ACLU News

Will North Carolina's Supreme Court Allow Racism to Remain a Persistent Factor in its Death Penalty?

North Carolina's Supreme Court will determine whether evidence of racism in capital punishment can be swept under the rug.

In 2009, North Carolina passed the Racial Justice Act (RJA), which allowed defendants to strike the death penalty from their cases if they could show that racial discrimination was a factor in their prosecution. The law came as a response to a series of exonerations of Black people who were falsely convicted of crimes they did not commit by all-white or nearly all-white juries. The legislature took a bold step to address was what suspected to be deeply troubling evidence of racism infecting the death penalty—but no one knew for sure what evidence uncovered by the RJA would find.

In 2010, people on death row began filing RJA claims. Four had hearings, and the evidence uncovered was indeed stark, troubling, and clearly pointed to the systemic ways that racism infects capital cases in North Carolina. The four petitioners had death sentences reversed and were resentenced to life without parole (LWOP).

But in 2013, the law was repealed by the same new legislature that targeted Black voters with “surgical precision” in gerrymandering, and the four petitioners were all sent back to death row without new trials. Two additional petitioners—who had uncovered evidence through the RJA but not yet had hearings—were also subsequently denied their day in court.

On August 26th  and 27th, we, along with five other legal teams and the NAACP Legal Defense and Educational Fund, Inc., will go before the North Carolina Supreme Court to fight for the rights of the six petitioners to have their evidence recognized and their death sentences overturned. The Attorney General for North Carolina will ask the Court to do one of two things: Sweep clear and obvious evidence of racism under the rug and pretend it does not exist or shold that, in 2019, it is fine to use trials infected with racism as the vehicle to execute Black men.

In its quest to disregard the troubling evidence of racial bias, the State will ask the North Carolina Supreme Court to overturn constitutional law, dating back to the Civil War, protecting the right to have a legally filed defense heard in court, regardless of whether those defenses are later repealed. North Carolina established this legal principle in a case that dismissed prosecution for multiple murders committed during the Civil War, based on a law granting immunity for such acts, even though the law was later repealed. That precedent has stood in North Carolina law for almost 150 years. 

Hypocrisy often produces irony, and that is true here: A legal principle was established to protect confederate soldiers for the massacres of civilian children and men. Now, the North Carolina Supreme Court is being asked to ignore this principle in a case challenging discrimination against Black jurors at the life and death trials of persons of color. We can learn a lot by studying who the law is selectively applied to benefit.

Allegations made in the six complaints and evidence produced in the hearings included a prosecutor calling a defendant “a big black bull;” a suggestion during jury selection that a Black defendant should have been lynched; the use of crime scene tape to section off the area behind the defense table, with the defendant’s family forced to sit in the back of the courtroom, while the white family of the victim sat in front behind the prosecutor; derogatory and demeaning interrogation of Black jurors, including questions about whether a juror had trouble reading and whether he had gone “straight through” school, implying he may have repeated grades.

One prosecutor wrote in his notes that a Black juror with a criminal history was a “thug” while a white juror who trafficked in drugs was “a fine guy;” a Black juror was described as a “blk wino” while a white juror with a DUI conviction was a “country boy – ok.” 

There is evidence prosecutors were trained on how to give pre-planned responses to Batson objections regardless of the evidence. At least one of the prosecutors in the RJA cases persistently relied on this training to respond to Batson objections to her decisions about removing Black jurors. One had the audacity to read from a list of excuses and struck a Black juror for age, despite the fact that she had let a white juror with the same birthday remain immediately prior. When the judge noticed and asked her about it, she ran down to the next reasons on her cheat sheet.

The data corroborate all of this anecdotal evidence and prove that racial bias in North Carolina’s death penalty is systematic—not the work of a few isolated bad actors. The state’s own statistical expert conceded that the patterns of exclusion of Black jurors in the cases suggested racial discrimination. A Michigan State University study conducted in connection with the RJA examined the decisions of prosecutors across the state involving over 7,000 jurors, in 173 capital trials, over twenty years. The study found that—across all time periods and geographic areas—race played an “overwhelming” role in jury selection in the state. A subsequent study, conducted by former prosecutors from Wake Forest Law, found the same patterns. All of this evidence is clear, shameful, and undeniable.

The State has continually argued that all of the evidence of blatant racism in all six cases should be ignored or that it just does not matter. Those positions are especially shameful in light of North Carolina’s legacy of racial terror and lynching. EJI calculated 123 lynchings in North Carolina between 1877 and 1950. This legacy of executions should be a stark reminder of the role race has played in who is executed in North Carolina.      

Sweeping this under a rug won’t work: There is no rug big enough to hide the stench of this evidence. More than a century of North Carolina law says you get your day in court even if the law is repealed; 73 years of lynchings and evidence of overwhleming racial bias in the death penalty say enough is enough. If North Carolinians are to have any faith in their legal system, the Court must intervene and set this right. Our democracy depends on it. 

A Louisiana Parish Jailed a U.S. Citizen for Being Latinx. We’re Suing.

Officers in a Louisiana jail held a U.S. citizen for four days on an immigration hold simply because of his skin color and name.

Ramon Torres had been a U.S. citizen for nearly ten years when he was detained for four days on an immigration hold – despite having a U.S. passport, a Louisiana driver’s license, and a Social Security card, and despite that fact that a court ordered his release. 

Torres’ ordeal began in August 2018, when he was pulled over and arrested on suspicion of driving while intoxicated. Torres, a naturalized U.S. citizen since 2009, was carrying multiple forms of identification, including his driver’s license and other security credentials. Torres was booked at the Ascension Parish Jail, and the next day the Parish Court ordered his release.

But Torres wasn’t released. Instead, the Ascension Parish Sheriff’s Office placed an “immigration hold” on Torres on the suspicion that he was unlawfully present in the United States.

The basis for this suspicion? He had a Latinx name and brown skin.  Staff at the sheriff’s office explained that they had a policy of detaining all Latinx people for immigration review.

When his friends and family tried to intervene and provide additional documentation proving that Torres is a U.S. citizen, officials in the sheriff’s office still didn’t budge.

Torres spent four days in jail before a lawyer’s involvement finally secured his release.

This was a flagrant violation of Torres’ constitutional rights, and this week the ACLU of Louisiana sued on his behalf.

Racial profiling is illegal, unconstitutional, and deeply harmful to families and communities – diverting scarce resources away from pressing public safety priorities.

What happened to Torres is inexcusable and antithetical to our most cherished American values.

Unfortunately, this is what happens when local law enforcement authorities get in the business of federal immigration enforcement. From Sheriff Joe Arpaio’s reign of terror in Arizona to the Trump administration’s mass deportation and detention agenda, immigrant communities are being unfairly targeted, harassed, and terrorized by the very law enforcement agencies that should be protecting them.

It’s also a reminder of the thinly-veiled racism that underlies these policies. Ramon Torres is a U.S. citizen. He owns a home. He has a driver’s license and other forms of proof of his identity. But he was held in jail because of his Latinx name and the color of his skin.

Our lawsuit asks the court to declare these actions unconstitutional and to award damages to Torres for what he endured. But more broadly, we must also continue the fight against all forms of anti-immigrant bias and discrimination. The safety and wellbeing of our communities depend on it.

An Arizona Law Requires Surveillance of People Who Are Presumed Innocent

The government cannot take shortcuts around constitutional rights

A pillar of our democracy is the presumption of innocence: before a person has been convicted of a crime, they are considered completely innocent under the law. Yet across the country, people who have not been convicted are punished—both explicitly and implicitly—based on the mistaken assumption that they are dangerous, purely on the basis of an accusation. We do not live in a society where you can be incarcerated or monitored simply because you have been accused of a crime. Doing so violates constitutional rights, fuels mass incarceration, and impedes a fair and functioning justice system.  

Arguably, the most important moment in one’s case is the decision whether to release an arrested person on bail, and if so under what conditions. Nothing predicts a later criminal conviction more than being jailed pretrial. The difference between being locked behind bars or able to return to your family, maintain your job, and work with a lawyer to defend yourself can make or break your chances of winning your case. All too often, people succumb to the pressure to plead guilty—regardless of actual guilt—because of the horrors of incarceration.  

Even for those who are released pretrial, the ordeal doesn’t end. Increasingly, presumptively innocent people are subject to onerous and expensive conditions upon their pretrial release such as ankle monitoring, drug testing, or physical checks ins with probation officers. In much of the country, people released may have to pay for the costs of any such conditions, which can cost hundreds of dollars every month.

But this critical pretrial decision is often infected by a knee-jerk fear: Simply because a person is accused of a given crime, they must be dangerous.  This tendency undermines the presumption of innocence and is out of touch with reality. Over 98 percent of people released pretrial with pending felonies avoid arrest for a violent felony.

