ACLU News

President Trump has No Idea How Online Speech Works

Yesterday, President Trump signed an executive order aimed at bullying social media companies and online platforms into changing how they moderate content online. The order came the day after President Trump tweeted that Republicans feel that social media platforms silence conservative voices. And, notably, just days after Twitter’s decision to place a fact-checking label on one of Trump’s tweets for the first time, calling out his blatantly false tweets about mail-in ballots and directing users to trusted journalistic sources countering the President’s lies.  

There is one part of the executive order we agree with. Its opening section identifies how online speech has become a central feature in public dialogue, and raises concerns about the monopoly power of a handful of private companies to control such an important forum for debate. We agree that Twitter and Facebook should be careful about their own content decisions, because they affect all of us. But that’s where our agreement ends. The remedy President Trump proposes in the rest of the Executive Order is far worse than the problem it identifies. In the name of free speech, it threatens official retaliation for speech that displeases the government. 

Let’s start with the Constitution, which prohibits retaliation for protected speech. Trump is telling Twitter, Facebook, and other platforms, “If you speak out in ways that displease me,” for example, calling out his lies, condemning his views, or adding context to his distortions, “I will make things much harder for you.” The First Amendment forbids such blatant, thin-skinned efforts to stifle expression — whether they are effected through formal or informal means. In the short term, such threats chill free expression, and are impermissible for that reason.   

At the same time, the extent of the order’s long-term effects remain unclear. The President has no more authority to amend an act of Congress or a provision of the Constitution than he does to silence those, including Twitter, who condemn his views and his policies. He can’t constitutionally do any of these things on his own, yet the order appears to attempt to do all three.

It directs the Commerce Department to ask the FCC to make a rule adopting the President’s interpretation of an important shield from liability for online platforms known as Section 230 of the Communications Decency Act (CDA 230). The FCC has no obligation to take up the request, and, even if it did, no authority to interpret CDA 230 in the ways the order suggest because they are contrary to the law’s clear language. However, that doesn’t mean it won’t try.

Other provisions, including a threat to withhold government contracts and advertising from online platforms whose speech decisions about what to post, not post, or comment on, level a direct threat of retaliation for protected private speech. And given the government’s substantial resources, that threat cannot be considered idle. It also cannot be considered constitutional. 

That brings us to one of the biggest problems with the executive order. It blames CDA 230 for online censorship, which entirely misconstrues the function and purpose of that statute. This fundamental misapprehension appears to be shared by many members of Congress, as well. In fact, Section 230 is critical to protecting free speech online, and threats to undermine it will undermine free expression.

By generally immunizing platforms from liability for the speech of their users, CDA 230 allows platforms to publish all sorts of content without having to calculate the legal risk presented if it were their own content, creating space for free communications and debate. That includes — as Donald Trump appears to have forgotten — his own tweets, even when they include lies.

It also includes the videos, photos, and tutorials each of us is relying on to stay connected today. If it weren’t for CDA 230, no website owner would permit public posts knowing that the site could be investigated, shut down, sued, or charged with a felony over one user’s illegal tweet or post — including that of the President. Without this protection, even the smallest blog would have to hire an army of lawyers to assess in real-time all content created and uploaded by users. It’s unaffordable, and unrealistic. Instead, sites would avoid legal liability by simply refusing to host user-generated content at all, effectively shutting down the platforms we have come to depend on for public discourse.

In fact, this is exactly what has happened in the past when Congress has amended CDA 230. SESTA/FOSTA, which the ACLU strongly opposed, was purportedly aimed only at creating platform liability for illegal sex trafficking. We warned at the time that, rather than face liability, platforms would engage in excessive censorship that would harm the LGTBTQ and sex worker communities in particular. As we predicted, after SESTA/FOSTA’s passage, entire web sites that provided forums for sex workers to connect, share information to protect themselves, and build community disappeared. Google and other remote storage sites began to scan for sex-related content and remove it from their systems, censoring legal content only to avoid liability risk. Speech and safety both suffered.

The changes the President seems to want, which would strip online platforms of CDA Section 230’s protections if they fact-check his statements on their platforms, or are deemed “biased” from the standpoint of a particular administration, could have the paradoxical effect of silencing even the President himself online. Without CDA 230 protections, those platforms would not expose themselves to the legal risk of hosting the President’s content — or anyone else’s.

Changes proposed by certain members of Congress, like Senator Lindsey Graham, would harm our online speech rights in different ways. For instance, the changes to CDA 230 proposed by Sen. Graham’s EARN IT Act, which the ACLU also strongly opposes, would not only harm our online speech rights, but also undermine our privacy online, again in ways that will disproportionately harm the LGBTQ and sex worker communities. Any changes to narrow CDA 230’s protections must be far more carefully considered.

CDA 230 protects people’s ability to create, communicate, and build community online. The ACLU will remain vigilant in ensuring that the Internet remains a place for self-expression and creation for all. We also urge vigilance on the part of members of Congress to protect free expression online as they examine CDA 230. And we will be monitoring closely to see how federal agencies choose to enforce President Trump’s executive order, if at all.

Anthony Romero on Leading in a Time of Crisis

Anthony Romero started his job as executive director of the ACLU just seven days before September 11, 2001, and he’s been with us ever since. The subsequent “war on terror” presented new and widespread threats to civil rights and civil liberties. Now, he faces a new challenge: leading the ACLU during the COVID-19 pandemic. He joined the podcast this week to discuss how the ACLU is navigating the current moment.

“In moments of crisis, in moments of fear, civil liberties are often imperiled,” Romero told our host, Emerson Sykes. The organization has had to “adjust to our understanding of what liberty and freedom meant at a time like this.”

While the ACLU’s values and goals have largely not changed during this pandemic, Romero discusses how our work continues to evolve and grow over time, and how our vigilance is more necessary than ever.

