ACLU News

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.”

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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.

Trump’s ‘Big, Beautiful’ Wall Crumbles in Court

For the first time, a federal judge made clear to President Trump he couldn’t get his wall by illegally diverting taxpayer money.

From the beginning of his campaign for president, Donald Trump claimed that he was going to build a wall along the southern border. He said “nobody builds walls better than me.” He said the wall would be “big” and “beautiful.” He said someone else would pay for it. And he said it would be built so fast that “your head would spin.”

Last night, for the first time, a federal judge made clear to President Trump he couldn’t get his wall by illegally diverting taxpayer money. 

The judge’s ruling comes in an ACLU lawsuit on behalf of the Sierra Club and the Southern Border Communities Coalition (SBCC). Together, the Sierra Club and SBCC represent the communities who live in, protect, and treasure the lands and communities along our southern border. For years, these communities have engaged in the democratic process and successfully persuaded their congressional representatives to deny President Trump funding to build his wall.

Our lawsuit centers on the question of whether the president abused his power to divert funds for a border wall Congress denied him. Unfortunately for President Trump, the Constitution is clear on the matter: only Congress has the power to decide how taxpayer funds are spent. And Congress, like border communities, said no to the President’s wall.

Congress didn’t bow to Trump’s pressure even after he caused the longest government shutdown in U.S. history over his demands for billions of dollars for his wall. Congress allocated only a fraction of the money that Trump demanded, and imposed restrictions on where and how quickly any border barriers could be built. 

In a blatant abuse of power meant to circumvent Congress, President Trump declared a national emergency on February 15, 2019, and announced he would illegally divert $6.7 billion from military construction and other accounts for the border wall project. 

From the beginning, the emergency was obviously a sham. Trump said as much himself when he declared the emergency, saying he “didn’t need to do this” but he’d prefer to build the wall “much faster.” He added that he declared a national emergency because he was “not happy” that Congress “skimped” on the wall by denying him the billions he demanded.

Despite this, the Trump administration tried to argue in court last Friday that Congress never actually “denied” President Trump the billions of dollars he is now trying to take from the military. The court rejected the administration’s argument, reminding the administration that “the reality is that Congress was presented with—and declined to grant—a $5.7 billion request for border barrier construction.”

The court’s ruling blocks the sections of wall that the Trump administration announced would be built with military pay and pension funds. It also invites us to ask the court to block additional projects as they are announced in the future. The judge emphasized the government’s commitment to inform the court immediately about future decisions to build.

It may be easy to ridicule President Trump’s desperation for a border wall — an absurd and xenophobic campaign promise for which he has only himself to blame. But as pointless and wasteful as it may be, Trump’s campaign promise now threatens to cause irreparable and real damage to our constitutional checks and balances, the rule of law, border communities, and the environment.

The wall is part of an exclusionary agenda that President Trump has targeted, over and over, at people of color. From his notorious Muslim Ban, to his efforts to eliminate protections for immigrants from Haiti, Sudan, Nicaragua, and El Salvador, courts have found “evidence that President Trump harbors an animus against non-white, non-European” immigrants. Trump has repeatedly justified his wall by lying about border communities, falsely claiming that America needs a wall.

Border communities know firsthand that walls are dangerous and wasteful. They divide neighborhoods, worsen dangerous flooding, destroy lands and wildlife, and waste resources. As our clients explained to the court, “we are a community that is safe, that supports migrants, that works well together and supports one another, that is worthy of existence.”  What border communities truly need is infrastructure and investment, not militarization and isolation. 

The court’s order is a vindication of border communities’ advocacy for themselves, and of our Constitution’s separation of powers. As the court wrote, “Congress’s ‘absolute’ control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one.”

DHS Is Locking Immigrants in Solitary Confinement

As ICE detention numbers reach record high, new reports are extremely troubling.

In 2012, I visited the federal supermax prison ADX Florence in Colorado and spoke with men living in solitary confinement. I listened closely to their stories of anguish, but I could not understand how they survived it. They told me of the horror of being trapped in a small room, without access to fresh air or sunlight, for at least 22 hours a day—alone, afraid, and not knowing when it would end. I learned that people in solitary confinement talk to the walls, to themselves, to no one — sometimes they stop talking altogether.

Those are the types of horrors we now know that Immigration and Customs Enforcement (ICE) is inflicting on immigrants, thanks to the courage of whistleblower Ellen Gallagher. This week, multiple news outlets reported government documents detailing 8,488 cases of solitary confinement. In half the cases, solitary lasted longer than 15 days — the point at which some of its psychological harms may become irreversible and it can amount to torture, as well as a violation of international standards outlined in the UN’s Nelson Mandela Rules.

The stories become even more harrowing when we learn why ICE allegedly imposed solitary. NBC news reported reasons including: wearing a hand cast, sharing a consensual kiss, or needing a wheelchair. ICE reportedly put LGBTQ individuals and people with mental illness in solitary as “protective custody,” citing their own safety.

The reports are replete with allegations that, if true, suggest that ICE repeatedly violated its own 2014 directive on solitary confinement.

At the time, the ACLU welcomed that directive as a much-needed step forward, as it required that solitary confinement occur “only when necessary.” Except in disciplinary cases, the directive requires that solitary be imposed “for the briefest term and under the least restrictive conditions practicable.” Individuals may not be placed in solitary based solely on their physical disability, sexual orientation, or gender identity (among other bases). And solitary can only be imposed as a form of discipline after a panel determines the detainee “committed serious misconduct” and “when alternative dispositions would inadequately regulate detainee behavior.” Instead of following its directive, however, ICE “uses isolation as a go-to tool, rather than a last resort,” The Intercept concluded.

If  ICE has repeatedly flouted its own rules on solitary, it should come as no surprise. ICE and its peer agency, Customs and Border Protection (CBP), have egregious records of allowing officials to commit abuses and endanger lives, often with impunity.

This week 16-year-old Carlos Gregorio Hernandez Vazquez died in CBP custody in Texas one day after being diagnosed with influenza. He reportedly had traveled there to reunite with family and support his siblings, including his brother with special needs. Only three days prior to his death, the ACLU Border Rights Center and ACLU of Texas wrote a complaint to the DHS Inspector General describing shocking conditions in CBP detention: Children and their parents forced to sleep outdoors through extreme heat and rain, in puddles of water, given only paper-thin Mylar sheets to shield them from the elements; Border Patrol agents ignoring or denying requests for medical care, including for infants and kids.

And yet the immigration detention machine churns on. This week ICE detention numbers spiked at 52,398 people—an apparent all-time high, and far above the level of 45,000 that Congress authorized earlier this year.

The Trump administration has asked Congress for billions more in enforcement funds for CBP and ICE. At a hearing this week, Acting DHS Secretary Kevin McAleenan warned that without more funds, it would be difficult for DHS to prevent “the children being put at risk.” He also asked for new legal authorities to detain families for longer.

Providing an abusive agency more money and authority so that it will stop committing abuses makes no sense. It’s like donating to a corrupt politician, in the hope that it will stop her from yielding to the temptation to be corrupt.