Arizona provides key examples of problematic presumptions of dangerousness. In 2002, Arizona voters passed a ballot initiative requiring that people accused of various crimes sit in jail pending trial.  The ballot initiative was based entirely on fear-mongering, claiming without evidence that “it has happened time and again” that “slick defense lawyers” get bond amounts reduced and were thus “allowing predators back on the street for just a few hundred dollars.”  We argued that these automatic jail laws were unconstitutional, and the Arizona Supreme Court struck down two provisions. The message was clear: You cannot presume someone is dangerous based simply on charge, even if the allegations are serious. Individuals deserve a determination of their pretrial freedom based on their specific circumstances. 

However, Arizona still has laws on the books that shortchange crucial individualization pretrial. Under one state law, anyone accused of a sex offense is put on 24/7 GPS monitoring as a mandatory condition of their release. This means people have to wear an ankle monitor that tracks their every move, requires charging every day, and can be extremely stigmatizing to wear. In Mohave County, people have the added burden of having to pay a private, for-profit company for their monitoring, which can range between $8-$20 per day and run up to hundreds of dollars each month. If someone cannot afford these fees, they are thrown back in jail, which churns more people into the mass incarceration machine.

Those facing monitoring in Arizona, including our clients, have been accused of serious crimes. However, mandatory monitoring over an entire category of charges does not allow consideration of the facts of each specific case, and is clearly unconstitutional. Under current Arizona law, an 18-year-old with a partner who is 17 would be subjected to automatic monitoring if charged, as would a woman accused of indecent exposure if a person younger than 15 saw her breasts.  Further, many people are wrongfully accused and overcharged: A third of all felony cases end in dismissal nationwide. And police and prosecutors have wide latitude to make charging decisions—with a documented history of harming people of color in particular—and may choose to tack on a higher charge to trigger the monitoring condition even where the evidence is thin.

Just because someone has been accused of a serious crime does not mean they are dangerous. Nor do they forfeit their constitutional rights. The Supreme Court made clear nearly seventy years ago that adding onerous bail requirements simply based on the crime charged is arbitrary and totalitarian. We must continue to fight to ensure these principles of our democracy are made meaningful in practice. We’ll be in court on August 22nd fighting against Arizona’s pretrial shortcuts to ensure that everyone is afforded their constitutional right to the presumption of innocence.

Corrections Officer Who Struck Rhode Island Protesters with Pickup Truck Resigns

Activists say the private prison where the officer worked should be closed and immigrants detained there released

A senior corrections officer at the Wyatt Detention Facility in Rhode Island has resigned after being placed on administrative leave for driving his pickup truck into a crowd of peaceful protestors on Wednesday night. The attack left one man, 64-year-old Jerry Belair, with a broken leg and internal bleeding, and four others were hospitalized after the officer’s colleagues used pepper spray to disburse the crowd.

In an interview with the ACLU, Matt Harvey, a spokesperson for the Jewish-led civic group that coordinated the protest, called the officer’s actions a “shocking and ugly example of the violence that is an integral part of American immigration policy right now.”

The protest was coordinated by the Rhode Island chapter of Never Again, a loose federation of activists formed in response to the Trump Administration’s hardline immigration policies. It was the second major action the group has taken at Wyatt this summer. In early July, 18 of its members were arrested after blocking the entrance to the privately owned facility where over 100 detained immigrants are being housed under a contract with U.S. Immigration and Customs Enforcement (ICE).

According to Harvey, the protest was attended by up to 500 people. Gathering at 7PM, the group heard from local faith leaders and community activists, leading one another in chants and songs outside the facility. Anticipating a shift change by guards, around 30 members of the group moved to block the main parking lot used by employees of the prison at around 9PM. Harvey says they intended to use “peaceful protest in the civil disobedience mode” to disrupt Wyatt’s operations for a few hours.

“We worked really hard to create the right atmosphere for the event,” he said. “And that atmosphere was committed and serious, but also peaceful and positive.”

But around 9:45, events took a chaotic and frightening turn. Footage captured by one attendee shows the line of protestors sitting peacefully outside of Wyatt’s gates while being led in a call-and-response chant by a man with a megaphone. Without warning, a pickup truck takes a sharp right turn into the line of protestors, nearly running a number of them over before gunning the engine and driving through the crowd.

On Thursday, Wyatt administrators identified the driver of the truck as Captain Thomas Woodworth, a senior officer at the facility who was subsequently placed on administrative leave “pending the results of the independent investigation being conducted by the Rhode Island State Police, and the Wyatt’s internal investigation.” On Friday afternoon, Woodworth resigned.

Harvey says that after Woodworth drove into the crowd, officers from the facility poured into the parking lot and used pepper spray against the protestors. Of the five people who were hospitalized following the incident, two were treated for injuries related to Woodworth’s attack, and three others for pepper spray-related injuries – including one woman in her 70s.

In a statement, the ACLU of Rhode Island described the truck attack and subsequent use of pepper spray against the crowd as “an attempt to chill the exercise of First Amendment rights by hundreds of peaceful protestors” and “completely unacceptable uses of force.”

In 2017, Rhode Island was one of several states where lawmakers introduced legislation that would prevent drivers who strike protestors with their vehicle from being held liable. Rhode Island’s proposed law, HB5690, was introduced by three Republicans and two Democrats but ultimately died in committee.

Wyatt has a troubled history and has long been controversial in Rhode Island. The facility is located in Central Falls, a city that contains a large portion of the state’s immigrants and which census figures list as being 63.8% Hispanic or Latino. In 2009, the ACLU of Rhode Island filed suit against Wyatt on behalf of the family of Jason Ng, a 34-year-old Chinese man who died in custody after being denied medical care for a broken spine and liver cancer. The family received a multi-million dollar settlement in 2012.

Earlier this summer, in response to pressure by local lawmakers and civic organizations, Wyatt’s board of directors voted to terminate the facility’s contract with ICE and ordered the warden to return all immigrants detained there to the agency’s custody within 7 days. Furious over the loss of more than $130 million dollars that would result from the board’s decision, bondholders for the private facility sued to keep the contract intact.

“From the perspective of the Never Again movement, looking to shut down ICE and stop the deportation machine, the place where that intersects in Rhode Island is at Wyatt,” said Harvey. “There are more than 100 ICE detainees at that facility, and it’s the locus for the national immigration conversation here.”

In a Twitter post, Never Again Action described Woodworth’s resignation as a “first step” but called for Wyatt to be shut down and for people detained there to be released.

“If this is what he’s willing to do to a crowd of mostly white protestors in front of cameras, just imagine what’s happening inside that prison where no one’s watching,” said Harvey.

A Federal Court Sounds the Alarm on the Privacy Harms of Face Recognition Technology

The court ruled that a lawsuit alleging that Facebook is violating Illinois’ biometric privacy law can proceed.

On Thursday, the U.S. Court of Appeals for the Ninth Circuit became the first appellate court in the nation to directly address the privacy harms posed by face recognition technology. The decision is a significant advance in the fight against the threats of face surveillance, sounding the alarm on the potential for this technology to seriously violate people’s privacy.

In Patel v. Facebook, a group of Facebook users from Illinois allege that Facebook violated the Illinois Biometric Information Privacy Act (BIPA) by using face recognition technology on the users’ photographs without their knowledge and consent. BIPA is the oldest and strongest biometric privacy law in the country, requiring companies to obtain informed consent before collecting a person’s biometric identifiers, including face recognition scans. Importantly, the law provides individuals in Illinois with a right to sue for damages if a company has violated their rights.

Facebook’s primary argument in the case was that in order to establish “standing” to sue, the plaintiffs should have to demonstrate some concrete injury beyond a violation of BIPA's requirement of notice and consent. As we argued in an amicus brief last year, surreptitious use of face recognition technology does cause harm, by subjecting people to unwanted tracking and by leaving them vulnerable to data breaches and invasive surveillance. Given the rapid proliferation of face surveillance technology in recent years, it is critical that Illinoisans are able to enforce BIPA’s protections against unwanted collection of their biometric information. A requirement that a person must demonstrate monetary loss or similar injury in order to sue would seriously undermine BIPA’s intent to safeguard against abusive collection of biometric data in the first place.

In Thursday’s ruling the Ninth Circuit agreed, holding that “the development of a face template using facial-recognition technology without consent (as alleged here) invades an individual’s private affairs and concrete interests.” 

To reach that conclusion, the court looked not only to the long-recognized entitlement of people to sue private parties over violations of common-law privacy rights, but also to evolving Fourth Amendment protections against law enforcement surveillance. This includes the landmark decision in Carpenter v. United States, an ACLU case about police access to cell phone location data decided last year. As the Ninth Circuit explained, drawing from language in Carpenter, “[i]n its recent Fourth Amendment jurisprudence, the Supreme Court has recognized that advances in technology can increase the potential for unreasonable intrusions into personal privacy… As in the Fourth Amendment context, the facial-recognition technology at issue here can obtain information that is ‘detailed, encyclopedic, and effortlessly compiled,’ which would be almost impossible without such technology.”

The Ninth Circuit’s ruling is important not only because it explains why surreptitious use of face recognition by corporations harms people’s privacy interests, but also because it puts law enforcement on notice that recent Supreme Court cases regulating other forms of electronic surveillance have something to say about face surveillance technology.