You can listen to this episode here:

Anthony Romero on Leading in Times of Crisis

Anthony Romero has been the Executive Director of the ACLU for nearly 20 years. He’s seen the organization through periods of massive growth and numer…

Listen to this episode

Maine’s ISP Privacy Law Does Not Violate the First Amendment, Much as ISPs Would Like for It To

Without many of us even realizing it, our use of the Internet reveals deeply private information about us, ranging from the contents of our communications to details about our finances, health, and exact location. This information — especially when aggregated — provides an intimate window into our personal lives and can reveal a great deal of personal, private information about us, like our health care needs and personal or political beliefs.
 
For each of us, there’s at least one entity that can see perfectly through that window: our “broadband information access service” provider, more commonly known as an Internet service provider or ISP. In order to even access the Internet, we must each rely on an ISP; our computers and phones have to connect to their networks before we can send and receive information online. As a result, they are uniquely positioned to collect, retain, and analyze troves of personal information about us.
 
Without regulation, they can use our personal information in any manner they please. As their track record shows, they often choose to use it in privacy-invasive ways, like creating extensive portfolios of their users’ online activity and injecting “super cookies” that allow third parties to track individual customers.
 
This perfect storm raises not only serious online privacy concerns, but free speech and information security concerns, too. Unwanted surveillance can chill us from speaking freely, deterring us from voicing unpopular or simply private opinions. Equally, access to personal information, should it end up in the wrong hands, could open us up to everything from personalized phishing emails to identity theft and bank account fraud.
 
In an effort to quell this storm and put some control back in consumers’ hands, Maine passed “An Act to Protect the Privacy of Online Customer Information.” That law requires ISPs to get approval from customers before selling or using their personal information — everything from social security numbers and billing information to details derived from Internet use, like browsing histories and app usage, precise geolocation, financial and health information, and even the contents of communications.
 
A group of ISPs are now challenging this privacy law, claiming that it infringes on their First Amendment rights by unconstitutionally restricting how they use or disclose customer personal information.
 
They’re right that this law regulates their speech: It governs the use and dissemination of information. But they’re wrong to call it unconstitutional.
 
As we explain in a friend-of-the-court brief we filed with the ACLU of Maine, the Electronic Frontier Foundation, and the Center for Democracy and Technology, Maine’s law regulates commercial speech, a category of speech that relates solely to the economic interests of the speaker and its audience. And the law satisfies the scrutiny that applies to regulations of commercial speech because it is narrowly drawn to advance the state’s interests in protecting consumer privacy, free expression, and security.
 
The law focuses on ISPs: entities that are uniquely positioned to see everything we do, say, and even think online. Consumers have no choice but to use ISPs if they want to access the Internet. And the law does not ban their use of customer information entirely; it simply requires consent from customers first. Since we have no control over whether that information — which relates entirely to our use of a commercial service — is created and shared in the first place, surely we should at the very least have some say in what ISPs can do with it. It speaks volumes about the intent of the ISP companies — and the money they make off the collection and use of private customer information — that they would rather file an expansive lawsuit than simply ask their customers for permission to use their information.
 
As an organization deeply committed to the protection of both free speech and data privacy, we take these issues seriously. Maine’s law gives us the power to say yes or no to the collection and use of our private information. It puts the decision about when ISPs can use and disclose customers’ personal information back where it belongs: in the hands of Internet users. Despite the ISPs’ insistence to the contrary, Maine’s law does not violate their speech rights, and in fact does a great deal of good in protecting consumers’ privacy rights. Other states are already looking to follow in Maine’s legislative footsteps by requiring customers’ approval before allowing ISPs to share or sell their personal data — as they should. Perhaps that is what is scaring the ISP companies the most.
 

Recidivism Will Only Decrease if Successful Reentry is Embraced as an Antidote for Mass Incarceration

While there are many policies drafted and bills legislated, really the only components that comprise successful reentry to the community are skills, support, and shelter. Thinking about what I needed when I came home from prison looks much different now than it did 20 odd years ago. Back then, I thought serving my time in prison was my punishment; I didn’t know I was facing a life sentence after leaving prison. And for many people reentering society after leaving incarceration, that’s what reentry is — a life sentence.
 
When the corrections officer stopped by my bunk to tell me I was being paroled, my world stood still, and my head spun. All of a sudden life after prison was real, and my time inside was finally over. After 2,095 days, I was finally going home, and I had no idea how unprepared I was for freedom. I thought it was going to be as simple as the woman that taught the pre-release class said it would be. She said all I had to do was be honest about my past and be willing to work hard. So, as I sat in that hot, stuffy gym with 750 other men waiting to be released from prison, I thought I had it all worked it out. It all seemed so simple.
 
Walking out of prison I was handed a check for $50 and a bus voucher. The voucher allowed for travel to Dallas or Houston, and from there I had to purchase my own bus fare to Austin. I was expected to provide myself with clothing, food, travel, and shelter with that same $50. To say I was being set up to fail is being gracious. I was released on Thursday afternoon and didn’t have to report to my parole officer until the following Monday morning, so I spent the weekend with family I hadn’t seen in years and convinced myself that everything was going to work out fine.
 
When I reported to my parole officer that Monday, he informed me I was to spend the next 60 days on an electronic monitor. The monitor was supposed to be affixed to my ankle, but it was too small, so I was forced to wear it on my wrist. The conditions of my release mandated that while I was on parole I was to be gainfully employed. Who did my parole officer think was going to hire me with an electronic ankle monitor on my wrist? How did he think I was going to explain that to a prospective employer?
 
He didn’t seem to think about how the monitor would affect my life or even whether it would affect my ability to comply. He didn’t care that I was unemployable. He didn’t care how many times I was denied an interview after my application was reviewed and I had disclosed my conviction. When I sat in that prison gym before my release, I came up with a plan to apply at McDonald’s and work my way up from there. Aim low, I told myself. Don’t get your hopes up. Now, with a monitor on my wrist, I was worried that even this plan wouldn’t work out.
 
I had convinced myself if I aimed low enough, I was bound to hit my target and everything would work out fine. There was no sense in aiming high, those days were far behind me. Those halcyon days of youth had been stripped from me, right along with my dignity and self-worth. Aim low, I thought, so when I didn’t hit the mark I could remind myself it was because I was a convicted killer. Not formerly incarcerated, but a felon convicted of voluntary manslaughter, undeserving of anything other than failure.
 