Immigration detention is expensive, inhumane and unnecessary. Instead of being hostage to the Trump administration’s ever-increasing demands, Congress should press the administration to reduce detention and revive alternatives such as the Family Case Management Program, in partnership with community-based organizations, for individuals who need case management support.

Congress should also pass the Dignity For Detained Immigrants Act, a landmark detention reform bill. One key provision: It requires the DHS Office of Inspector General to carry out unannounced inspections of every DHS detention site, and forces DHS to promptly investigate detainee deaths.

Policymakers should be knocking on the doors of every detention site in the nation. We know horrific things have gone on there. Unless they are exposed, and ICE and its contractors held accountable, it’s all too likely the abuses will continue.

Black Trans Women Are Being Murdered in the Streets. Now the Trump Administration Wants to Turn Us Away From Shelters and Health Care.

Two new rules from the Trump Administration will leave transgender people vulnerable to violence, discrimination, and even death.

It has been a horrific week for transgender and non-binary people. Muhlaysia Booker, Claire Legato, and Michelle Simone are Black trans women who have been murdered in the past week. At least five Black trans women have been killed so far in 2019.

On Wednesday, the Department of Housing and Urban Development wants to give federally funded shelters a license to discriminate and turn away transgender people. The policy move is seen by many transgender and non-binary people as an act of violence on our community and our lives.

Then Friday, the Department of Health and Human Services announced its plan to take away protections for trans people from discrimination in healthcare. Like many Black trans women, I struggled to find employment and experienced homelessness. I supported myself, and my family, by doing sex work. I was once assaulted and robbed by a client. Even in New York City, outside of the Stonewall Inn, I have been attacked and hospitalized.

For many trans and non-binary people, particularly Black trans women, our homes are not safe. Our schools are not safe. Our workplaces are not safe. We are ridiculed by health care providers and denied basic and necessary health care. When we don’t feel safe to get lifesaving medical care, and when shelters that receive taxpayer dollars are allowed to turn me and my community away, there is no place to go but the streets, where we face violence and murder. And too often, just like I experienced, law enforcement fails to respond.

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Transgender people need our friends and family to see us, honor and acknowledge who we are, and say publicly that we belong.

In announcing the new proposal, which has not yet been formalized, HUD continues to spread lies and myths about transgender people that we have seen before. The Trump administration has been saying transgender people are lying about who we are in our schools, workplaces, and the military. It even suggested in the HHS comments that sharing space with trans people violates the rights of non-transgender people.

Trans women are women. Trans men are men. Non-binary genders are real. We face violence and discrimination in almost every aspect of life. We are not a threat. And we have a right to belong in this country and in shelters. We deserve access to health care.

To fight back against these attacks, here are three things you can do:

Check-in: Ask the transgender and non-binary people in your life how they are and what support they need.

Speak-up: Ask candidates for office and elected officials how they will respond to the violence against transgender people.

Support: Reach out to trans-led organizations and ask how you can be a part of the fight in your own community.

Transgender and non-binary people are a part of our country as voters, as taxpayers, as students, as parents, and as employees. We cannot be erased, no matter what this administration does.

Alabama Is Trying to Ban Abortion. Today We Filed Suit to Stop Them.

Abortion is a right and this attack on abortion rights won’t succeed.

Last week, Alabama Gov. Kay Ivey signed legislation banning nearly all abortions. The law, which threatens doctors with up to 99 years in prison for performing abortions, is the anti-abortion opposition’s true agenda on display: ban abortion, jail doctors, and push this essential health care out of reach.

These are undoubtedly dark times in the fight for reproductive freedom as Alabama and states across the South and Midwest aggressively push to place such onerous restrictions on abortion so that the procedure is all but rendered inaccessible. And this seemingly relentless attack on our freedom and dignity has had a disproportionate impact on the lives of Black people and other people of color, young people, and people with low-incomes. But make no mistake we have been and will continue to fight back: Abortion remains — and will remain — safe and legal in Alabama and in all 50 states.

Today, the ACLU, the ACLU of Alabama, and the Planned Parenthood Federation of Alabama filed a lawsuit on behalf of abortion providers in the state that will challenge this extremist law. Indeed, as even the sponsors and supporters of the law — even Governor Ivey herself — admit, the ban is blatantly unconstitutional. For more than 45 years, the Supreme Court has repeatedly — and unequivocally — held that the freedom to decide whether and when to have a child is one of the most intimate and personal decisions a person can make in their lifetime, and is central to the liberty protected by the Fourteenth Amendment.

While Alabama’s abortion ban may be its most extreme attack on this fundamental right, it certainly isn’t the first. For nearly a decade, the Alabama legislature has been pushing medically unnecessary and politically-motivated laws — a ban on the safest and most common second-trimester abortion procedure, and absurd licensing requirements that could have forced multiple clinics in the state to close. But the ACLU has never lost a legal challenge to an abortion restriction in Alabama yet, and this one will fare no better.

When all is said and done, Alabama will have wasted millions of dollars of taxpayer money in a fight it won’t win. But people need to keep making sure their voices are heard. Emboldened by President Trump’s anti-abortion agenda, state lawmakers are trying to pass laws intended to politicize the Supreme Court and strip Americans of their constitutional rights.

For decades, in Alabama and across the country, we’ve been fighting in the courts and the streets to protect people’s right to abortion. Just this last week we mobilized tens of thousands of our members to join our partner organizations at nearly 500 events across the country. Alabama isn’t alone in its efforts to roll back the clock to an era where abortion was illegal. Earlier this year, Kentucky, Georgia, Ohio, and Mississippi also enacted abortion bans. We’ve filed suit against the Ohio and Kentucky bans, and we’re in the process of putting together a legal challenge to Georgia’s as you read this.

Lawmakers in these states want you to forget the truth: Abortion is constitutionally protected, and you have the right to access one without having to apologize or explain yourself to any government official — anywhere. These bans are unconstitutional, and none of them have gone into effect, including Alabama’s, and we aim to keep it that way.

The ACLU stands with our partners and allies in Alabama — and across the country — in telling lawmakers that they will not impose their extremist views on us, and their attack on abortion rights won’t succeed.

We’re Suing Maricopa County Attorney Bill Montgomery to Release the Records He’s Hiding From Arizonans.

Prosecutorial transparency serves everyone. But in Maricopa County, Arizona, secrecy trumps transparency, and the people suffer for it.

Maricopa County Attorney Bill Montgomery claims to be a big believer in data. As reported last year, Montgomery has blocked effective, commonsense criminal justice reform proposals from becoming law in part by criticizing them as having “no data to support” them, and as being “pet projects” “based on myths and rhetoric.” 

Given this insistence on evidence-based policy, it would be reasonable to assume that Montgomery would happily comply with a public records request seeking exactly the sort of data he wishes folks would utilize. He’s done the exact opposite.

In October 2018, the ACLU of Arizona and investigative journalist Sean Holstege (a consultant that the ACLU of Arizona hired to write a report on Arizona prosecutors) sent Montgomery and his office a request seeking basic information about how the office functions: policies, procedures, staff rosters, budget figures, and data on how the office disposes of criminal cases. 

This was a large request, to be sure. But rather than accept Holstege’s offers to receive information on a rolling basis, Montgomery’s office delayed, stonewalled, and provided platitudes rather than answers.