Indeed, the potential for this technology to enable the government to pervasively identify and track anyone (and everyone) as they go about their daily lives is one of the reasons the ACLU is urging lawmakers across the country to halt law enforcement use of face surveillance systems. This decision puts both corporations and law enforcement agencies on notice that face surveillance technology poses unique risks to people’s privacy and safety.

The Ninth Circuit’s ruling also demonstrates the importance of privacy laws including strong private rights of action, affirming people’s right to turn to the federal courts for redress when their rights have been violated. Without a right to sue, privacy guarantees will often prove ephemeral. As state legislatures and Congress move forward on consumer privacy legislation, they should follow Illinois’ lead by including private rights of action in these statutes.

Over 132,400 Opposed Trump’s Anti-Trans Health Care Plan

A proposed rule would undermine protections for transgender people and others facing discriminatory denials of health care and insurance coverage.

The Trump Administration has shown it will stop at nothing to undermine access to health care for marginalized communities. Most recently, the Administration has proposed to undermine critical protections against sex discrimination in Section 1557 of the Affordable Care Act, the Health Care Rights Law. Instead of combatting discrimination in accessing health care and insurance coverage, the Administration is looking for any opportunity to weaken the Health Care Rights Law’s protections, which have been life saving for many transgender and non-binary people.

Under the Trump Administration, the Department of Health and Human Services (HHS) has abandoned its duty to fight against discrimination in health care. It stopped defending existing regulations in a lawsuit attacking protections for transgender individuals and people who have obtained abortions. HHS then turned around and cited that very lawsuit as a reason for changing the regulations. But HHS cannot use its failure to defend current protections as a reason to gut them.

The proposed rule removes explicit protections for transgender, non-binary, and gender nonconforming people, as well as for people seeking, or who have obtained, services related to pregnancy, childbirth, and abortion. The Administration has made clear that a central goal of the proposed changes is to excise transgender people from the protections of the Health Care Rights Law. Though their intent has been to “erase” transgender people, the Administration can neither erase transgender people from existing statutory protections nor exclude them from society. 

Case after case has confirmed that transgender people are protected under the Health Care Rights Law—and that is something the Administration cannot change even if this rule is finalized.

This isn’t just about definitions, though. This rule is yet another attempt by the Trump administration to undermine our nation’s antidiscrimination laws. The proposed rule would also: eliminate protections ensuring that people who have limited English proficiency are aware of their health care rights; narrow the list of health insurance providers covered by the Health Care Rights Law and prohibited from discriminating based on race, national origin, age, disability, or sex; and give religiously-affiliated health care institutions a broad license to discriminate on the basis of sex.

Even though one in six hospital beds in the United States is in a Catholic hospital, and the number of religious health care providers is only growing, the Administration wants to lift prohibitions on religious health care institutions discriminating based on a patient’s sex.

The proposed rule continues the Trump Administration’s mission to undermine access to health care for marginalized communities. So far they want to deprive people of coverage for contraceptives, decimate family planning services, dramatically expand the ability of health care institutions and workers to refuse to provide medical services, and penalize access to health care by immigrant women and children.

Transgender people already face threats of violence and discrimination in all aspects of their lives and the Trump Administration is inviting more. The Administration is intent on emboldening discriminatory and dangerous denials of care for transgender individuals. They have already banned transgender members of the military from openly serving and accessing certain critical medical procedures, reversed positions as to whether federal law protects transgender people from workplace discrimination, and proposed allowing taxpayer-funded shelters to turn away transgender people experiencing homelessness.

Despite these attacks by the Trump Administration we will continue to fight to ensure equal access to health care and coverage, free from discriminatory treatment or denials. For all these reasons, tens of thousands of people are telling HHS to abandon the proposed rule, and to keep the current Health Care Rights Law regulations in place – and I hope you join us in doing so.

We have Until Aug 13 to Oppose Trump’s Anti-Trans Health Care Plan

A proposed rule would undermine protections for transgender people and others facing discriminatory denials of health care and insurance coverage

The Trump Administration has shown it will stop at nothing to undermine access to health care for marginalized communities. Most recently, the Administration has proposed to undermine critical protections against sex discrimination in Section 1557 of the Affordable Care Act, the Health Care Rights Law. Instead of combatting discrimination in accessing health care and insurance coverage, the Administration is looking for any opportunity to weaken the Health Care Rights Law’s protections, which have been life saving for many transgender and non-binary people.

Under the Trump Administration, the Department of Health and Human Services (HHS) has abandoned its duty to fight against discrimination in health care. It stopped defending existing regulations in a lawsuit attacking protections for transgender individuals and people who have obtained abortions. HHS then turned around and cited that very lawsuit as a reason for changing the regulations. But HHS cannot use its failure to defend current protections as a reason to gut them.

Tell HSS: Don’t Roll Back Trans Rights

The proposed rule removes explicit protections for transgender, non-binary, and gender nonconforming people, as well as for people seeking, or who have obtained, services related to pregnancy, childbirth, and abortion. The Administration has made clear that a central goal of the proposed changes is to excise transgender people from the protections of the Health Care Rights Law. Though their intent has been to “erase” transgender people, the Administration can neither erase transgender people from existing statutory protections nor exclude them from society. 

Case after case has confirmed that transgender people are protected under the Health Care Rights Law—and that is something the Administration cannot change even if this rule is finalized.

This isn’t just about definitions, though. This rule is yet another attempt by the Trump administration to undermine our nation’s antidiscrimination laws. The proposed rule would also: eliminate protections ensuring that people who have limited English proficiency are aware of their health care rights; narrow the list of health insurance providers covered by the Health Care Rights Law and prohibited from discriminating based on race, national origin, age, disability, or sex; and give religiously-affiliated health care institutions a broad license to discriminate on the basis of sex.

Even though one in six hospital beds in the United States is in a Catholic hospital, and the number of religious health care providers is only growing, the Administration wants to lift prohibitions on religious health care institutions discriminating based on a patient’s sex.

The proposed rule continues the Trump Administration’s mission to undermine access to health care for marginalized communities. So far they want to deprive people of coverage for contraceptives, decimate family planning services, dramatically expand the ability of health care institutions and workers to refuse to provide medical services, and penalize access to health care by immigrant women and children.

Transgender people already face threats of violence and discrimination in all aspects of their lives and the Trump Administration is inviting more. The Administration is intent on emboldening discriminatory and dangerous denials of care for transgender individuals. They have already banned transgender members of the military from openly serving and accessing certain critical medical procedures, reversed positions as to whether federal law protects transgender people from workplace discrimination, and proposed allowing taxpayer-funded shelters to turn away transgender people experiencing homelessness.

Despite these attacks by the Trump Administration we will continue to fight to ensure equal access to health care and coverage, free from discriminatory treatment or denials. For all these reasons, tens of thousands of people are telling HHS to abandon the proposed rule, and to keep the current Health Care Rights Law regulations in place – and I hope you join us in doing so.

You can submit a comment opposing this roll back of health care protections until August 13.

This County Criminalized Students for Bad Grades – Until Now

Today, we filed a landmark settlement that will end the relationship between the probation department and school districts in Riverside.

Since 2001, the Riverside County, California probation department has been needlessly funneling young people struggling with grades, behavior, trauma, and mental health into the criminal justice system.

This direct line to the criminal system is the product of a partnership between local school districts and the county probation department called the Youth Accountability Team (YAT). Instead of counselors or other school and community-based supports stepping in to support and help these kids, school staff would effectively turn students over to the criminal justice system. Black and Latinx youth in particular are more likely to be referred to the criminal system through this misguided program.

Thankfully, after more than a decade of placing children on probation, this is all changing. Today, we filed a landmark settlement with the federal district court that, when approved, will end the relationship between the probation department and school districts in Riverside.

The settlement follows a lawsuit filed last year by the ACLU Foundation, together with the National Center for Youth Law and the law firm of Sheppard, Mullin, Richter, and Hampton. Through the YAT program, young people without legal representation entered a term of probation believing that they were avoiding more serious consequences in juvenile court, when that was often not the case. Many of these children experienced probation supervision even though they had not committed a crime. To make matters worse, the YAT program — originally intended to help divert kids from the criminal system — utilized outdated, unhelpful approaches, and violated their rights. The probation department subjected students to onerous terms like drug testing, surprise searches of their home and person, and a lengthy list of rules and restrictions.

As in many areas of juvenile justice, research on adolescent development shows that traditional models of juvenile probation are ineffective and even harmful to young people. Adults who have spent time with young people likely recognize what the research tells us: that youths have a hard time remembering and complying with a long list of rules, that long term consequences are often overshadowed by short term influences and incentives, and that they have a keen sense for fairness. These traits are a part of adolescent maturation and a product of healthy brain development. They also mean that young people are set up to fail when a probation department assigns them lengthy lists of rules and restrictions with zero-tolerance consequences.

Now, through the settlement, the county will no longer accept referrals for things that are not and should not be treated as crimes, such as school discipline problems and status offenses like truancy. Instead, these will be addressed through schools and community resources. The county is committing to reinvest millions of dollars in community organizations that can better address the challenges young people face.