What I needed was someone who had been to prison and was successfully navigating reentry to mentor me. I needed someone to tell me that applying for a job, for housing, or for a loan was different for folks with a felony conviction. Having someone tell me that being a father, a son, and even a brother was totally different after prison would have made an enormous difference in my life. My family needed to be informed about the limitations that were going to be placed on me and my ability to find employment, housing, or treatment. My church needed to see me as who I had become, not who I was. Creating pathways to successful reentry is just as incumbent upon the community as the individual, as transformation and redemption is expected, if not demanded, from formerly incarcerated individuals.
 
There can be no sustainable drop in rates of recidivism until we embrace successful reentry as an antidote for mass incarceration. Society must embrace the reality that 95 percent of the people currently in prison are coming home, and we have to find a better way to onboard them back into our families, our neighborhoods, and our communities.

We’re Taking Clearview AI to Court to End its Privacy-Destroying Face Surveillance Activities

For several years, a little-known start-up based in New York has been amassing a database of billions of our faceprints — unique biometric identifiers akin to a fingerprint or DNA profile — drawn from personal photos on our social media accounts and elsewhere online. The company has captured these faceprints in secret, without our knowledge, much less our consent, using everything from casual selfies to photos of birthday parties, college graduations, weddings, and so much more.
 
Unbeknownst to the public, this company has offered up this massive faceprint database to private companies, police, federal agencies, and wealthy individuals, allowing them to secretly track and target whomever they wished using face recognition technology.
                                                     
That company is Clearview AI, and it will end privacy as we know it if it isn’t stopped. We’re taking the company to court in Illinois today on behalf of organizations that represent survivors of sexual assault and domestic violence, undocumented immigrants, and other vulnerable communities. As the groups make clear, Clearview’s face surveillance activities violate the Illinois Biometric Information Privacy Act (BIPA), and represent an unprecedented threat to our security and safety.
 
Face recognition technology offers a surveillance capability unlike any other technology in the past. It makes it dangerously easy to identify and track us at protests, AA meetings, counseling sessions, political rallies, religious gatherings, and more. For our clients — organizations that serve survivors of domestic violence and sexual assault, undocumented immigrants, and people of color — this surveillance system is dangerous and even life-threatening. It empowers abusive ex-partners and serial harassers, exploitative companies, and ICE agents to track and target domestic violence and sexual assault survivors, undocumented immigrants, and other vulnerable communities.
 
By building a mass database of billions of faceprints without our knowledge or consent, Clearview has created the nightmare scenario that we’ve long feared, and has crossed the ethical bounds that many companies have refused to even attempt. Neither the United States government nor any American company is known to have ever compiled such a massive trove of biometrics.
 
Adding fuel to the fire, Clearview sells access to a smartphone app that allows its customers — and even those using the app on a trial basis — to upload a photo of an unknown person and instantaneously receive a set of matching photos.
 
Clearview’s actions clearly violate BIPA. The law requires companies that collect, capture, or obtain an Illinois resident’s biometric identifier — such as a fingerprint, faceprint, or iris scan — to first notify that individual and obtain their written consent. Clearview’s practices are exactly the threat to privacy that the legislature intended to address, and demonstrate why states across the country should adopt legal protections like the ones in Illinois.
 
In press statements, Clearview has tried to claim its actions are somehow protected by the First Amendment. Clearview is as free to look at online photos as anyone with an internet connection. But what it can’t do is capture our faceprints — uniquely identifying biometrics — from those photos without consent. That’s not speech; it’s conduct that the state of Illinois has a strong interest in regulating in order to protect its residents against abuse.
 
If allowed, Clearview will destroy our rights to anonymity and privacy — and the safety and security that both bring. People can change their names and addresses to shield their whereabouts and identities from individuals who seek to harm them, but they can’t change their faces.
 
That’s why we’re teaming up with lawyers at the ACLU of Illinois and the law firm of Edelson PC, a nationally recognized leader in consumer privacy litigation, to put a stop to Clearview’s egregious violations of privacy. We are asking an Illinois state court to order the company to delete faceprints gathered from Illinois residents without consent, and to stop capturing new faceprints unless it complies with the Illinois law.
 
There is a groundswell of opposition to face surveillance technology, and this litigation is the latest chapter in an intensifying fight to protect our privacy rights against the dangers of this menacing technology. Across the nation, the ACLU has been advocating for bans on police use of face recognition technology, leading to strong laws in places like Oakland, San Francisco, and Berkeley, California, and Springfield and Cambridge, Massachusetts, as well as a statewide prohibition on use of the technology on police body cams in California.
 
We won’t let companies like Clearview trample on our right to privacy.

The FDA is Making Needless COVID-19 Risks a Condition of Abortion and Miscarriage Care. We’re Suing.

The COVID-19 pandemic has swept the globe and upended normal life. In the four months since the first U.S. case was reported, more than 1.5 million people have been infected and 100,000 people have died in the United States. To mitigate risk, public health authorities tell us to get our groceries and prescriptions delivered, wave to grandma from the window, and generally avoid all unnecessary trips and close physical interactions outside the home.        
 
Consistent with these guidelines, federal agencies have taken every opportunity to encourage telemedicine use and give clinicians the flexibility to forgo unnecessary in-person encounters in accordance with their clinical judgment. They have waived various rules requiring in-person visits, even for controlled substances like opioids.
 
But there is one striking exception: The U.S. Food and Drug Administration (FDA) continues to subject mifepristone, a safe, effective prescription medication used to end an early pregnancy or treat a miscarriage, to a uniquely burdensome restriction that is jeopardizing the health and lives of patients and clinicians, with particularly dire implications for low-income communities and communities of color.
 
The FDA requires that the mifepristone pill be dispensed only in a hospital, clinic, or medical office: Patients who have already been evaluated by a clinician through telemedicine or at a prior in-person visit are not allowed to fill their prescription by mail. Instead, they must travel to one of these clinical settings to pick up the pill — even if they are receiving no in-person medical services at that time, and even if they will swallow the medication later at home (as the FDA permits).
 