The office told Holstege it was “chipping away” and “working on it” while sending nothing for months. The office also claimed that certain documents “cannot be provided,” but gave no reason why. As of today, the office has furnished exactly one document: a staff roster for a single year out of a range of years requested.

This refusal to comply with Holstege’s full request is not only hypocritical for Montgomery, we believe it’s illegal. So today, the ACLU and the ACLU of Arizona sued Montgomery and his office for violating Arizona’s public records law. Judge Damon Keith once said that democracy dies behind closed doors. Montgomery has slammed the door in our faces. 

In today’s suit, Arizona law is on our side.

The state’s courts have held that far shorter delays than this one—which now spans over 210 days—violate the public records law. Courts are also clear that the government must demonstrate that it conducted a diligent search and explain why any documents are being withheld. Montgomery and his office have also failed on both these counts.

It seems Montgomery does not want daylight on his data, and it begs the question: does he have something to hide? After all, he has done little to clean up the culture of misconduct within the Maricopa County Attorney’s Office, which was responsible for over half of the prosecutorial misconduct allegations in death penalty cases in the entire state between 2002 and 2013. He vigorously opposed proposed rules requiring prosecutors to disclose more information to criminal defendants, which the Arizona Supreme Court implemented over his objections anyway. According to a recent lawsuit, Montgomery is charging poor Arizonans for access to drug rehabilitation programs, making it harder for poor Arizonans to complete these programs.

An ardent anti-drug crusader, he was recently forced to admit that he was wrongfully threatening medical marijuana patients with felonies. He also has failed to meaningfully demonstrate how he’s disciplined Juan Martinez, a prosecutor with a long history of confirmed misconduct—and it should come as no surprise that he also refused to make records of any internal investigation public.

Finally, further relevant to this case, he even tried to prevent public records disclosures by the Phoenix police, even though he has no control over them. Thankfully, city leaders clapped back, saying Montgomery’s approach “undermines transparency and would likely further strain police-community relations.”

Montgomery’s track record on ignoring prosecutorial misconduct and driving mass incarceration is distinguished. Sadly, his aversion to transparency is not. Nationwide, prosecutors’ offices are among the least open government agencies in the country, despite their immense power over individuals and communities. For example, in a criminal justice system defined almost entirely by plea bargains—over 95 percent of cases end in them—prosecutors control virtually every element of the plea negotiation process, from the charges filed to the terms of the plea to the proposed sentence. Yet almost none of the 2,400 elected prosecutors nationwide voluntarily release data or policies on plea bargaining in their offices. Plus, any data that citizens are able to extract will almost certainly be incomplete, difficult to decipher, and inconsistent across offices, counties, and states.

But prosecutorial transparency, like transparency across government, serves everyone. Voters are more educated. Criminal defendants are better equipped to negotiate deals and prepare for trial. And, as noted by the Phoenix city leaders who opposed Montgomery’s plan to stifle police disclosures, prosecutors themselves can better build community trust, which is essential to their jobs.

More and more prosecutors around the country are waking up to the benefits of transparency and voluntarily disclosing information about their offices. But where they shut the door on democracy—especially by hiding efforts to exacerbate mass incarceration and deepen systemic racism—the ACLU will be the one who knocks. We started today in Arizona.

We’re Suing to Block Ohio’s Abortion Ban

Abortion is a constitutional right.

Today we filed a lawsuit challenging Ohio’s ban on abortion starting at six weeks of pregnancy. Our lawsuit comes a day after Alabama passed a similar law and weeks after Georgia, Kentucky, and Mississippi passed similar measures.

A ban on abortion starting at six weeks is a ban on almost all abortions. Before six weeks, most people do not even know that they are pregnant. 

Legally, this case is straightforward. A ban on abortion is blatantly unconstitutional under more than 45 years of Supreme Court precedent starting with Roe v. Wade. The Ohio law we’ve challenged today flies in the face of that precedent and of the Constitution. We’ve asked the court to block the law before it can take effect on July 10.

Take action in your area

The consequences of this law taking effect would be devastating. Approximately 90% of abortions in Ohio take place at and after six weeks. If this law were to go into effect, the vast majority of Ohioans will no longer be able to obtain an abortion. People of color, people struggling financially, and young people will be disproportionately affected. Black women are three times more likely than white women to die of causes related to pregnancy, and denying women access to desired abortions while failing to adequately address these disparities will only result in more bad outcomes.   

The six-week ban that we are challenging today is not an isolated attack on abortion by Ohio politicians. Instead, it builds on decades of abortion restrictions that already exist in the state, including a mandatory waiting period requiring two trips to the health center, parental consent for minors, and bans on insurance coverage for abortion.

Since 2011, anti-abortion politicians around the country have been chipping away at abortion access, passing more than 400 abortion restrictions. Quietly pushing abortion out of reach in this way has been a core part of the strategy for decades, starting back in the 1970s when U.S. Rep. Henry Hyde (R-Ill.) first proposed a law that prevents people enrolled in Medicaid from using their insurance to cover the cost of an abortion if they need one. In explaining the reason for his proposal, Rep. Hyde said, “I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the Medicaid bill.”

But this year — emboldened by the Trump administration’s attacks on reproductive health care access and the changes on the Supreme Court — states are taking direct aim at Roe v. Wade. Despite strong public support for affordable and barrier-free access to abortion care, they hope the balance of the Supreme Court has turned against abortion rights with enough votes to aggressively and systematically dismantle abortion access. These laws are part of a concerted, national effort to eliminate access to safe and legal abortion. Politicians pass draconian, blatantly unconstitutional abortion restrictions knowing they will get blocked while planning to appeal every legal challenge until they force the Supreme Court to outlaw abortion. 

Along with partner organizations, we have vowed to challenge the Alabama and Georgia measures — just as we have in Ohio — and have already blocked the law in Kentucky. A challenge to Mississippi’s law is pending. Make no mistake, while the right to abortion is under unprecedented attack, abortion is a constitutional right — and it is currently legal in all 50 states. Roe has been the law of the land for over 40 years, and we will do everything we can to ensure that people are able to get the care they need without shame, obstacles, and stigma.

House Funding Bill Shows How Far We’ve Come in the Fight for Reproductive Freedom—And How Far We Have to Go

A key bill makes important strides for reproductive health, and shows why we need presidential candidates to show leadership on abortion coverage.

This week the House Appropriations Committee advanced the Labor, Health, and Human Services appropriations bill, the annual bill that funds federal health and education programs.  It makes important strides forward on reproductive health and rights--and it also shines a light on the need for presidential leadership on abortion coverage.

The bill, under the leadership of subcommittee chair Rep. Rosa DeLauro (D-CT) and committee chair Rep. Nita Lowey (D-NY), blocks funding for implementation of the Trump administration’s discriminatory health care refusal rule, thanks to an amendment offered by Rep. Barbara Lee (D-CA). That sweeping new rule, issued late last week, aims to license discrimination in health care by enabling health care institutions and workers to refuse medical services on the basis of religious or other objections. If passed, this bill would stop that dangerous rule from moving forward. 