When young people accused of a crime do have contact with the probation department, they will now face a system that respects their rights and aims to meet them where they are, providing positive support to get them back on the right track. Young people who are recommended for diversion will have an appointed defense lawyer from referral until they exit the program. The probation department will improve transparency and communication with families, and remove rules and restrictions that violated the constitutional rights of young people. Across the board, the department will now focus on providing support and incentives to help young people make the right decisions instead of focusing on compliance and escalating consequences. The probation department is also changing its policies and practices by working with experts to provide training to all officers on this new approach. To ensure the program’s success and foster accountability, they will track data to evaluate its progress and impact on young people of color.

The lawsuit we filed a year ago aimed to end a program that was wrong on the law, wrong on policy, and wrong for young people. This week’s settlement will not only end these practices, but provide a transformative, youth-centered framework for Riverside County to become a model in juvenile justice — not only in California, but nationwide.

Follow the Case

Trans people led the fight against HB2 in North Carolina. And we’re winning.

Transgender people in North Carolina cannot be banned from facilities based on their gender under H.B. 2 replacement law.

It’s been more than three years since North Carolina lawmakers passed House Bill 2, the hateful North Carolina law that compromised the ability of transgender people like me to safely navigate our daily lives.

As the lead plaintiff in the lawsuit the ACLU and Lambda Legal filed to stop this measure, I’ve spent the last three years fighting alongside LGBTQ North Carolinians and others to mitigate the harm caused by H.B. 2 and its discriminatory replacement law, H.B. 142.

Yesterday, we secured an important victory: a federal court ordered that neither of these laws can be used to bar transgender people from North Carolina restrooms that match who we are.

This victory belongs to the trans and non-binary people in North Carolina who continue to lead the fight for justice in North Carolina and beyond.

We reached this settlement, known as a consent decree, with Governor Roy Cooper, who officially agrees with us that trans people in North Carolina have the right to use the correct public restrooms for their gender. But the leaders of the General Assembly, who passed H.B. 2 and H.B. 142, refused to sign on.

After years of managing the anxiety of H.B. 2 and fighting so hard, I am relieved that we finally have a court order to protect transgender people from being punished under these laws.

Being able to use facilities that match our gender is a basic necessity for participating in public life and being treated as full members of society. It is not a luxury.

The nationwide outcry that followed these discriminatory laws sent a message that we still have to amplify now: Trans and non-binary people belong in public spaces. We belong in North Carolina. We belong everywhere.

Yesterday’s order provides some clarity and relief for those of us who have been suffering under H.B. 2 and H.B. 142 for years. It is an important victory but not a complete one. Local protections for LGBTQ people are still banned under state law and so many members of our community, particularly Black and Brown trans and non-binary people, continue to face violence, harassment, and discrimination simply because of who we are.

This October, the Supreme Court is looking at the case of Aimee Stephens, who was fired for being trans. The Trump administration has attempted to roll back the rights of trans people at every turn. Yet another Black trans woman, Denali Berries Stuckey, was killed this week in South Carolina. My community faces violence every day.

While a part of this court fight in North Carolina may be ending, our fight for full justice continues.

Arkansas Wants to Make Sure You Know ‘Almonds Don’t Lactate’

An Arkansas law censoring plant-based products isn't just absurd and unnecessary, it's unconstitutional.

The state of Arkansas thinks you’re confused about whether a veggie burger comes from a cow. In fact, it thinks you’re so confused that it passed a law making it illegal for companies to use words like “meat,” “roast,” and “sausage” to describe products that are not made from animals. Under the law, it doesn’t matter if those words are modified by “vegan,” “veggie,” or “plant-based.”

Rather than focusing on genuine consumer concerns — such as rising healthcare and education costs — Arkansas politicians have decided to take on an imaginary crisis: confusing a veggie burger for a hamburger, or almond milk for cow’s milk.

Why? To “protect the agricultural producers in the state,” one of the law’s proponents admitted.

Not only is Arkansas’ latest law absurd and unnecessary, it’s also unconstitutional. It violates the First Amendment by censoring truthful speech in order to protect the economic interests of the meat industry. Together with the Good Food Institute, the Animal Legal Defense Fund, and the ACLU of Arkansas, we filed a lawsuit today on behalf of Tofurky challenging the law.

From oat milk to meatless burgers, consumers are increasingly interested in alternatives to food products derived from live animals. Right now, most of those alternatives are made from plants. But companies are also investing in technologies that cultivate meat from animal cells, effectively allowing them to make beef without the cow. The meat and dairy industries are worried about these new competitors, identifying them as one of the “major challenges” the animal meat industry faces in 2018. But instead of competing in the free market, industry groups have enlisted friendly state legislatures and regulators to give them an upper hand. Over the past year, states throughout the country, including Missouri, Mississippi, Louisiana, and South Dakota, passed a new wave of meat censorship laws that prohibit companies from using terms like “veggie bacon,” “cauliflower rice,” or “almond milk.”

The laws’ proponents insist that they’re just trying to prevent consumers from being misled. One former FDA commissioner memorably declared that almond milk is a contradiction in terms because “almonds don’t lactate.” But consumers know that, of course, and it’s absurd to suggest otherwise. As Republican Senator Mike Lee explained, “No one buys almond milk under the false illusions that it came from a cow. They buy almond milk because it didn’t come from a cow.”

Businesses often rely on figurative language to help communicate information about the flavor, texture, or appearance of their products. Consumers know that “peanut butter” is not made from cows, but the product’s name efficiently informs them that it spreads like butter. “Veggie bacon” is appealing to consumers who enjoy the distinctive taste, smell, and crunch of conventional bacon, but who prefer plant-based foods for any number of personal reasons. If companies are forced to describe their products as “savory plant-based protein,” consumers are likely to be much more confused about exactly what it is they’re putting on their plates. And that’s the real purpose of these label censorship laws: creating confusion to protect favored economic interests.

But the First Amendment does not allow the government to censor speech in order to pick winners and losers in the marketplace. After all, consumers rely on the free exchange of truthful information to make their own choices. As the Supreme Court put it in a landmark decision recognizing constitutional protection for commercial speech, “[s]o long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.”

In other words, when the government plays word games to prevent businesses from communicating truthfully about their products, consumers are ultimately the ones who suffer.

Arkansas’ law, and similar laws in other states, must be struck down.

Thousands of Voices Are Telling the Supreme Court: Don’t Roll Back LGBTQ Rights

Businesses, women CEOs, civil rights organizations, Republicans tell the Supreme Court to protect LGBTQ employees like Aimee Stephens and Don Zarda.

President Trump has told the Supreme Court it should be legal to fire someone just because they’re LGBTQ.  The President may be a bully, but he’s just one voice.  Today, more than 2,000 voices from across the country joined together to tell the Supreme Court:  Don’t roll back our rights.

The message came in the form of friend-of-the-court briefs—nearly 50 in all—filed in a trio of cases involving workers who lost their jobs because of who they are.  Aimee Stephens, a funeral director in Michigan represented by the ACLU, was fired for being transgender.  Donald Zarda, a skydiving instructor in New York represented by the ACLU as co-counsel, was fired for being gay, as was Gerald Bostock, a child welfare services coordinator in Georgia.

For decades, federal law has protected workers like Aimee, Don, and Gerald from losing their jobs because they are lesbian, gay, bisexual, or transgender, but the Trump administration has asked the Supreme Court to reverse years of progress.  Today’s filings show why the Trump administration is wrong—and why we must win.  Here are some of the highlights:

There’s widespread consensus that the law already protects LGBTQ people, and the Supreme Court should say so.

  • Briefs from across the political spectrum—from labor unions including the AFL-CIO and the SEIU to political conservatives including former Bush administration officials—agree that federal law bars firing workers because they are LGBTQ.  Former Chair of the Republican National Committee Kenneth B. Mehlman penned an op-ed explaining why LGBTQ rights are consistent with conservative values:  All of us need a way to provide for our families, and all of us should have the freedom to compete for jobs based on what we can contribute, not who we are.
  • Religious organizations and faith leaders, including the General Synod of the United Church of Christ, the Central Conference of American Rabbis, and Muslims for Progressive Values, filed a brief highlighting their shared core religious belief in the dignity and worth of all individuals, including people who are LGBTQ.
  • More than 150 Members of Congress filed a brief explaining that discrimination against people because they are LGBTQ is prohibited under federal law, even though Congress has not yet enacted legislation that would say so expressly.

LGBTQ people aren’t the only ones who benefit from robust application of our nation’s antidiscrimination laws—or who would be harmed if the Supreme Court takes those protections away.

  • Businesses from Apple to Zillow filed a brief arguing that that affirming protections for LGBTQ workers would strengthen their ability to recruit and retain top talent, to generative innovative ideas by drawing on a greater breadth of perspectives, and to attract and better serve a diverse customer base.
  • Over 100 states, cities, counties, and mayors filed a brief explaining how workplace discrimination threatens people’s ability to meet basic needs like housing and healthcare, forcing local governments to fill the gap when community members cannot provide for themselves.
  • Women CEOs and other C-suite executives, including Sheryl Sandberg and Shonda Rhimes, filed a brief showing that, if employers are allowed to make decisions based on sex stereotypes, that would limit opportunities for all women to advance in the workplace.