For months, leading medical authorities have implored the FDA to suspend this restriction and give clinicians who provide abortion and miscarriage care the flexibility they need to protect their patients during this crisis. But the administration is intransigent.
 
That’s why today we filed a lawsuit on behalf of a coalition of medical experts and reproductive health, rights, and justice advocates, led by the American College of Obstetricians and Gynecologists (ACOG), challenging the FDA rule that forces patients to take on unnecessary COVID-19 risks as a condition of receiving medication abortion and miscarriage care.
 
Of the more than 20,000 drugs regulated by the FDA, mifepristone is the only one that patients must obtain in a clinical setting, yet may self-administer unsupervised at home. It’s easy to see why no other drugs carry this restriction: There is no medical reason to dictate where a patient is standing when handed a pill they will put in their pocket to swallow later at home.
 
There is likewise no reason to impose this requirement on mifepristone, which has been FDA approved for 20 years and used by more than 4 million people. In the FDA’s words, mifepristone’s “efficacy and safety have become well established by both research and experience, and serious complications have proven to be extremely rare.” In fact, the FDA permits mifepristone to be sent to patients’ homes, in larger quantities and doses, when used for a purpose other than early pregnancy termination. 
 
Yet the FDA has maintained this unnecessary restriction throughout the pandemic — despite CDC guidance specifically encouraging patients to fill prescriptions by mail-order delivery wherever possible, and despite a national medical consensus that mifepristone prescribers need the same flexibility as other clinicians to forgo medically unnecessary in-person visits, consistent with their best clinical judgment, during this crisis.
 
As is virtually always the case when it comes to restrictions on abortion, the harm here is not borne equally. Low-income people and people of color, who comprise a majority of people seeking abortions, bear the brunt of the FDA’s restrictions. At the best of times, arranging transportation and child care in order to travel to a health care facility to pick up a pill is difficult or impossible for many patients. Some must travel hundreds of miles — or even take a flight — causing severe delays and blocking some patients from accessing abortion care at all.
 
Now, during a historic unemployment crisis with many schools and day cares shuttered, the FDA is forcing patients to take on life-threatening — and entirely unnecessary — risks in order to access essential health services. This is particularly dangerous for communities of color, who, due to longstanding inequities in access to and quality of health care and other manifestations of structural racism, are dying from COVID-19 at drastically higher rates.
 
Our coalition of plaintiffs represents tens of thousands of clinicians providing abortion and miscarriage care to patients across the nation, and the department chairs of obstetrics and gynecology at nearly 150 universities. It includes activists and organizers dedicated to removing barriers to high-quality pregnancy-related care that disproportionately harm marginalized communities. They have asked the FDA to do the right thing on mifepristone, but the agency has refused.
 
Pregnant people should not have to needlessly jeopardize their safety in order to access essential medication abortion and miscarriage care during the pandemic. We’re going to court to ensure that in this time of crisis, people do not have to subject themselves to unnecessary risk to access the reproductive health care they need.

ICE Records Confirm that Immigration Enforcement Agencies are Using Invasive Cell Phone Surveillance Devices

For years, immigration enforcement agencies have been using invasive cell phone surveillance technology known as Stingrays in near-total secrecy. To find out more, the ACLU and New York Civil Liberties Union filed a lawsuit under the Freedom of Information Act, and now we’ve forced the agencies to turn over documents revealing new details about the agencies’ practices. Today, we are publishing more than a thousand pages of record we’ve received from U.S. Immigration and Customs Enforcement (ICE) about their purchase and use of Stingray technology. The documents reveal some significant gaps in public knowledge about the agency’s practices and raise significant privacy concerns.
 
Stingrays, also known as cell site simulators or IMSI catchers, track and locate cell phones. The devices mimic cell phone towers by sending out signals that trick cell phones in the area into transmitting their unique identifying information, ensnaring not only a target’s cell phone but also those of nearby bystanders. Using those transmissions, government agents can precisely locate phones, and can learn the identities of all phones in a particular area.
 
We initially submitted a FOIA request to ICE and Customs and Border Protection (CBP) in 2017, after the Detroit News reported on a case where ICE used a cell site simulator to locate and arrest an individual on immigration-related charges. That request was met with two years of near silence from the agencies, so last December we filed a lawsuit asking a federal court to order ICE and CBP to produce a range of records about their use, purchase, and oversight of the technology. ICE has since handed over more than a thousand pages of documents. CBP, on the other hand, maintains that it can’t find a single page dealing with cell site simulators, despite public evidence that the agency has spent millions on them. On Friday, we filed a motion asking the court to compel CBP to live up to its legal obligations regarding transparency under the FOIA.
 
There’s good reason to demand transparency from these agencies. Through the documents we received from ICE alone, here’s what we’ve learned:

  • ICE upgraded their cell site simulator devices from the Harris Corporation’s Stingray II to a new model called Crossbow. Prior to release of these records, the existence of the Crossbow model was not publicly known. As of January 2020, ICE was still using Crossbows. Although records obtained through FOIA and other litigation in recent years has revealed some information about the costs and capabilities of the Stingray and other models of cell site simulators, we don’t know what the Crossbow can do, or whether it raises different concerns than other versions of the technology.
  • In September 2017, ICE said it had used cell site simulators 223 times, including 95 times to “apprehend” people and 104 times to “gather evidence relevant to a case against any apprehended individual.” From Jan. 1, 2019 to Oct. 7, 2019, ICE deployed cell site simulators 134 times, which located at least 80 people and resulted in 22 arrests. Fifty-one pages of weekly reports chart ICE’s use of this technology over time. From the piecemeal reported totals we received in sets of documents dated from 2017 to 2019, we can surmise that ICE used cell site simulators at least 466 times. These figures supplement data previously reported by  Buzzfeed News showing that from Jan. 1, 2013 to Oct. 11, 2017, Homeland Security Investigations, a branch of ICE, used cell site simulators 1,885 times.
  • For all of law enforcement officials’ talk about the need to maintain secrecy around law enforcement use of cell site simulators, a presentation by DHS’s National Cybersecurity & Communications Integration Center acknowledges that “hackers” and others can also obtain access to cellular communications data using Stingrays, and discusses a pilot program to deploy sensors to detect this technology in the National Capitol Region. The presentation reveals that in 2016, DHS “Detected likely IMSI catcher monitoring/tracking phones.” This document suggests that excessive government secrecy about cell site simulators may be self-defeating, by failing to alert American cell phone users about threats to the privacy and security of their communications.
  • Although DHS and ICE acknowledge that cell site simulators can interfere with cell phone calls in the area, the documents reveal that “Neither ICE nor USSS (United States Secret Service) has funded independent interference testing.” The FBI has similarly stated that it “does not test or measure the interference levels” of its cell site simulators. This stands in contrast to federal police in Canada, whose tests revealed that cell site simulators could interfere with more than 50 percent of 911 calls, leading the agency to mandate limitations on use of the technology. Senator Ron Wyden has repeatedly raised this problem with federal law enforcement agencies, but unless something has changed since the dates of these documents, DHS and the FBI don’t seem to be taking it seriously.
  • DHS requires all of its components that use cell site simulators, including ICE and CBP, to implement policies governing use of the technology. ICE’s policy governing the use of the technology is now public for the first time. According to the policy, ICE recognizes that it normally needs to get a search warrant before using a cell site simulator, except when there are “exigent circumstances.” But it is unclear if ICE regards this as the only exception to the warrant requirement, as both DHS’s policy and ICE training materials also say “exceptional circumstances” can justify bypassing the warrant requirement. The manner in which ICE has defined both “exigent” and “exceptional” circumstances in the training materials provides law enforcement officers with little guidance as to what these terms mean or when the agency considers them properly invoked. This is concerning because it raises the prospect that agents may be short-circuiting the need for judicial oversight when in circumstances where there is no true emergency.

There can’t be accountability without transparency. The release of these records — albeit with redactions — provides some helpful insights into what was previously an extremely secretive surveillance practice. For example, the documents provide multiple assertions that ICE and CBP are not using cell site simulators in civil immigration investigations.
 
That’s good news, but concerns remain. We know that despite claiming not to use Stingrays for civil immigration enforcement, ICE does use the technology in its ever-expanding category of “criminal” immigration investigations, including arrests for the crimes of illegal entry and reentry. And although the requirement to get a warrant is positive, we still don’t know what the agency believes qualifies as an “exigent” or “exceptional” circumstance that lets agents avoid the warrant requirement. Those are just a few of the outstanding questions.
 
We also continue to know virtually nothing about CBP’s use of this technology. CBP has stated that it searched for records three times in response to our FOIA request and has not identified a single responsive record. But the agency’s no-records response is impossible to square with publicly available information as well as the documents we received from ICE. A 2016 Congressional Report reveals that as of four years ago, CBP had spent $2.5 million to purchase 33 cell site simulator devices. And, in 2017 letters to Sens. Ron Wyden and Al Franken (redacted versions of which were provided to us for the first time in this case), DHS stated that CBP has used cell site simulators and was in the process of drafting a policy to govern their use.
 
We’re demanding the court order CBP to explain how it conducted its prior searches for records responsive to our FOIA request and to conduct a new search for responsive records.
 
The use of powerful, surreptitious surveillance equipment is concerning in any context. But when agencies such as ICE and CBP, with a long history of abusive practices, evade requests for information and then obfuscate provided information, we should all be concerned.

Reparations – Has the Time Finally Come?

During a lull one afternoon when I was a high school student selling Black Panther Party newspapers on the streets of downtown Washington, D.C., in 1971, I sat down on the curb and opened the tabloid to the 10-point program, “What We Want; What We Believe.” The graphic assertion of “Point Number 3” particularly grabbed me:

“We believe that this racist government has robbed us and now we are demanding the overdue debt of forty acres and two mules … promised 100 years ago as restitution for slave labor and mass murder of Black people. We will accept the payment in currency which will be distributed to our many communities. The Germans are now aiding the Jews in Israel for the genocide of the Jewish people. The Germans murdered six million Jews. The American racist has taken part in the slaughter of over fifty million Black people. Therefore, we feel this is a modest demand that we make.”

The absence of justice continually flustered me because, even at that young age, I knew that Black people had been kidnapped and brought to this country to labor for free as slaves; stripped of our language, religion, and culture; raped and tortured; and then subjected to a Jim Crow-era of lynchings, police brutality, inferior education, substandard housing, and mediocre health care. I did not know then about the massacres in Rosewood, Florida, or Tulsa, Oklahoma; the merciless experimentations on defenseless Black women devoid of anesthesia that led to modern gynecology; or about the enormous profits from slavery made by corporations, insurance companies, the banking and investment industries, and academic institutions.

But on a psychic level, I could feel in my bones the enslavement era’s inhumane cruelty to Black children — its destruction of kindred ties and its economic exploitation and cultural deprivation. There was an incessant gnawing in my soul for amends and redress. I was passionate about injustice, felt the idea of reparations to be reasonable and fair, and vowed to talk about the concept whenever and wherever I could.  My analysis, however, had not crystallized beyond a check. But just to mouth the word “reparations” was a starting point to its validity. Thus talk about it I did, despite my views being often rejected, ridiculed, or otherwise summarily dismissed.

Standing on the street corner that afternoon nearly five decades ago, little did I realize that I would one day be in the company of leading academics, economists, historians, attorneys, psychiatrists, politicians, and more — domestically and internationally — promoting the right to, and the need for, reparations.

Several members of the Black Panther party carry copies of the Black Panther newspaperCredit: Associated Press

The Fight for Reparations Has a Long History

But that day would be far into the future. 

Despite my advocacy and that of many others during my high school, college, and law school years and beyond, the issue of reparations for descendants of Africans enslaved in the United States was not fashionable, but fringe, and definitely not part of the mainstream popular discourse. Indeed, one would be branded as a militant or a revolutionary (both of which I was), or just plain crazy (which I was not), or in today’s dubious governmental surveillance parlance, a “Black Identity Extremist.”