The bill gives much-needed support to Title X, the nation’s federal family planning program that provides affordable birth control, cancer screenings, and STI testing and treatment to 4 million people annually. Title X is the primary source of preventive health care for many low income patients—and in the face of relentless attacks by the Trump administration, including the domestic gag rule recently blocked in court, it’s critical that this bill protects Title X. The bill also gives a needed boost to programs that provide medically accurate sexual health education, including the Teen Pregnancy Prevention Program, and efforts to fight maternal mortality.

But there is also a glaring problem: it leaves in place the Hyde Amendment, which for over 40 years has banned abortion coverage in Medicaid and other government health insurance programs in almost all circumstances. As a result of such coverage restrictions, in many parts of the country, the right to an abortion is a reality only for those privileged enough to afford out-of-pocket care. Poor women, most often poor women of color, are forced to forgo basic necessities in order to pay for the care they need, while 1 in 4 are denied care altogether

To bring an end to this decades-long injustice, the ACLU calls for the removal of the Hyde amendment and all other abortion coverage restrictions from appropriations bills, as well as passage of the EACH Woman Act, which would eliminate these harmful riders once and for all while also ending political interference in the private insurance market. It’s time to end this discriminatory policy so that everyone can make their own decisions about abortion, regardless of what kind of insurance they have or how much money they make.

For this to succeed, however, it will require strong, decisive leadership from a president who supports abortion access for all. Even with a pro-choice majority in Congress, an anti-choice president can veto any bill that expands abortion coverage and bring progress to a halt.

That’s why ACLU volunteers around the country are asking presidential candidates, as part of the nonpartisan Rights for All initiative, whether they will take a stand and lead the fight to ensure that everyone can access abortion care. As a matter of institutional policy, the ACLU does not support or oppose individual candidates for elected office. But we do want to ensure voters are informed and to see leaders use their megaphones to elevate the most important civil liberties and civil rights issues of the day. That's why these ordinary Americans are getting candidates on the record about ending abortion coverage restrictions at campaign stops around the country. 

As President Trump doubles down on dangerous and inflammatory lies about abortion, when abortion access is under attack all over the country, with politicians in state legislatures passing new restrictions designed to make abortion impossible to access or to challenge Roe v. Wade directly, this fight could not be more urgent.

ACLU voters reject this agenda. They want to support a candidate who will stand up for the right to abortion and has a plan to ensure that access is a reality for everyone.

The Use of Solitary Confinement in Virginia Is Inhumane and Unlawful

Instead of keeping its word to courts and reforming its use of solitary, the VA Dept. of Corrections built two massive super maximum-security prisons.

William Thorpe has spent nearly 24 straight years in solitary confinement in Virginia prisons stuck in a cell about half of the size of a parking space for more than 22 hours a day, every day, with no outside light and almost no human contact.

In his nearly two and a half decades in solitary, Thorpe has seen changes in leadership at the Virginia Department of Corrections (VDOC) and attempts to reform how solitary confinement is used in our state prisons.

The most recent, change to VDOC’s solitary practices was creation in 2011 of its so-called Segregation Reduction Step-Down Program. This program is a behavior modification system VDOC officials have repeatedly touted as an evidence-based approach to corrections that provides a pathway out of solitary for those who follow the program’s rules. But for Thorpe and others, there is nothing new or special about the program. Instead, it’s a resurrection of a failed strategy that was discredited and discarded 35 years ago at another now-closed Virginia prison. Built in 1977, the Mecklenburg Correctional Center was a maximum-security prison supposedly built to house the most dangerous, disruptive people held in solitary confinement by VDOC under close supervision with minimal privileges.

But when it came time to fill the prison’s 360 beds, VDOC found there weren’t enough people in Virginia who were such a security risk that they needed the kind of restrictive supervision Mecklenburg provided.

A 1984 state Board of Corrections investigation revealed VDOC had solved the problem by filling Mecklenburg’s many empty beds using relaxed, inconsistent criteria. VDOC officials even had cold-called other Virginia prisons seeking referrals to keep Mecklenburg full so they could justify its massive operating costs.

Once at Mecklenburg, prisoners were assigned to one of two very restrictive solitary confinement settings. One, the Special Management Unit (“SMU”), was for very disruptive people who likely would remain in solitary confinement permanently. The other was the “Phase Program,” which in theory allowed some people the chance to progress through “phases,” earning privileges at each, and eventually earn their way to general prison population.

In practice, however, the Phase Program failed to fulfill its rehabilitative mission. Staff had wide discretion to revoke privileges if a prisoner failed to comply with any of two behavioral categories, leading one expert engaged by the Board of Corrections to wonder “whether it is better not to attempt the Phase Program at all than to do it wrong.”

As a result of a class-action lawsuit brought in 1981 by the ACLU’s National Prison Project, VDOC agreed in 1985 to end the SMU and the Phase Program, and not reinstate similar programs in the future. The lawsuit alleged unconstitutional conditions at Mecklenburg that the Phase Program worsened by allowing arbitrary, indefinite placement of people in solitary.

Instead of keeping its word to the court and eliminating the Phase Program for good, VDOC built two massive new super maximum-security prisons in the late 1990s – Red Onion and Wallens Ridge, both located in Southwest Virginia, where recent coal mine closures had left thousands jobless – and started again.

At these prisons, VDOC doubled down on the same flawed, unconstitutional practices it had used at Mecklenburg.

Red Onion and Wallens Ridge were built to hold more than 2,000 people, far surpassing Virginia’s need for maximum security beds. As it had done with Mecklenburg, VDOC filled those beds by relaxing the criteria by which people could get placed in solitary confinement, and seeking out new prisoners – this time through interstate compacts with other jurisdictions – to assign to Red Onion and Wallens Ridge.

In 2011, VDOC started the so-called Step-Down Program, which is disturbingly similar in purpose and practice to the old Phase Program, and is yielding similar results: An endless maze of classifications, vague and confusing processes, and highly subjective decision-making authority granted to VDOC staff effectively make it impossible for many people to be released from solitary, ever.

Today, the ACLU of Virginia and global law firm White & Case LLP, filed a class-action lawsuit in the U.S. District Court of the Eastern District of Virginia on behalf of Thorpe and other people who have been held in solitary confinement at Red Onion and Wallens Ridge.

The lawsuit alleges the Step-Down Program has been used in much the same way as the failed Phase Program: to fill underused prisons and justify the exorbitant costs of keeping them open. Although numerous studies have shown solitary can cause psychological and physical damage in as few as 10 days, VDOC has remained deliberately indifferent to the permanent harm it is inflicting. The ACLU of Virginia’s report on solitary confinement in our state prisons – Silent Injustice – shed much light on the human toll of this practice.

VDOC’s use of solitary has been carried out with blatant disregard for the Mecklenburg settlement agreement, violating a variety of constitutional and statutory rights of incarcerated people at Red Onion and Wallens Ridge. This includes their right to due process, equal protection, and to be free from cruel and unusual punishment, as well as their right to accommodations under federal disability statutes.

On behalf of William Thorpe and every person VDOC has harmed in this way, we have sued to end the Step-Down Program and close the solitary units at Red Onion and Wallens Ridge. VDOC must be held accountable and forced to stop enacting these inhumane practices.