Rolling back the clock on workplace protections would have devastating effects.

  • The American Medical Association and other national medical associations filed a brief demonstrating that workplace discrimination harms the health of LGBTQ people.
  • Civil rights organizations filed a brief spotlighting the particular need for LGBTQ people of color, who suffer far higher rates of job discrimination than their white counterparts, to remain protected in the workplace.
  • Anti-poverty organizations filed a brief showing the distinctive harms of anti-LGBTQ discrimination not only on workers, but also on their children, the LGBTQ community, and society at large.

It’s no surprise that workers like Aimee, Don, and Gerald have their livelihoods on the line this fall.  But as today’s filings make clear, the stakes couldn’t be higher—for all of us.

SEE ALL OF THE BRIEFS

The full list of the briefs, including links to the full text, will be updated as the briefs are filed.

Arkansas Politicians Continue to Push Abortion out of Reach. So We Sued. Again.

As long as Arkansas politicians keep passing unconstitutional laws, the ACLU will keep taking them to court.

Across the country, extremist politicians emboldened by President Trump’s agenda have passed a tsunami of abortion bans and restrictions, each one more cruel and outlandish than the last. Elected officials in Arkansas have the shameful distinction of having been at the forefront of this nationwide crusade to criminalize abortion, and the ACLU has gone to court again and again to block these laws from taking effect.

This year, Arkansas politicians sank to a new low with a trifecta of unconstitutional laws designed to eliminate access to safe and legal abortion in Arkansas — and once again, we’re taking them to court. The ACLU, the ACLU of Arkansas, and Planned Parenthood are suing on behalf of Little Rock Family Planning Services, Planned Parenthood Great Plains, and two physician providers to stop these laws from taking effect.

Instead of taking steps to improve health care for Arkansas families, Arkansas legislators are again targeting abortion providers with medically unnecessary restrictions intended to close clinics and push abortion even further out of reach. In the state with the third highest maternal mortality rate in the country, it is shameful that Arkansas politicians are spending their time passing blatantly unconstitutional laws masquerading as an attempt to protect people’s health. The laws do nothing to improve the safety of abortion (which is already incredibly safe) and instead will decimate the ability of people to get care in a state that is already down to only three abortion providers.

Unfortunately, Arkansas is not alone in attempting to shut down clinics in order to prevent people from getting the care they need. Our neighbor, Missouri, is down to just one clinic, and the state is using bogus restrictions to shut it down. And five other states have only one clinic providing abortion left.

Arkansas legislators didn’t stop there. They also passed two different abortion bans that directly violate Roe v. Wade. The first bans abortions at 18 weeks of pregnancy, even if the woman’s health is in danger. The second bans abortion based on a person’s motivation for seeking one. This would turn patients into suspects, health providers into investigators, and clinics into interrogation rooms. They’ve tried to disguise this ban as an effort to stop discrimination against people with disabilities, but the ban does nothing to actually improve the lives of people living with disabilities.   

This isn’t the Arkansas we want to live in. Our communities are strongest when families can access medical care, make their own personal decisions, and are treated with dignity — regardless of when or whether they decide to become parents.

Our lawsuit notes that the two abortion bans (Act 493 and Act 619) stand in direct conflict with the U.S. Supreme Court’s ruling in Roe v. Wade by outright banning abortion prior to viability. The third law, Act 700, also violates the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt by imposing significant burdens on abortion access with no medical or health benefit.

Even more fundamentally, these laws are antithetical to our values and to the basic principle of personal autonomy. The decision about whether and when to become a parent is one of the most deeply personal decisions anyone can make. Politicians should never have the right to make that decision for us.

Supreme Court Undermines Religious Neutrality In Permitting Giant Governmental Cross

The decision ignores our constitutional commitment to official religious neutrality.

Today, the Supreme Court announced that a governmental display of a 40-foot-tall Latin cross as a war memorial for all veterans does not violate the Establishment Clause of the First Amendment. The decision ignores our constitutional commitment to official religious neutrality and is a slap in the face to non-Christian veterans. There is, however, a small silver lining: The opinion itself was narrow, making clear that the ruling is not an invitation for government officials to erect new religious displays.

In American Legion v. American Humanist Association, the court concluded that the Bladensburg Cross — originally built to honor a Maryland county’s World War I dead — is constitutional for a combination of reasons, including its nearly hundred-year history and the court’s belief that the cross has somehow taken on an “added secular meaning when used in World War I memorials.” But there are several flaws in the court’s reasoning.

First, in his opinion for the majority, Justice Alito cites the rows of white crosses that memorialize fallen American service members in World War I cemeteries overseas. Yet those crosses are tied to the individual faith of each soldier. Notably, the graves of Jewish service members in those cemeteries are marked with the Star of David, not a Latin cross. That’s because the Latin cross is inextricably linked to the Christian belief in the crucifixion of Jesus, the resurrection, and the promise of eternal life—a point emphasized in friend-of-the-court briefs filed by both the Baptist Joint Committee and the American Jewish War Veterans for the United States of America. As Justice Ginsburg explains in her dissent, the Latin cross is an “exclusively Christian symbol.” It is “not emblematic of any other faith,” and it certainly has “never shed its Christian character.”

Second, the Bladensburg Cross does not stand as a memorial to fallen World War I soldiers alone. Although the cross was erected in the 1920s on private land as a World War I memorial, the Maryland-National Capital Park and Planning Commission went out of its way in 1961 to acquire the cross and the land on which it sits — for the purpose of preserving the monument and, purportedly, to address traffic-safety concerns. But the Commission wasn’t satisfied with merely maintaining the cross’s connection to World War I; instead, it spent $100,000 renovating the monument, and then, in 1985, held a religious ceremony featuring prayer by a Catholic priest to rededicate the cross to veterans of all wars.

Finally, a constitutional violation shouldn’t be granted safe harbor merely because it has endured over time. The Bladensburg Cross was privately built and owned, and could have stood forever, undisturbed and without controversy. When individuals express religious beliefs or display religious symbols on private property — however prominently — it is perfectly constitutional. That changes, though, once the government decides to meddle with private religious expression by taking ownership over it. Here, the cross became a symbol of official religious preference for Christians when the Commission got involved. That the Bladensburg Cross has remained in place for so long, displayed and maintained by the government, only compounds and amplifies this message of religious exclusion.

Nevertheless, the court’s misguided focus on the monument’s age and the meaning of the cross as it relates to World War I necessarily limits the reach of today’s ruling. The decision merely permits the display of this specific monument given the unique circumstances surrounding it. It is not a license for government officials to put up religious symbols whenever and wherever they want. As the court’s majority emphasized, “retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.”

Those who value the separation of church and state must remain vigilant. In rewriting the meaning of the Latin cross and treating it as a secular icon, even in these limited circumstances, the court has eroded fundamental constitutional principles. If the government can redefine the most recognizable and sacred of religious symbols and practices, and then co-opt them for official purposes, the Establishment Clause’s ban on government promotion of religion — and government preference for one faith — could soon become a relic of the past.

Homan’s Appointment as Trump ‘Border Czar’ Will Continue the Administration’s Cruel Border Policies

Homan was one of the architects of Trump’s family separation policy.

President Trump announced today that former Immigration and Customs Enforcement (ICE) director Thomas Homan will return to his administration as “border czar,” a new post he described during an interview with “Fox & Friends.”

The news comes immediately after we’ve learned even more shocking revelations about the treatment of migrant families and children in U.S. custody, including along the border. But Homan’s appointment will likely intensify the cruelty of the administration’s border policies.

Homan was one of three administration officials, including current Department of Homeland Security (DHS) Secretary Kevin McAleenan, who signed a memo to now-former  Secretary Kirstjen Nielsen which paved the way for the family separation policy. The memo stated that DHS could “permissibly direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted.”  It also recommended that the department “pursue prosecution of all amenable adults who cross our border illegally, including those presenting with a family unit, between ports of entry.”  Thousands of parents and children continue to suffer the consequences of this viciously cruel decree.

While Homan was the one who recommended the policy of family separation, he tried to blame everybody but himself. He claimed that “you’d have to put the blame on the parents” for family separation and echoed Trump’s false talking point that Democrats in Congress were the ones responsible for the policy. In reality, it was a decision made and put into practice by none other than the Trump administration itself.

Under Homan’s leadership, ICE ramped up its arrests; targeted so-called sanctuary communities; pushed for extending detentions of pregnant women and presided over two dozen deaths in custody; retaliated against immigrant rights activists; arrested unsuspecting people who showed up to U.S. Citizenship and Immigration Services offices for routine interviews; and apprehended people going to court hearings, including survivors of domestic violence.

ICE also showed a pattern of dishonesty under his leadership, systematically ignoring clear violations of basic detention standards at their brutal detention facilities and even going so far as to mislead a judge in one case in order to accelerate efforts to detain and deport Iraqi-Americans.