Indeed, it is almost surreal being amidst all the buzz surrounding reparations today, from universities to talk show pundits and, interestingly, to 2020 Democratic candidates vying for the presidency.

Despite or perhaps because of today’s surge in attention to this longstanding issue, I feel it critical that the populace understands that the demand for reparations in the U.S. for unpaid labor during the enslavement era and post-slavery discrimination is not novel or new. The claim did not drop from the sky with Ta’Nehisi Coates’ brilliant treatise, “The Case for Reparations,” in The Atlantic, or from Randall Robinson’s impassioned book, “The Debt: What America Owes to Blacks,” both of which galvanized the issue in different decades and thrust it into national conversation.

Although there have been hills and valleys in national attention to the issue, there has been no substantial period of time when the call for redress was not passionately voiced. The first formal record of a petition for reparations in the United States was pursued and won by a formerly enslaved woman, Belinda Royall. Professor Ray Winbush’s book, “Belinda’s Petition,” describes a petition she presented to the Massachusetts General Assembly in 1783, requesting a pension from the proceeds of her enslaver’s estate — an estate partly the product of her own uncompensated labor. Belinda’s petition yielded a pension of 15 pounds and 12 shillings.

Former U.S. Civil Rights Commissioner Mary Frances Berry illuminated the case of Callie House in her book, “My Face Is Black Is True.” Callie, along with Rev. Isaiah Dickerson, headed the first mass reparations movement in the United States, founded in 1898. The National Ex-Slave Mutual Relief Bounty and Pension Association had 600,000 dues-paying members who sought to obtain compensation for slavery from federal agencies.

During the 1920s, Marcus Garvey and the Universal Negro Improvement Association galvanized hundreds of thousands of Black people seeking repatriation with reparation, proclaiming, “Hand back to us our own civilisation. Hand back to us that which you have robbed and exploited of us … for the last 500 years.” During the 1950s and 1960s, New York’s Queen Mother Audley Moore was perhaps the best-known advocate for reparations. As president of the Universal Association of Ethiopian Women, she presented a petition against genocide and for self-determination, land, and reparations to the United Nations in both 1957 and 1959. She was active in every major reparations movement until her death in 1996.

Queen Mother Audley MooreCredit: Associated Press

In his 1963 book, “Why We Can’t Wait,” Dr. Martin Luther King proposed a “Bill of Rights for the Disadvantaged,” which emphasized redress for both the historical victimization and exploitation of Blacks as well as their present-day degradation. “The ancient common law has always provided a remedy for the appropriation of labor on one human being by another,” he wrote. “This law should be made to apply for the American Negroes.”
       
After the Black Panther Party’s stance in 1966, the Republic of New Afrika proclaimed in its 1968 “Declaration of Independence:

“We claim no rights from the United States of America other than those rights belonging to people anywhere in the world, and these include the right to damages, reparations, due us from the grievous injuries sustained by ourselves and our ancestors by reason of United States’ lawlessness.” 

In April 1969, the “Black Manifesto” was adopted at a National Black Economic Development Conference. The manifesto, presented by civil rights activist James Forman, included a demand that white churches and synagogues pay $500 million in reparations to Blacks in the U.S. The amount was based on a calculation of $15 for each of the estimated 20 to 30 million African Americans residing in the U.S. He touted it as only the beginning of the amount owed. The following month, Forman interrupted Sunday service at Riverside Church in New York to announce the reparations demand from the “Black Manifesto.” Notably, several religious institutions did respond with financial donations.

In 1972, the National Black Political Assembly Convention meeting in Gary, Indiana, adopted “The Anti-Depression Program,” an act authorizing the payment of a sum of money in reparations for slavery as well as the creation of a negotiating commission to determine kind, dates, and other details of paying reparations. Consistently, the Nation of Islam’s publications — such as Muhammad Speaks and, later, The Final Call — have demanded that the United States exempt Black people “from all taxation as long as we are deprived of equal justice.”

The Modern-Day Reparations Movement

But it was the end of the 20th century that brought broad national attention to the call for reparations for people of African descent in the United States with the founding of the National Coalition of Blacks for Reparations in America (NCOBRA). I was proud to be a founding member of NCOBRA at the historic gathering on Sept. 26, 1987, which brought together diverse groups under one umbrella, from the Republic of New Afrika to the National Conference of Black Lawyers. For its first decade in existence, I served as chair of NCOBRA’s legislative commission.

Since the creation of NCOBRA, the demand for reparations in the United States substantially leaped forward, generating what I’ve dubbed “The Modern-Day Reparations Movement.” Inspired by and organized on the heels of the passage of the 1988 Civil Liberties Act, which granted reparations to Japanese-Americans for their unjust incarceration during World War II, NCOBRA reinvigorated the demand for reparations for African Americans and broadened the concept through public education, accompanied by legislative and litigation-based initiatives.

Also encouraged by the 1988 Civil Liberties Act, Rep.  John Conyers introduced a bill in 1989 to “establish a commission to examine the institution of slavery and subsequent racial and economic discrimination against African Americans and the impact of these forces on Black people today.” This commission would be charged with making recommendations to the Congress on appropriate remedies. The bill’s number “H.R. 40” was in remembrance of the unfulfilled 19th-century campaign promise to give freed Blacks 40 acres and a mule. Conyers’ “Commission to Study Reparation Proposals for African Americans Act” provided the cover and vehicle to have a public policy discussion on the issue of reparations in Congress.

Rep. John ConyersCredit: Associated Press

The 1988 Civil Liberties Act authorized the payment of $20,000 to each Japanese-American detention-camp survivor, a trust fund to be used to educate Americans about the suffering of the Japanese-Americans, a formal apology from the U.S. government, and a pardon for all those convicted of resisting detention camp incarceration.