Attorney General Barr Says ICE Has Power to Lock Up Asylum Seekers Without Hearings

The Constitution does not allow the government to lock people up without due process of law.

Today the ACLU, the ACLU of Washington, the American Immigration Council, and Northwest Immigrant Rights Project launched a legal challenge to the Trump administration’s latest assault on people who have come to the United States to seek refuge from persecution: jailing asylum seekers without even allowing a judge to decide if there’s any reason to lock them up. Attorney General William Barr’s recent decision in Matter of M-S- seeks to eliminate this basic form of due process and puts thousands of asylum seekers at risk of being wrongfully imprisoned. 

M-S- specifically applies to individuals who enter the United States without documents and are apprehended by the authorities soon after they cross the border. Under the immigration laws, those individuals can be deported immediately—unless an asylum officer finds, after an interview, that they have a “credible fear” of persecution or torture, meaning there is a “significant possibility” that they legally qualify for asylum. Asylum seekers who pass this screening will then move on to a hearing on their asylum claims in immigration court.

ICE has the authority to detain asylum seekers while these immigration court proceedings move forward. But the asylum seekers addressed in M-S- have, until now, had the right to a bond hearing where an immigration judge would decide if he or she posed a flight risk or danger to the community and should be locked up, or should instead be released from custody.

M-S- eviscerates that basic form of due process. If the decision is allowed to go into effect, asylum seekers will now be locked up without any hearing before a judge. Instead, they will be left only with the option of asking ICE for release through what’s known as the “parole process”—a process that courts have found to be a sham. If not stopped, M-S- could result in the detention of thousands of men and women who shouldn’t be behind bars.

The decision also puts asylum seekers who have already been released on bond in jeopardy. Our lead plaintiff, Yolany Padilla, is seeking asylum from violence and persecution in Honduras, with her 6-year-old son. An immigration judge ordered her release on an $8,000 bond. Under the Attorney General’s decision, Yolany now faces the risk of being redetained—and separated from her child—even though a judge found she poses no flight risk and no threat to anyone.

For more than a century, the Supreme Court has held that all persons who have entered the United States have due process rights, and the Court has emphasized that “[f]reedom from imprisonment . . . lies at the heart of the liberty” protected by the Due Process Clause of the Constitution. The bedrock form of due process against unlawful detention is a hearing, before a neutral adjudicator, to decide if the person should be locked up. M-S- violates that basic right.

The decision is also pointlessly cruel and irrational. It makes no sense to lock people up without even having a judge consider whether they should be detained—it simply guarantees that we will imprison people who don’t need to be imprisoned. That is especially true when it comes to asylum seekers. Studies confirm that asylum seekers pose no threat to public safety and are highly motivated to fight their cases and show up for court. And nothing about a hearing prevents detention in the rare case where someone does pose a risk: the judge can just deny release. 

But ultimately this isn't about rational immigration policy or protecting public safety. The Trump administration always has made its real motives clear: it wants to deter immigrants from seeking refuge in the United States and punish people who apply for protection under our laws. But our Constitution does not allow the government to put people behind bars without due process of law.

The Government Shouldn’t Keep the Public in the Dark Just Because Private Companies Ask It To

While it may be a private entity’s prerogative to keep certain information secret, it can’t be the government’s.

The government often relies on private entities to carry out its work. It has them running private prisons, designing location tracking technologies, and developing artificial intelligence (AI) systems that automate government decisions, such as determining our Medicaid benefits, bail, and even which children are purportedly at risk of abuse or neglect. Today the Supreme Court heard a case, FMI v. Argus Media, about whether working with private companies changes the government’s transparency and accountability obligations to the public. As we and several other organizations argued in a friend-of-the-court brief, it should not.

The Freedom of Information Act (FOIA), the law at the center of the case, requires the government to disclose information to the public upon request unless such information falls within one of nine narrow exemptions. The exemption on the table, Exemption 4, allows the government to withhold “trade secrets” and “commercial or financial information” that is “privileged or confidential” and was not generated by the government.

Under existing law, to successfully invoke Exemption 4, the government must show that public disclosure of that information would likely cause substantial competitive harm to a private entity. A business association, the Food Marketing Institute, is arguing that the court need only rely on a private party’s word that something is “confidential” in order to keep the requested information secret.

That is the opposite of how FOIA is supposed to work.

The case began when a reporter with Argus Leader Media, a South Dakota newspaper, submitted a FOIA request to the U.S. Department of Agriculture (USDA) seeking, among other things, the total amount of federal funds distributed to grocery stores participating in the government program that subsidizes purchases of groceries for low-income families. In other words, a newspaper was seeking information about a public program. The USDA invoked Exemption 4 and refused to disclose this information. After a bench trial, the trial judge determined that disclosure of such information would not cause substantial competitive harm to the grocery stores, and the USDA agreed to disclose the information.

A private business association — not the government — appealed and is now arguing that regardless of whether requested information causes competitive harm, any information deemed “confidential” by a private entity falls within the exemption and outside the public eye. For all contexts in which the government works with the private sector, this would effectively replace FOIA’s longstanding presumption of disclosure with one of secrecy.

FOIA exists to keep the public informed; it enables the public to provide ongoing checks and balances on government action, a core element of a functioning democracy. And knowing what the government is doing and how it’s doing it is a necessary first step to ensuring that the government isn’t violating our rights — and to taking action when it is. Indeed, we at the ACLU often deploy FOIA to get information about a variety of government operations.

While the government often invokes exemptions such as those for law enforcement “techniques and procedures” to withhold information, an expansion of Exemption 4 could exclude information by solely deferring to a company’s private interests. Indeed, Exemption 4 is already invoked in such ways. For example, Harris Corporation asked the police to withhold details about government contracts for cell site simulator equipment — more commonly known as Stingrays — under Exemption 4. And the Department of Homeland Security and Immigration and Customs Enforcement invoked this exemption to prevent disclosure of certain information about government contracts with private detention facility contractors.

To date, such attempts have often been unsuccessful. But today’s case could change that.

While it is usually a private entity’s prerogative to keep certain information secret, it can’t be the government’s. As the intricacies of government work — from surveillance equipment to algorithms to information systems — are increasingly shaped by the private sector, FOIA must remain a tool for the public to keep an eye on the government’s actions.

Supreme Court Takes Cases of People Fired for Being LGBTQ

The court will consider whether to take anti-discrimination protections away from LGBTQ people.

Can a business fire someone because they’re LGBTQ? The Supreme Court will soon tell us.

After a funeral home outside Detroit fired Aimee Stephens because she is transgender, Aimee won a federal appeals court ruling that the firing violated the federal law barring sex discrimination in the workplace. After Don Zarda was fired from his job as a skydiving instructor because he’s gay, another federal appeals court ruled that his firing, too, was sex discrimination.

On Monday, the Supreme Court announced that it would take up Aimee and Don’s cases (plus a third) to decide whether to take those civil rights protections away from Aimee, Don, and all LGBTQ people in America. Not surprisingly, President Trump’s Department of Justice will argue that it should.