Homan defended ICE’s growing number of arrests of people without criminal records by insisting that all immigrants without immigration status ”[s]hould be uncomfortable. You should look over your shoulder and you need to be worried,” he said. Public officials who adopt so-called sanctuary policies to advance their communities’ public safety, Homan said, should be arrested.

Since leaving ICE, Homan joined the Fox News Channel as a contributor, where he has continued to push anti-immigrant messages to a broader public and the network’s number one fan in the White House. On Fox, Homan doubled down on his rhetoric, boasting that “there should be fear in the immigrant community,” and urging the president to close the U.S.-Mexican border.

While it is still unclear what Homan’s new position entails, his record should disqualify him from any position in the federal government—and particularly one that will once again put him in a position to subject children and families to unconscionable treatment.  Congress must continue to use its oversight power to hold Homan accountable for anti-immigrant abuse.

An Army of Robot Surveillance Guards Is Coming

Policymakers need to confront the reality that millions of AI watchers could soon watch over each of us, constantly judging and shaping our behavior.

We are surrounded by surveillance cameras that record us at every turn. But for the most part, while those cameras are watching us, no one is watching what those cameras observe or record because no one will pay for the armies of security guards that would be required for such a time-consuming and monotonous task.

But imagine that all that video were being watched — that millions of security guards were monitoring them all 24/7. Imagine this army is made up of guards who don’t need to be paid, who never get bored, who never sleep, who never miss a detail, and who have total recall for everything they’ve seen. Such an army of watchers could scrutinize every person they see for signs of “suspicious” behavior. With unlimited time and attention, they could also record details about all of the people they see — their clothing, their expressions and emotions, their body language, the people they are with and how they relate to them, and their every activity and motion.

That scenario may seem far-fetched, but it’s a world that may soon be arriving. The guards won’t be human, of course — they’ll be AI agents.

Today we’re publishing a report on a $3.2 billion industry building a technology known as “video analytics,” which is starting to augment surveillance cameras around the world and has the potential to turn them into just that kind of nightmarish army of unblinking watchers.

Using cutting-edge, deep learning-based AI, the science is moving so fast that early versions of this technology are already starting to enter our lives. Some of our cars now come equipped with dashboard cameras that can sound alarms when a driver starts to look drowsy. Doorbell cameras today can alert us when a person appears on our doorstep. Cashier-less stores use AI-enabled cameras that monitor customers and automatically charge them when they pick items off the shelf.

In the report, we looked at where this technology has been deployed, and what capabilities companies are claiming they can offer. We also reviewed scores of papers by computer vision scientists and other researchers to see what kinds of capabilities are being envisioned and developed. What we found is that the capabilities that computer scientists are pursuing, if applied to surveillance and marketing, would create a world of frighteningly perceptive and insightful computer watchers monitoring our lives.

Cameras that collect and store video just in case it is needed are being transformed into devices that can actively watch us, often in real time. It is as if a great surveillance machine has been growing up around us, but largely dumb and inert — and is now, in a meaningful sense, “waking up.”

%3Ciframe%20allowfullscreen%3D%22%22%20frameborder%3D%220%22%20height%3D%22315%22%20src%3D%22https%3A%2F%2Fwww.youtube.com%2Fembed%2F1dDhqX3txf4%3Fautoplay%3D1%26autoplay%3D1%26version%3D3%22%20thumb%3D%22files%2Fweb19-robots-560x315.jpg%22%20width%3D%22560%22%3E%3C%2Fiframe%3E Privacy statement. This embed will serve content from youtube.com.

Computers are getting better and better, for example, at what is called simply “human action recognition.” AI training datasets include thousands of actions that computers are being taught to recognize — things such as putting a hat on, taking glasses off, reaching into a pocket, and drinking beer.

Researchers are also pushing to create AI technologies that are ever-better at “anomaly detection” (sounding alarms at people who are “unusual,” “abnormal,” “deviant,” or “atypical”), emotion recognition, the perception of our attributes, the understanding of the physical and social contexts of our behaviors, and wide-area tracking of the patterns of our movements.

Think about some of the implications of such techniques, especially when combined with other technologies like face recognition. For example, it’s not hard to imagine some future corrupt mayor saying to an aide, “Here’s a list of enemies of my administration. Have the cameras send us all instances of these people kissing another person, and the IDs of who they’re kissing.” Government and companies could use AI agents to track who is “suspicious” based on such things as clothing, posture, unusual characteristics or behavior, and emotions. People who stand out in some way and attract the attention of such ever-vigilant cameras could find themselves hassled, interrogated, expelled from stores, or worse.

Many or most of these technologies will be somewhere between unreliable and utterly bogus. Based on experience, however, that often won’t stop them from being deployed — and from hurting innocent people. And, like so many technologies, the weight of these new surveillance powers will inevitably fall hardest on the shoulders of those who are already disadvantaged: people of color, the poor, and those with unpopular political views.

We are still in the early days of a revolution in computer vision, and we don’t know how AI will progress, but we need to keep in mind that progress in artificial intelligence may end up being extremely rapid. We could, in the not-so-distant future, end up living under armies of computerized watchers with intelligence at or near human levels.

These AI watchers, if unchecked, are likely to proliferate in American life until they number in the billions, representing an extension of corporate and bureaucratic power into the tendrils of our lives, watching over each of us and constantly shaping our behavior. In some cases, they will prove beneficial, but there is also a serious risk that they will chill the freedom of American life, create oppressively extreme enforcement of petty rules, amplify existing power disparities, disproportionately increase the monitoring of disadvantaged groups and political protesters, and open up new forms of abuse.

Policymakers must contend with this technology’s enormous power. They should prohibit its use for mass surveillance, narrow its deployments, and create rules to minimize abuse.

Read the full report here.

This $3.2 Billion Industry Could Turn Millions of Surveillance Cameras Into an Army of Robot Security Guards

What could possibly go wrong?

We are surrounded by surveillance cameras that record us at every turn. But for the most part, while those cameras are watching us, no one is watching what those cameras observe or record because no one will pay for the armies of security guards that would be required for such a time-consuming and monotonous task.

But imagine that all that video were being watched — that millions of security guards were monitoring them all 24/7. Imagine this army is made up of guards who don’t need to be paid, who never get bored, who never sleep, who never miss a detail, and who have total recall for everything they’ve seen. Such an army of watchers could scrutinize every person they see for signs of “suspicious” behavior. With unlimited time and attention, they could also record details about all of the people they see — their clothing, their expressions and emotions, their body language, the people they are with and how they relate to them, and their every activity and motion.

That scenario may seem far-fetched, but it’s a world that may soon be arriving. The guards won’t be human, of course — they’ll be AI agents.

Today we’re publishing a report on a $3.2 billion industry building a technology known as “video analytics,” which is starting to augment surveillance cameras around the world and has the potential to turn them into just that kind of nightmarish army of unblinking watchers.

Using cutting-edge, deep learning-based AI, the science is moving so fast that early versions of this technology are already starting to enter our lives. Some of our cars now come equipped with dashboard cameras that can sound alarms when a driver starts to look drowsy. Doorbell cameras today can alert us when a person appears on our doorstep. Cashier-less stores use AI-enabled cameras that monitor customers and automatically charge them when they pick items off the shelf.

In the report, we looked at where this technology has been deployed, and what capabilities companies are claiming they can offer. We also reviewed scores of papers by computer vision scientists and other researchers to see what kinds of capabilities are being envisioned and developed. What we found is that the capabilities that computer scientists are pursuing, if applied to surveillance and marketing, would create a world of frighteningly perceptive and insightful computer watchers monitoring our lives.

Cameras that collect and store video just in case it is needed are being transformed into devices that can actively watch us, often in real time. It is as if a great surveillance machine has been growing up around us, but largely dumb and inert — and is now, in a meaningful sense, “waking up.”

%3Ciframe%20allowfullscreen%3D%22%22%20frameborder%3D%220%22%20height%3D%22315%22%20src%3D%22https%3A%2F%2Fwww.youtube.com%2Fembed%2F1dDhqX3txf4%3Fautoplay%3D1%26autoplay%3D1%26version%3D3%22%20thumb%3D%22files%2Fweb19-robots-560x315.jpg%22%20width%3D%22560%22%3E%3C%2Fiframe%3E Privacy statement. This embed will serve content from youtube.com.

Computers are getting better and better, for example, at what is called simply “human action recognition.” AI training datasets include thousands of actions that computers are being taught to recognize — things such as putting a hat on, taking glasses off, reaching into a pocket, and drinking beer.

Researchers are also pushing to create AI technologies that are ever-better at “anomaly detection” (sounding alarms at people who are “unusual,” “abnormal,” “deviant,” or “atypical”), emotion recognition, the perception of our attributes, the understanding of the physical and social contexts of our behaviors, and wide-area tracking of the patterns of our movements.