It is a sad commentary that the U.S. government has not taken formal responsibility for its role in the enslavement or post-slavery apartheid segregation of millions of Blacks. It has never attempted reparations to African Americans for the extortion of labor for many generations, deprivation of their freedom and human rights, and terrorism against them throughout the centuries. The U.S. Senate and House did pass symbolic resolutions apologizing for slavery and segregation. However, the 2009 bill passed by the Senate contained a disclaimer that those seeking reparations or cash compensation could not use the apology to support a legal claim against the U.S.

Since the introduction of H.R. 40, several state legislatures and scores of city councils across the country have passed reparations-type legislation or resolutions endorsing H.R. 40. In 1990, the Louisiana House of Representatives passed a resolution in support of reparations. In 1991, legislation was introduced in the Massachusetts Senate providing for the payment of reparations for slavery, the slave trade, and individual discrimination against the people of African descent born or residing in the commonwealth of Massachusetts. In 1994, the Florida Legislature paid $150,000 to each of the 11 survivors of the 1923 Rosewood Race Massacre and created a scholarship fund for students of color.

In 2001, the California State Assembly passed a resolution in support of reparations. After a four-year investigation, the Tulsa Race Riot Reconciliation Act was enacted in 2001. Oklahoma legislators settled on a scholarship fund and memorial to commemorate the June 1921 massacre that left as many as 300 Black people dead and 40 square blocks of exclusively Black businesses, homes, and schools obliterated. That same year, a bill was introduced in the New York State Assembly to create a “Commission to Quantify the Debt Owed to African Americans.”

Bills are also pending within several other state legislatures, but the reparations movement isn’t just targeting state houses. City councils in the states of Arkansas, California, Georgia, Illinois, Maryland, Michigan, Mississippi, Missouri, New Jersey, Ohio, Pennsylvania, Texas, Vermont, Virginia, and the District of Columbia have all passed resolutions in support of H.R. 40.

Reparations advocates have also challenged corporations who benefited from the profits made from trafficking in human beings during the enslavement era. Countless companies and industries benefited and were enriched from the profits made as a result of chattel slavery.

There are companies that sold life insurance policies on the lives of enslaved persons, such as Aetna, New York Life, and AIG. Financial gains were accrued by the predecessor banks of financial giants like J.P. Morgan Chase and Bank of America. Others with documented ties to slavery included railroads like Norfolk Southern, CSX, Union Pacific, and Canadian National. Newspaper publishers that assisted in the capture of runaway persons include Knight Rider, Tribune, E.W. Scripps, and Gannett. The financial backers of many of the country’s top universities were wealthy slave owners, and it has been disclosed that the reason Georgetown University stands today is because the Jesuits who ran the college used profits from the sale of Black people to continue its operation.

Survivors of torture by Chicago police received an unprecedented compensatory package based on a reparations ordinance passed by the Chicago City Council in 2015. Numerous civil and human rights organizations, religious groups, professional organizations, civic groups, sororities, fraternities, and labor unions have also officially endorsed the call for reparations. In 2016, the Movement for Black Lives Policy Table released its platform, which prominently featured the issue of reparations.

The role that governments, corporations, industries, religious institutions, educational institutions, private estates, and other entities played in supporting the institution of slavery and its vestiges are roles that can no longer be ignored, dismissed outright, or swept under the rug. The time is now ripe that their involvement be recognized, examined, discussed, and redressed.

The Demand Deserves Serious Consideration

I am part of the inaugural cohort of commissioners on the National African American Reparations Commission (NAARC), convened by the Institute of the Black World 21st Century in 2016. The commission’s preamble asserts:

“No amount of material resources or monetary compensation can ever be sufficient restitution for the spiritual, mental, cultural and physical damages inflicted on Africans by centuries of the MAAFA, the holocaust of enslavement and the institution of chattel slavery.”

Recognizing these as “crimes against humanity,” as acknowledged by the 2001 Durban Declaration and Program of Action of the World Conference Against Racism in South Africa, the preamble goes on to assert that “the devastating damages of enslavement and systems of apartheid and de facto segregation spanned generations to negatively affect the collective well-being of Africans in America to this very moment.” NAARC has advanced a comprehensive, yet preliminary, reparations program to guide reparatory justice demands by people of African descent in the United States.   
 
Finally, although my primary focus has been on obtaining reparations for African descendants in the United States, it is critical to recognize that our quest is part of the international movement for reparations as well. As such, I have worked closely with supporters of reparations throughout the world, recognizing that the success of the movement for reparations for diasporic Africans anywhere advances the movement for reparations by Africans and African descendants everywhere.   

I am thrilled that my quest to have reparations seen as a legitimate concept for African Americans, begun nearly 50 years ago, is becoming a reality. The issue has become more precise, less rhetorical, and has entered the mainstream. And while cash payments remain an important and necessary component of any claim for damages, it is crystal clear today that a reparations settlement can be fashioned in as many ways as necessary to equitably address the countless manifestations of injury sustained from chattel slavery and its continuing vestiges.

Some forms of redress may include land, economic development, or scholarships. Other amends may embrace community development, repatriation resources, or truthful textbooks. Still, other areas of reparatory justice may encompass the erection of monuments and museums, pardons for impacted prisoners from the COINTELPRO-era, and repairing the harms from the War on Drugs.

Fifty years after I first entered the reparations movement, I’m optimistic. It’s hard not to be when H.R. 40 has been updated to include not just a mere study of proposals but also their development. It’s also hard not to be optimistic when a Senate companion bill to H.R. 40 has been introduced and even more astonishing when some Democratic candidates for the 2020 presidential race are saying they will sign the legislation if elected president.

Despite a resurfacing of white supremacy in the U.S., I can see the light at the end of the tunnel. I am buoyed by the reemergence of the spirits of Belinda, Callie House, and Queen Mother Moore as well as the resilience of “Reparations Ray” Jenkins, who kept the fire alive in Rep. Conyers to introduce H.R. 40 year after year. And I am inspired by the words of the great anti-slavery orator Frederick Douglass, who poignantly instructed that “power concedes nothing without a demand.”

The demand has been made and the time to seriously consider reparations has finally come.

