality are long, jagged, and still unwinding.

The history of women’s suffrage in America is not nice or neat, because the impact of white supremacy is broad and human nature is messy. Furthermore, a nation built on stolen land from Native Americans and stolen labor from African slaves is flawed from the start. We must constantly acknowledge this truth and engage in an intersectional celebration of women’s rights activists and landmark events.

In addition to celebrating the passage of the 19th Amendment, let’s celebrate the upcoming birthday of African-American suffragist Mary Church Terrell, who would be 155 on September 23. Let’s celebrate the lives and legacies of the true Sojourner Truth, abolitionist and suffragist Harriet Tubman, and Shirley Chisholm — the first Black woman elected to Congress and to seriously run for president. 

Let us celebrate and support current-day Black Lives Matter founders and organizers Alicia Garza, Patrisse Cullors, and Opal Tometi, three queer Black women committed to “placing those at the margins closer to the center” of political leadership. Last but not least, let’s celebrate the lives of everyday people like my Aunty Lee — a Black woman born and raised in Jim Crow Alabama who sought out a better life in Ohio and has religiously exercised her right to vote for the past 74 years.  Let us celebrate these Black women while recognizing that the struggle to vote without obstacles continues.

The Trump administration claimed in court filings Thursday evening that it had met the court-ordered July 26 deadline to reunite the children it wrongfully separated from their parents. 

It did no such thing. 

In fact, what the government did was reunite upwards of 1,500 children it deemed eligible for reunification and whose parents it could find. Hundreds of children were not reunited for a variety of reasons. Some 463 parents were deported without their children — and the government isn’t even trying to reunite them — and the administration said it doesn’t know the identities of the parents of 40 children.

What’s worse, until last Friday, the government did not provide the ACLU with lists of the most vulnerable families in our class --- the ones who are at risk of imminent deportation. The lack of notification is particularly egregious because the Trump administration has said that it plans to immediately deport all of the parents who have final deportation orders once they are reunified, even though evidence suggests that many of those parents may have mistakenly given up their asylum claims. We and our allies are now working to get these families connected with lawyers, so that they can make decisions based on sound advice, rather than misleading or confusing information from immigration officers. 

In addition, the government provided lists claiming that 206 parents waived their right to be reunified with their children by either signing waivers or providing oral consent. The majority of these parents are now subject to immediate deportation. But on Tuesday, we filed a slew of affidavits showing that many of these parents desperately want their children back and did not realize they had relinquished their right to reunification. 

In some cases, the parents said the forms were not explained to them and that they felt pressured to sign. Some were not provided translation in their native languages and had no idea what they had signed. One said he was told that signing the form was the only way to prevent his daughter from being sent back to Guatemala.

Because of the confusion, the ACLU has asked the court to block any deportations for seven days after we are notified of reunification so that we can make sure families have the opportunity to meet with lawyers, are fully apprised of their options, and can make the decision that is best for them.

In our filing Thursday evening, we also asked the government to:

• Provide all information possible on parents who were deported without their children so we can begin tracking them down. We want to make sure that all of them can be reunited with their children or make an informed decision to leave their children in the United States. If any of them were improperly deported, we believe they should be brought back to the United States.
• Explain in detail what efforts are being undertaken to locate and make contact with the parents the government can’t find. That there are 40 children with no parental information is profoundly disturbing, and we want to know how this could have happened and what is being done to locate them.
• Provide a detailed list of the reasons parents were deemed ineligible for reunification with their children. The government has alleged that some of them have criminal histories and a variety of other factors, but it has not provided specific information about the crime. While we agree that some crimes may make a parent unfit to be reunited with his or her child, clearly not all crimes do, so we need the details.

We will be back in court in San Diego on Friday afternoon. Rest assured: We expect this will be one of many more appearances before all of the families the government wrongfully separated are reunited.