In Aimee’s case, she worked for six years in a job she loved as funeral director, getting great reviews. Her boss and co-workers knew her as a man, but she always knew she was female. In 2013, Aimee gathered the strength to come out to her supervisor as the woman she is. She was hoping to find acceptance and to be judged on her good performance alone. Instead, her boss fired her, making no bones about the fact that it was because she was transgender.


Aimee Stephens

In Don’s case, he worked at a skydiving company on Long Island, New York. Don’s teaching often involved tandem skydives, in which he was strapped hip-to-hip and shoulder-to-shoulder with customers learning how to jump. In the summer of 2010, as Don was strapping himself to a female customer for one of those tandem dives, he told her that he was gay to assuage any concern she had about being strapped to a man she didn’t really know. He never thought the comment would cause the end of his career at Altitude Express. But after the dive, Don’s boss fired him because a client learned he was gay.

In both Aimee and Don’s cases, the appeals courts ruled that they were discriminated against because of their sex. If Aimee was a valued employee when her boss thought she was a man, but unacceptable when he learned she was a woman, it’s frankly hard to see what it could be other than sex discrimination. In addition, the court in Aimee’s case — following court decisions over many years — held that discrimination based on transgender status is a form of sex discrimination because it’s impossible to describe what it means to be transgender without talking about a person’s sex.

Similarly, the court in Don’s case held that discrimination based on sexual orientation is a form of sex discrimination because you can’t describe what it means to be gay without talking about a person’s sex.

In addition, the courts held that both Aimee and Don were penalized for failing to conform to their employer’s sex stereotypes — in Don’s case that men should be attracted to women and in Aimee’s case that people who are assigned the male sex at birth are not supposed to look and behave as women.

The Equal Opportunity Employment Commission agrees that anti-LGBTQ discrimination is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. And for several years it has been enforcing that statute on behalf of LGBTQ people from every corner of the country who face workplace discrimination.

Unfortunately, President Trump’s Justice Department has taken the opposite position — arguing in both of these cases that it’s perfectly legal under federal law to fire Aimee because she’s trans and Don because he’s gay.

The Supreme Court ruling that Trump seeks — that firing LGBTQ people is legal — would shock most of America. A core American value is that people should be judged in the workplace based on their performance, not their identity. It’s a travesty that our government is advocating for discrimination to be legal.

The stakes here are huge. If federal law says it’s fine to fire someone because she’s lesbian or transgender, other federal civil rights laws may well not protect LGBTQ people, either. The federal education anti-discrimination law may not stop schools from harassing transgender students. The Federal Housing Act may not stop landlords from evicting same-sex couples. And the Affordable Care Act may not prevent health care providers from turning away transgender people. In fact, such a ruling could lead to the very “erasing” of transgender people from civil rights laws that the Trump Administration is reported to have been considering last fall.

Tragically, Don died in a skydiving accident in 2014. Don’s surviving partner, Bill Moore, and his sister, Melissa Zarda, have continued the lawsuit on behalf of Don’s estate. Bill and Melissa will be at the Supreme Court this spring along with Aimee, and all three will fight to ensure that the court doesn’t strip millions of LGBTQ people in America of the federal non-discrimination protections that current law provides.

Here’s hoping the court lives up to the nation’s values and rejects the Trump administration’s effort to relegate LGBTQ people to second-class status.

Dialing 911 Can Get You Evicted

The eviction of Beverley Somai for calling the police is part of a disturbing trend.

Last year, Beverley Somai learned a brutal truth that too many people across the country face: Calling the police can get you evicted.

In 2017, Ms. Somai and her adult disabled son moved to Bedford, Ohio, to seek housing stability and better educational and employment opportunities. However, a few months after settling in, Ms. Somai discovered that her neighbor played loud music at all hours of the night, making it impossible for her and her son to rest. Even worse, the neighbor began to intimidate Ms. Somai and her son by following them on their errands and lurking outside their home.

She asked for help from her landlord, who told her to call the police. So she did. But then the city of Bedford sent a letter to Ms. Somai’s landlord, citing her calls for help and threatening to impose steep penalties for any future police responses to the property. Because of the letter, her landlord filed an eviction action against Ms. Somai. 

Ms. Somai’s experience is far from an anomaly. Bedford’s criminal activity nuisance ordinance imposes civil and criminal penalties against property owners when there are two or more alleged violations of any law, excluding traffic violations, within a one-year period. The city enforces the ordinance based on calls for police assistance — even if the resident is the victim of the crime or needs aid, such as Ms. Somai and her son.

In fact, more than half of Bedford’s nuisance abatement letters were sent in response to domestic violence incidents. In one letter, Bedford informed a landlord that their tenant triggered the nuisance ordinance based on a “911 call from a male stating that his dad was hitting his mom.” 

The adoption of nuisance or “crime-free” ordinances reflects a broader trend nationally, with cities coercing landlords to penalize and evict tenants who call the police or who simply live in properties where criminal activities occur. Rather than promoting public safety, research shows that these ordinances discourage residents from reporting crime and create distrust of law enforcement. These ordinances particularly harm communities of color, low-income households, people with disabilities, domestic violence survivors, and other people who are otherwise deemed “undesirable.”

Bedford enacted its nuisance ordinance in direct response to its growing African-American population. During a city council meeting, the mayor explained:

“We believe in neighborhoods[,] not hoods. . . . That is one of the reasons we passed that nuisance law tonight. . . . [I have] made mention of the students walking down the streets and those are predominantly African American kids who bring in that mentality from the inner city . . . We are trying to stop that.”

Other cities likewise have used nuisance ordinances to target people of color. A study based in Milwaukee, Wisconsin, showed that properties in predominantly Black neighborhoods faced the greatest likelihood of receiving nuisance property citations. Similarly, an extensive investigation in Peoria, Illinois, revealed that the city concentrated its nuisance ordinance enforcement in predominantly Black neighborhoods and against buildings with predominantly Black tenants. 

The ACLU challenged a Minnesota city's ordinance that allows law enforcement to tell landlords to evict all members of a household when they simply suspect a resident engaged in even minor criminal activity. City officials enacted that policy as more people of color moved in, stating they wanted to “get rid of” residents who are “undesirable.”

These ordinances also disproportionately harm domestic violence victims, who generally experience abuse in their homes. An ACLU study of New York State nuisance ordinances found that domestic violence accounted for the largest category of nuisance ordinance enforcement in two cities, and nearly a third of all nuisance citations issued in Milwaukee arose from domestic violence incidents. Such enforcement has devastating consequences for domestic violence survivors, as property owners commonly respond to cities’ nuisance warnings or citations by evicting the victims and their children

Today, the ACLU is joining the ACLU of Ohio and The Legal Aid Society of Cleveland to challenge Bedford’s ordinance on behalf of Ms. Somai and the Fair Housing Center for Rights & Research (“Fair Housing Center”). The Fair Housing Center assists people in accessing housing and combats housing discrimination in Northeast Ohio. For years, the Fair Housing Center has warned Bedford about how nuisance ordinances may violate fair housing laws and has advocated for the repeal of such ordinances. It also has documented how nuisance ordinances, like Bedford’s, disproportionately impact domestic violence survivors — the vast majority of whom are women — and thereby discriminate on the basis of sex. Yet, Bedford kept the ordinance on the books, and over time, made it broader and more punitive. 