Think about some of the implications of such techniques, especially when combined with other technologies like face recognition. For example, it’s not hard to imagine some future corrupt mayor saying to an aide, “Here’s a list of enemies of my administration. Have the cameras send us all instances of these people kissing another person, and the IDs of who they’re kissing.” Government and companies could use AI agents to track who is “suspicious” based on such things as clothing, posture, unusual characteristics or behavior, and emotions. People who stand out in some way and attract the attention of such ever-vigilant cameras could find themselves hassled, interrogated, expelled from stores, or worse.

Many or most of these technologies will be somewhere between unreliable and utterly bogus. Based on experience, however, that often won’t stop them from being deployed — and from hurting innocent people. And, like so many technologies, the weight of these new surveillance powers will inevitably fall hardest on the shoulders of those who are already disadvantaged: people of color, the poor, and those with unpopular political views.

We are still in the early days of a revolution in computer vision, and we don’t know how AI will progress, but we need to keep in mind that progress in artificial intelligence may end up being extremely rapid. We could, in the not-so-distant future, end up living under armies of computerized watchers with intelligence at or near human levels.

These AI watchers, if unchecked, are likely to proliferate in American life until they number in the billions, representing an extension of corporate and bureaucratic power into the tendrils of our lives, watching over each of us and constantly shaping our behavior. In some cases, they will prove beneficial, but there is also a serious risk that they will chill the freedom of American life, create oppressively extreme enforcement of petty rules, amplify existing power disparities, disproportionately increase the monitoring of disadvantaged groups and political protesters, and open up new forms of abuse.

Policymakers must contend with this technology’s enormous power. They should prohibit its use for mass surveillance, narrow its deployments, and create rules to minimize abuse.

Read the full report here.

Lawsuit Challenges Discriminatory Housing Policy in Chesterfield County, Virginia

All housing providers should comply with the legal obligation to give all applicants the opportunity to access housing.

Housing discrimination takes different forms in different eras. More than fifty years after the passage of the Fair Housing Act (FHA), it’s rare to see an advertisement for housing that says “Whites Only.” But in Chesterfield County, Virginia, where a Black resident is almost three times as likely as a white resident to have a criminal record, an explicit policy barring any individual with a conviction from housing has a similar effect.

Sterling Glen is an apartment complex in a white neighborhood in Chesterfield County. Since at least 2017, Sterling Glen has explicitly stated on its application that no person with a felony conviction, regardless of how long ago it was, can live there. It also bars applicants with many kinds of misdemeanor offenses, including drug convictions. Bans like these not only pose a barrier to those reentering the community after incarceration, but those with records who have been living and working in the community for years or even decades. A lack of access to permanent housing can also increase rates of recidivism, perpetuating cycles of criminalization and ultimately making communities less secure.

Chesterfield County, Virginia

Sterling Glen’s housing policy discriminates against Black renters

in a mostly white area of Chesterfield County

Percentage Black Pop.

35 - 89% Black

20 - 35%

15 - 20%

10 - 15%

0 - 10%

Sterling Glen

Apartments

Note: By census tract

Source: 2010 Decennial Census; virginiacourtdata.com

Chesterfield County, Virginia

Sterling Glen’s housing policy discriminates

against Black renters in mostly White area

Sterling Glen

Apartments

Percentage Black Pop.

10 - 15%

15 - 25%

25 - 35%

35 - 89%

0 - 10%

Note: By census tract

Source: 2010 Decennial Census; virginiacourtdata.com

Chesterfield County, VA

Sterling Glen’s housing policy

discriminates against Black renters

in mostly white area

Sterling Glen

Apartments

Percentage Black Pop.

10 - 15%

15 - 25%

25 - 35%

35 - 89%

0 - 10%

Note: By census tract

Source: 2010 Decennial Census; virginiacourtdata.com

*/ /*-->*/

 

These numbers mirror national trends. As a result of our country’s bloated criminal justice system, more than 625,000 individuals are released from prison each year. Nationally, approximately 19 million people have at least one felony conviction and 100 million people, nearly one-third of the population, have a criminal record. But the impact of criminal convictions is not evenly distributed throughout the population. 

People of color are disproportionately represented at every stage of our criminal justice system, including among those with criminal records. As a result, any policy that excludes people with criminal records from housing disproportionately harms people of color. The U.S. Department of Housing and Urban Development (HUD) has recognized that excluding people with criminal records can be considered race discrimination under the FHA because “African Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population.”

In Chesterfield County, individuals who are Black represented 46% of those convicted of a felony between 2007 and 2017, despite only accounting for 22% of the population. Put another way: there are 23 people with a felony conviction per 1,000 white people in Chesterfield County, but 65 people with a felony conviction per 1,000 Black people in the same geographic area. 

Black People Make Up 22% of Chesterfield County

Population, but 46% of People with Felony Convictions

Population

People with Felony

Convictions

Black people

Non-Black people

Source: 2010 Decennial Census; virginiacourtdata.com

Black People Make Up 22% of

Chesterfield County Population, but

46% of People with Felony Convictions

Population

People with Felony

Convictions

Black people

Non-Black people

Source: 2010 Decennial Census; virginiacourtdata.com

Black People Make Up 22% of

Chesterfield County Population,

but 46% of People with Felony

Convictions

Black people

Non-Black people

Population

People with Felony

Convictions

Source: 2010 Decennial Census;

virginiacourtdata.com

*/ /*-->*/

 

As a result of these dramatic disparities, Sterling Glen’s blanket ban is impermissible under both the federal FHA and Virginia state law.These laws not only prohibit housing providers from intentionally discriminating on the basis race, sex, disability, or other protected status, but also bar the application of any policy that has a disparate impact on one of these protected groups.

In place of blanket bans like Sterling Glen’s, the FHA requires that housing providers consider each housing applicant as an individual. By looking at not only the existence of a conviction, but the nature of their conviction or conduct, how long ago it occurred, and any evidence of rehabilitation, housing providers can make more fair decisions. Taking into account a prospective applicant’s post-conviction and post-release conduct, history as a tenant, and other similar factors provide important context into whether housing an applicant poses a risk to health or safety of the community.

The ACLU and ACLU of Virginia, in partnership with Relman, Dane & Colfax PLLC, a civil rights law firm with expertise in housing discrimination, are challenging the discriminatory blanket ban instituted at Sterling Glen on behalf of Housing Opportunities Made Equal (HOME), a Richmond-based nonprofit organization. HOME’s mission is to ensure equal access to housing for all by engaging in education and outreach, counseling individuals who face discrimination, undertaking investigations to uncover discrimination, and initiating enforcement actions. 

Through this lawsuit, HOME aims to ensure every person has the opportunity to access safe, decent, affordable housing, regardless of their criminal history. The categorical exclusion of individuals with a criminal history has a discriminatory impact, is an ineffective means of assessing risk to residents and property, and violates both federal and state law. All housing providers should comply with the legal obligation to give all applicants the opportunity to access housing by considering them as individuals—not merely statistics.

Who Controls Our Genes? Congress Is Deciding Right Now And It Could Harm Our Health.

Draft legislation will try to undo Supreme Court precedent forbidding patenting of human genes.

This morning the ACLU, along with 169 other civil rights, medical, scientific, patient advocacy, and women’s health organizations, including the Mayo Clinic, Breast Cancer Action, Lung Cancer Research Foundation, the Huntington’s Disease Society of America, the Women’s March, University of Washington, and many others sent a letter to the Senate Judiciary Committee’s Subcommittee on Intellectual Property strongly opposing a draft bill that would allow companies to patent our genes. Yes. You read that right.

The draft bill is deeply concerning because if it becomes law, it would allow private companies to hold patents granting them 20-year monopolies over genes, their links to disease, other products of nature and abstract ideas.  Patent-holders could control who can provide testing for genetic mutations associated with diseases like cancer, muscular dystrophy, Alzheimer’s disease, heart disease, and other rare and common diseases, driving up prices for testing and jeopardizing patients. They could also control which researchers could examine and study the gene, stifling the free exchange of information and impeding the progress of developing treatments. 

Beginning early this year, Senators Tillis and Coons, held closed-door roundtables with industry representatives and others interested in changing the law to discuss radically rewriting Section 101 of the Patent Act, which currently prohibits patents on laws of nature, products of nature, and abstract ideas. Now, the Senators, along with Reps. Johnson, Collins, and Stivers, have released the draft bill, which removes this prohibition and erases all related prior court precedent. Senators Tillis and Coons will be holding three hearings this month, starting tomorrow, calling 45 witnesses to discuss changes to Section 101. Disturbingly, of the 30 witnesses testifying so far, very few organizations will speak on behalf of patients (the ACLU will be one of the exceptions) and the broader scientific community. 

Let’s back up a bit. Genes are fundamental to who we are. They can determine our hair color, our height, whether we have seasonal allergies. Mutations in them also are associated with disease. For example, mutations in the BRCA1 and BRCA2 genes are correlated with a 50-80% higher risk of breast cancer and a 20-50% higher risk of ovarian cancer, as well as elevated risks of pancreatic and prostate cancers. People with certain personal or family histories of cancer may wish to be tested so they can assess their options.

Now, consider this. What if only one lab can do the testing, because it has patented the genes?

This is not a made-up hypothetical. It was the reality for many people before the Supreme Court decided a 2013 case known as Association for Molecular Pathology v. Myriad Genetics. For decades, the U.S. Patent Office issued patents on thousands of human genes, arguing that the first to sequence a gene and remove it from the human cell somehow “invented” the DNA. 

Because Myriad patented the BRCA1 and BRCA2 genes, it had the power to control who could test the genes and who could research them. Myriad used that power. It charged monopoly prices for its tests, and other labs were stopped from providing different and more comprehensive genetic testing. The ACLU sued Myriad Genetics on behalf of 20 plaintiffs, including patients, geneticists, and scientific associations, arguing that genes should never be granted to anyone as intellectual property. The Supreme Court agreed and unanimously held that human genes cannot be patented because they are “products of nature.”

The decision was not radical. It was grounded in over 150 years’ worth of precedent that teaches us that patents on laws of nature, naturally occurring phenomena, and abstract ideas are invalid, because they grant monopolies over the fundamental building blocks of human ingenuity. If things created in nature and broad ideas (like the concept of hedging risk) are not available for everyone to use, then the patentholder is empowered to stop all further innovation to the public detriment – as economist Joseph Stiglitz, one of the experts in our litigation, explained.    

Patent law is not just about one company asserting property rights against another.  Patents affect all of us, with real consequences for how we access medical care and the research that scientists pursue.  Rewriting the law to allow for patents on nature will return us to an era where patents on genes increase the price of testing beyond patients’ reach, stymie competition for developing improved genetic analyses, and interfere with advancements in developing therapies targeted to genomic markers. 

As we said in Myriad, we will say it again: products of nature, laws of nature, and abstract ideas should not be granted as intellectual property to anyone. Members of Congress should oppose this draft legislation and any effort to rewrite the law that would harm patient health care, access to diagnostics and treatment, or scientific research.  

 

Trump’s Anti-LGBTQ Agenda Will Keep Foster Children From Having a Loving Home

We’re suing the Department of Health and Human Services to keep a license to discriminate out of South Carolina’s foster care system.

Last week, while the Department of Health and Human Services was rolling-back Obama administration protections for transgender people, it was reported that HHS is also preparing to issue a nationwide rule that would allow for discrimination against same-sex couples seeking to open their hearts and homes to children in the foster care system.

While we don’t yet know what form this rule will take, one thing is clear: It will be bad for the over 440,000 children in government care in need of loving families.

We’re not waiting for the Trump administration to drop this rule, which would go against long-standing best practices supported by every major child welfare organization and former foster youth. Today we filed a lawsuit against HHS — as well as the state of South Carolina — based on action they took to allow foster care agencies in South Carolina to turn away prospective families for children based on religious eligibility criteria that exclude same-sex couples, among others.

Miracle Hill Ministries is the largest taxpayer-funded, state-contracted foster care agency in South Carolina. It accepts only foster parents who meet its religious criteria, which exclude families that do not adhere to Miracle Hill’s evangelical Protestant Christian beliefs and families headed by same-sex couples regardless of their faith.

Because a federal regulation bars discrimination in federally funded child welfare programs, South Carolina Gov. Henry McMaster asked Trump’s HHS for a waiver from the regulation. They obliged. As a result, Miracle Hill has been given a license to discriminate.

One of the families turned away by Miracle Hill is Eden Rogers and Brandy Welch’s family. Eden and Brandy, who have been married since 2015, are raising two young children. Due to family challenges, Eden helped raise her siblings. That experience inspired Eden to become a foster parent. To prepare to welcome more children into their family, they recently moved into a larger home.

Eden and Brandy reached out to Miracle Hill, the primary agency serving the Greenville area where they live. They mentioned they were a same-sex couple and were repeatedly told that Miracle Hill was a Christian agency that follows Christian values and that they would need to submit the online application form. They submitted the form, which asked them to identify their church. They received a response from Miracle Hill, rejecting their application, stating that as members of the Unitarian Universalist Church, their faith “does not align with traditional Christian doctrine.” Miracle Hill’s doctrinal statement also requires families to believe that “God’s design for marriage is the legal joining of one man and one woman,” effectively disqualifying married same-sex couples.

The children in the South Carolina’s foster care system can’t afford to lose out on families like Eden and Brandy’s.

Giving states like South Carolina the green light to allow discrimination in the public child welfare system only adds to the shortage of families willing to foster or adopt a child in state custody. Families who are rejected by an agency because of their faith or sexual orientation may not have other options in their area. Even if they do, the sting and humiliation of discrimination may deter some from approaching other agencies to possibly face more discrimination. When families are deterred from fostering, this means that more children will be placed in group homes, separated from siblings, and age out of foster care without ever being adopted.

Simply put, HHS and South Carolina have turned child welfare practice on its head by putting the interests of taxpayer-funded agencies above the interests of the children in their care.

While these policies are offered in the name of religious liberty, it is the opposite of religious liberty to allow agencies acting on behalf of the state to exclude people from participating in a government program because they are of the “wrong religion” or otherwise fail a religious test. For this reason, leaders from diverse faith communities have strongly opposed such policies.

Rolling back nondiscrimination provisions in child welfare won’t just be devastating for LGBTQ people and minority faith communities. The Trump administration’s agenda will ultimately cause the most harm to children in foster care who are in need of a loving home.

The Government Needs to Get a Warrant if It Wants Access to Our Private Health Information

Choosing between obtaining health care and giving up one’s privacy rights is no choice at all.

The Drug Enforcement Administration is once again trying to access private prescription records of patients — this time in New Hampshire — without a warrant, despite a state law to the contrary. Today the ACLU filed a brief in support of the state of New Hampshire’s fight to defend the privacy of our sensitive medical information against unwarranted searches by law enforcement.

New Hampshire — like 48 other states, the District of Columbia, and Puerto Rico — has established a statewide Prescription Drug Monitoring Program (PDMP), which logs records of every prescription for a long list of “controlled substances,” including Xanax, Ambien, and many painkillers, filled by pharmacists in the state. The PDMP is intended to function as a public health tool to allow physicians and pharmacists to look up their patients’ past prescriptions for medications that have addictive potential. Because these prescription records are so sensitive, New Hampshire law bars law enforcement agents from accessing the database unless they have a search warrant signed by a judge.

That rule has worked just fine for state and local police, but the federal Drug Enforcement Administration refuses to respect it. The DEA insists that, because it is a federal agency, it can ignore state law and request people’s PDMP records with an administrative subpoena instead of a warrant. Unlike a warrant, a subpoena is issued directly by the agency based on a low legal standard, without requiring the approval of a judge.

When New Hampshire received a DEA subpoena for a patient’s PDMP records last year, the state rightly refused to comply because doing so would violate the state law requiring a warrant. The DEA then sued in federal court, but New Hampshire stood firm, arguing that the subpoena was improper under federal law and the Fourth Amendment to the U.S. Constitution. After losing in trial court, the state appealed to the First Circuit Court of Appeals.

The DEA’s most galling argument in the case is that people have no reasonable expectation of privacy in their prescription records held in the PDMP because of the “third-party doctrine.” Under that doctrine, a person is considered to lose their Fourth Amendment protections in information voluntarily shared with a “third party,” like a company they do business with.

We’ve seen that argument before when the DEA tried to obtain PDMP records in Oregon and Utah without a warrant. But the legal landscape has now changed. That’s because last year in Carpenter v. United States, the Supreme Court made clear that the third-party doctrine does not automatically apply to sensitive agglomerations of digital-age records. That case was about people’s sensitive location records held by their cell phone companies, but the lesson of Supreme Court’s holding should apply equally to the sensitive digital database of prescription records at issue here.

Our amicus brief, filed with the ACLU affiliates in the First Circuit — New Hampshire, Maine, Massachusetts, Puerto Rico, and Rhode Island — as well as the New Hampshire Medical Society, argues that  law enforcement agencies, including the DEA, must get a warrant under the Fourth Amendment to access the private medical information in the PDMP database.

As we explain, information about the prescription medications we take can reveal a great deal of intimate and private details about our health, including our medical diagnoses and our doctors’ confidential medical advice. Indeed, this kind of medical information is among the most sensitive data about us. That’s why, for as long as there has been a medical profession, health care providers have been bound by a duty of confidentiality toward their patients’ medical information.

Moreover, this information is not voluntarily shared, in any meaningful sense, with the state’s database. The DEA suggests that people make a choice to give up their privacy protections when they share their medical information with their doctor and pharmacist. But as we write in our brief, choosing between obtaining health care and giving up one’s privacy rights is no choice at all.

The DEA’s aggressive position comes amid intensifying attention to the nation’s opioid addiction crisis. But far from hindering efforts to address that serious problem, strong Fourth Amendment protections are a crucial part of the solution. Successfully addressing drug addiction primarily requires public health approaches, not prosecutorial ones. Easy law enforcement access to medical records not only fuels mass incarceration, it deters patients from seeking necessary medical care.

Requiring the DEA to get a warrant ensures that people’s sensitive prescription records are only available to police when there is a real need. That’s good policy, and good Fourth Amendment law.

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