Our case argues that Bedford’s ordinance violates the First Amendment right to petition the government as well as due process and anti-discrimination protections. It builds on litigation we have brought against discriminatory nuisance ordinances in Arizona, Missouri, and Pennsylvania as part of our “Not A Nuisance” campaign.

But it shouldn’t take a lawsuit for communities to realize these ordinances are unlawful and inhumane. Cities can and have repealed these laws. Numerous states — including Iowa, California, Indiana, Nevada, Pennsylvania, Illinois, and Minnesota — have passed state laws preempting harmful nuisance ordinances. Other states, including New York, are considering legislation right now. And the U.S. Senate can address this problem by passing the housing protections of the Violence Against Women Reauthorization Act of 2019, which prohibit governments from penalizing crime victims who request law enforcement or emergency assistance.

No one should be silenced from calling 911 out of fear that they may jeopardize their housing. 

The Assange Indictment and Press Freedoms

The indictment seems to have been drafted not to justify the prosecution of Assange, but to tar legitimate journalistic activities by association.

This piece originally appeared at Just Security.

What to make of the indictment of Julian Assange?

The Justice Department hasn’t crossed the line that many feared it would: It hasn’t charged Julian Assange for publishing truthful information about matters of public concern. That kind of prosecution would have been unprecedented in the nation’s history and would have opened the door to criminal investigations of other publishers. Instead, the indictment accuses Assange of having conspired with Chelsea Manning to hack a government database. Hacking government databases isn’t protected by the First Amendment, and it isn’t a legitimate part of investigative journalism.

But the indictment is troubling nonetheless. It characterizes as “part of” a criminal conspiracy journalistic activities that are not just lawful but essential to press freedom. And there is reason to be concerned that the charge of “Conspiracy to Commit Computer Intrusion” that was unsealed today may not be the Justice Department’s final word on the matter. There are already reports that the government expects to bring additional charges against Assange once his extradition has been completed.

It’s not clear that the Justice Department will be able to establish a conspiracy to violate the hacking statute, as some have noted. Though Assange allegedly agreed to help Manning crack a password, cracking that password apparently wouldn’t have allowed Manning to access more files than she could already access—only to access the same set of files under a different username.  A few years ago, the Obama administration considered filing charges against Assange but ultimately decided not to. From this indictment, we can guess at some of the difficulties that might have led it to abandon the effort.

If the Justice Department had filed an indictment focused more narrowly on the alleged hacking, none of this would warrant much comment. The Justice Department would present its evidence; Assange would defend himself; and few people would raise concerns about the prosecution’s implications for press freedom. The problem is that the indictment seems to have been drafted not just to justify the prosecution of Assange but to tar legitimate journalistic activities by association with Assange’s alleged crime. 

The indictment characterizes everyday journalistic practices as part of a criminal conspiracy. Cultivating a source, protecting a source’s identity, communicating with a source securely—the indictment describes all of these activities as the “manners and means” of the conspiracy. The Justice Department says that Assange and Manning communicated using an encrypted chat service, but most national-security journalists communicate with sources using encrypted channels.  It says that Assange and Manning “took measures to conceal Manning as the source of the disclosure,” but taking measures to protect their sources’ identities is something that national-security journalists do all the time, for good reason. It says that Assange created “a special folder on a cloud drop box of Wikileaks” to allow Manning to share files with him, but many major news organizations use SecureDrop and other similar software to allow sources to share files with them securely.

This is to say that much of what the Justice Department characterizes as the “manners and means” of criminal conspiracy is just ordinary, everyday, and constitutionally protected journalism. In fact so much of the indictment is dedicated to describing legitimate journalism that a reader can’t help but wonder whether the Justice Department believes the alleged hacking was necessary to support an indictment here, or just sufficient.

The indictment is troubling for another reason, too. While Assange wasn’t charged with violating the Espionage Act—the World War I-era law that criminalizes unauthorized dissemination of “national defense information”—the indictment states that the purpose of the conspiracy for which he was charged was to violate the Espionage Act. This raises the question whether this indictment is just an opening salvo aimed at easing the path for extradition, with more substantial charges to be added later. It’s striking that after years of characterizing Assange as an agent of a hostile intelligence service, and worse, the U.S. government has now charged him only with trying, unsuccessfully, to crack a password.

We knew before this indictment that the current administration was threatening a more aggressive stance toward investigative journalism. James Comey, who was then the FBI director, documented a February 2017 meeting during which President Trump complained to him about leaks of classified information.  Comey told the president that he was “eager” to identify the leakers and “would like to nail one to the door as a message.” Evidently Trump wasn’t satisfied. An appropriate response, Trump told Comey, would involve “putting reporters in jail.”

This indictment doesn’t cross that line. But no one should be celebrating this shot across the bow of press freedom.

The BE HEARD Act Will Overhaul Workplace Harassment Laws

The groundbreaking, comprehensive bill takes on workplace harassment and discrimination.

For more than a decade, Tarana Burke and survivors across the country have used #MeToo to share their experiences of sexual violence, raise women’s voices, and respond to the needs of survivors. In its current incarnation, #MeToo has sparked an unprecedented examination of sexual harassment, including sexual assault, in our workplaces, and illuminated the multiple manifestations of workplace discrimination.

In the midst of this historic reckoning, the ACLU and coalition partners drafted and shared with members of Congress a blueprint— our Principles and Priorities for Legislative Action to Eliminate Workplace Harassment — for addressing the scourge of discrimination in every workplace across the country.  We said it was long past time that Congress confront the reality that our current laws had not done enough to stamp out harassment and discrimination, especially for our most vulnerable workers – those in low-wage jobs (who are predominantly women of color), those facing language barriers, and undocumented workers.

Finally, the voices of survivors and advocates reverberate in the halls of Congress this week with the introduction of a comprehensive and visionary piece of legislation: the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace Act (BE HEARD in the Workplace Act).

This bill strengthens and expands the reach of our nation’s antidiscrimination laws, removes barriers that prevent individuals from accessing justice, and helps employers create harassment-free workplaces—while also holding them accountable when they fall short.  Some of the legislation’s key provisions are described below.

It extends civil rights protections to all.

Until now, the prohibition against employment discrimination under Title VII of the Civil Rights Act has only applied to businesses with more than 15 employees; individuals who work alone, or in small workplaces like domestic workers have been virtually unprotected. But this law would extend those protections to all employees regardless of business size, as well as to those who don’t fall under the category of “employee,” including independent contractors, volunteers, interns, fellows, and trainees. The bill also provides LGBTQ workers with protection from employment discrimination.  

It gives survivors of sexual harassment a fair chance in court.

For the past 30 years, federal caselaw has required survivors to prove the harassment was “severe or pervasive” to prevail in court, an often unattainable standard that was unrelated to Title VII’s requirement that the conduct alter the terms or conditions of employment. Under this standard, even conduct like a supervisor squeezing an employee’s breast might not be enough to prove harassment. The BE HEARD in the Workplace Act offers a detailed roadmap for judges and employers to follow in identifying what conduct does and does not constitute unlawful harassment. This specificity will give much-needed guidance to the federal courts, which too often have excused objectively abusive conduct in the workplace, depriving victims of harassment of relief, and dissuading other from seeking legal redress.

It limits secrecy and promotes transparency.

Harassment and other forms of discrimination thrive in the shadows and are often perpetuated by agreements workers are forced to sign before taking a job that require discrimination claims to be decided in secret arbitration proceedings rather than in court. The bill would also prohibit employers from demanding that workers sign blanket non-disclosure agreements upon accepting a job.

It restores protections for workers harassed by supervisors.

In 2013 the Supreme Court held that an employee bringing a legal challenge against harassment by her supervisor had to meet a higher burden of proof if the supervisor could not fire, demote, promote, or transfer the employee – even if the supervisor did have the power to control her daily life at work, what duties she performed or the number of hours she was assigned. The bill would fix this incorrect interpretation of Title VII of the Civil Rights Act of 1964 and make it easier for employees to hold employers liable for supervisor harassment.

And it assists employers in creating harassment-free workplaces.

The bill authorizes research and data collection on workplace harassment and provides employers with model policies and trainings, best practices tailored to specific industries, and model workplace climate surveys to expose unreported harassment.

A work life free from harassment, violence, and other forms of discrimination must no longer be out of reach.  Our laws can require it, our employers can impose it, our culture can foster it, and every working person can demand it.

The BE HEARD in the Workplace Act moves us closer to that reality.  There is a great deal of work ahead, but we are in it for the long haul — starting today.

Kirstjen Nielsen’s Brutal and Calamitous Leadership of the Department of Homeland Security Comes to an End

She implemented some of the Trump administration’s most vicious policies and repeatedly violated the law.

Late yesterday, President Trump announced that Kirstjen Nielsen has resigned as the Secretary of the Department of Homeland Security (DHS). Trump said that Kevin McAleenan, the commissioner of U.S. Customs and Border Protection (CBP), will serve as Acting Secretary.

Nielsen’s tenure as head of one of the country’s largest government agencies was a humanitarian catastrophe, consistently showing a clear disregard for civil rights and people’s lives. Indeed, just over a week prior to her resignation, CBP agents forced asylum-seekers to sleep outside beneath a bridge in El Paso in extremely low temperatures and deprived of medical care.

Implemented family separation and expanded immigration detention

The most infamous chapter in Nielsen’s time at DHS was her implementation of an unfathomably cruel family separation policy. The administration tore thousands of children from their parents — without even keeping track of many of the families it separated — in an effort to punish and deter families who were lawfully seeking asylum in the United States. McAleenan, Nielsen’s acting replacement, signed a memo recommending the policy.

Nielsen’s imposition of the family separation policy was a humanitarian and legal disaster that was ultimately curtailed by an ACLU lawsuit and immense public outcry. But even after the administration formally ended the policy, Nielsen continued to shamelessly lie about it, going so far as to deny that the policy ever existed. Sen. Jeff Merkley (D-Ore.) asked the FBI to investigate whether Nielsen committed perjury when she testified to Congress that “we’ve never had a policy for family separation.”

A DHS inspector general report found that the department failed to track the children they separated from their parents, and DHS used information from the Department of Health and Human Services (HHS) to arrest and deport sponsors and potential sponsors of the detained children. And yet, the separation of families at the border continues.

The detention and separation of families was part of a broad attack on asylum-seekers and immigrants generally under Nielsen.

She presided over a huge expansion in immigration detention. The number of people in DHS custody skyrocketed during her tenure, reaching 50,000 on average per day in March. Since the department’s detention spending soared past the already bloated-budget approved by Congress, DHS had to funnel dollars from other agencies, including FEMA funds meant for disaster relief, in order to cover the costs of jailing immigrants in facilities notorious for substandard medical care, abusive practices, and violations of people’s constitutional rights.

Restricted asylum and protections for immigrants

She attempted to curtail asylum protections in numerous unlawful ways. For example, she ordered that people who had entered the country in between official points of entry were not eligible for asylum, even though United States law provides precisely the opposite. In November, the ACLU and partners won an initial ruling preventing the asylum ban from going into effect.

She also terminated Temporary Protected Status for people from El Salvador, Honduras, and Nepal and failed to redesignate TPS for those from Somalia, Syria, and Yemen, despite the fact that violence and natural disasters have displaced tens of thousands of people in their home countries. While she was serving in the administration but prior to her time as DHS Secretary, Trump also announced the termination of TPS for people from HaitiNicaragua, and Sudan. The ACLU of Southern California and partners obtained a ruling in October blocking the termination of TPS for El Salvador, Haiti, Nicaragua, and Sudan, citing “serious questions as to whether a discriminatory purpose was a motivating factor” in their decisions.

After Trump reportedly made racist comments regarding immigrants from El Salvador, Haiti, and African nations, and instead wanted to prioritize immigrants from Norway, Nielsen denied to Congress that the president used the word, but explained that he “was using tough language.” She also denied that his remarks were racist, bizarrely insisting that she herself didn’t know that Norway was a predominantly white country.

Nielsen also was in charge of implementing Trump’s Muslim ban — she was confirmed to her post one day after the Supreme Court allowed the third version of the ban to take full effect — and served as Chief of Staff to former DHS Secretary John Kelly during the implementation of the first and second versions of the Muslim ban.

Nielsen also championed the attempt to end Deferred Action for Childhood Arrivals (DACA), issuing a memo purporting to justify the administration’s decision to end the program, which provides protections for certain young immigrants, but was rebuffed by a federal court.

Paved the way to build Trump’s wall and expanded warrantless searches at the border

When Trump shut down the government for weeks in order to secure billions of more dollars to build his border wall, Nielsen was consistently at his side and parroting his false talking points. Even before the shutdown, Nielsen helped build Trump’s wall by waiving federal, state, local, and tribal laws and undermining border communities in order to accelerate its construction, and afterwards championed the president’s bogus “national emergency” declaration to build the wall, an unconstitutional order that the ACLU has challenged in court. The border wall would increase the number of deaths among migrants as they are “funneled” to harsher domains.

Along the border, the number of warrantless searches of electronic devices, such as cellphones and laptops, by CBP agents increased under the Trump administration. While Nielsen did not start the policy of warrantless searches, she defended DHS’s practices that violate people’s Fourth Amendment rights — practices that the ACLU, together with the Electronic Frontier Foundation — is challenging in a groundbreaking lawsuit. Under Nielsen’s leadership, social media “vetting” expanded dramatically, despite concerns about unfairly targeting Muslim immigrants and immigrants from Muslim-majority countries, and expanding to all immigrant and nonimmigrant visa applicants.

Nielsen’s disastrous and unlawful policies could fill a book, and this is only a summary of some of her most egregious actions, which extend to tear-gassing toddlers and being in charge while two children died in Border Patrol custody.

Her resignation comes only days after Trump withdrew his nominee to lead Immigration and Customs Enforcement (ICE), saying that he wants “tougher” people to carry out his anti-immigrant policies. Seeing as Nielsen was one of Trump’s most brutal cabinet secretaries, this does not bode well for the president’s permanent replacement.

All in all, Nielsen’s legacy as an apologist and enabler of Trump’s detention and deportation machine will go down in history as one of the crucial — and cruel — moments of this presidency.

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