READ THE FULL REPARATIONS SERIES

Nkechi Taifa is founder and president of The Taifa Group, LLC. An accomplished human rights attorney, she is a justice system reform strategist, advocate, and scholar.  

For Betty Riddle, Amendment 4 Win Makes Her A Part of Society, Not Apart

Betty Riddle made sure she was first in line to vote in the Florida primary this year. At age 62, it was her first time voting. “It was one of the greatest moments of my life,” she told the ACLU. Her family made her a T-shirt just for the occasion, which read first in line, first time voting.

As a Floridian, Betty was subject to one of the nation’s harshest felony disenfranchisement laws. Before Amendment 4, Florida barred her from voting for life because of past felony convictions, even though she completed her sentence. Voter disenfranchisement is one of the many collateral consequences people with a conviction can face after they complete their sentences. To Betty, not being able to vote made hers a life sentence because the penalty would continue as opposed to a one-time collateral consequence. “I felt bad seeing my friends vote,” she says, “and I felt like I couldn’t make a difference. But I came to terms with it.”

Betty is one of over a million Floridians re-enfranchised by the passage of Amendment 4 in 2018. It was the single largest voting rights expansion in the country since the 26th Amendment decreased the voting age from 21 to 18 nearly 50 years ago. Even though Floridians resoundingly voted in favor of Amendment 4, the Florida legislature quickly tried to undermine it by passing a law requiring newly eligible voters to pay off all the exorbitant court costs, fines, and fees levied against them at the time of their conviction before voting.

Florida also has no centralized database where returning citizens can determine how much they owe, making it nearly impossible for some individuals to determine whether they are eligible to vote.

This unconstitutional monetary requirement was a poll tax. The ACLU, the ACLU of Florida, the Brennan Center, and the NAACP Legal and Educational Defense Fund immediately sued Florida on behalf of Betty, a dozen other people with felony convictions fighting to restore their right to vote, and organizations including the Florida NAACP and League of Women Voters of Florida, that help register eligible voters. In October of 2019, we won a preliminary injunction, which the Eleventh Circuit Court of Appeals affirmed in February 2020. Yesterday, the federal district court ruled in our clients’ favor after a full trial.

Due to the COVID-19 pandemic, the eight-day trial was conducted virtually, which came with its own difficulties. But the trial went on, with witnesses delivering their testimonies from home and clients calling in to listen throughout the trial. 

As a mother of four, grandmother of 24, and great-grandmother of eight children, Betty knows she is setting an important example by fighting for her right to vote. “The fight that we went through got my grandkids to see how important it is to vote,” she says. “They tell me, ‘Grandma, you’re making a difference.’”
 
Like most people formerly incarcerated, Betty struggled for years to rebuild her life after completing her sentence. By the time she was released she had spent nearly her entire adulthood in the system, caught in a cycle of addiction that led to several convictions. After her release and recovery, she realized her fight was not over when she tried to apply for public housing and was rejected based on a background check — despite doing everything the application process required. 
 
“I said, ‘look. I’m homeless. I’m in college. I need my own place,’” recalls Betty. “I’m 57 years old and I’m doing the best I can.” After countless letters, phone calls, and persistence, Betty finally enrolled in college as a grandmother.

“It was eye-opening,” Betty says. “I didn’t realize that it wasn’t right until I asked myself, ‘Why are we paying to vote?’ When Julie called to ask me to join the ACLU lawsuit, it was a gift from God.”

Today, Betty looks forward to voting this November now that her right has been secured by the court order. She says she is ready to be first in line again. “I’m going to wear another T-shirt,” she laughs. “I don’t know what this one will say, but I’m going to wear it.”

Betty registered in January 2019 when Amendment 4 became effective, then faced more obstacles after the Florida legislature enacted a poll tax. Like many people with a felony conviction, she didn’t know how much she owed, and it was a challenge just to find out — especially since her convictions date back to 1975. After many calls, visits, and letters, she learned she owed over $1,000, which she could not afford to pay. The unfairness didn’t hit her right away. 

In 2018, Florida’s voters made clear they want returning citizens to rejoin the franchise. This court decision reaffirms that the right to vote cannot depend on your bank account. Winning back the right to vote, explains Betty, was something she thought would never happen. “It made me feel a part of, instead of apart. I knew that my voice would be heard.”

ICE’s Lack of Transparency About COVID-19 in Detention Will Cost Lives

Even before the COVID-19 pandemic, Immigration and Customs Enforcement’s (ICE) detention system was marked by its lack of transparency, accountability, and oversight. In recent months, things have grown worse, as COVID-19 has spread rampantly throughout the system. At a time when even closer scrutiny of the immigration detention system is needed, the usual channels of accountability and oversight have ended: ICE has banned oversight tours by Congress and stakeholder groups at all detention facilities nationwide, enacted heightened barriers to attorney access, and discontinued all social and family visits.

In light of this lack of transparency and growing concerns about ICE’s COVID-19 response, the ACLU is filing a Freedom of Information Act (FOIA) request to obtain records about what the agency has known about the catastrophic impacts of COVID-19 in the detention system and surrounding communities, and its plans and policies to address the outbreak — including decisions about deportations, testing, and training. This FOIA request builds upon the ACLU’s prior set of public records requests with the Trump administration and states across the country about COVID-19 in jails and prisons. 

We already know that COVID-19 in the immigration detention system is an unquestionable public health disaster. To address this, the ACLU and its affiliates nationwide have filed over 50 cases in the last two months to compel ICE to release people from immigration detention facilities, resulting in the release of more than 400 detainees to date. But without further action by ICE, the situation is certain to grow even worse. In the last six weeks alone, at least five people — including two detainees and three officers — have died after contracting COVID-19. Unless immediate steps are taken to release people to practice social distancing in their own homes, we will see numbers of confirmed cases and deaths grow rapidly.  

In the face of this increasingly deadly crisis, a response to our FOIA request is critical. ICE has already failed to provide timely, complete, and accurate information to the public about its response to COVID-19 in detention centers — even in sworn statements to federal courts. In the course of our litigation against ICE, we’ve unfortunately found that the government’s accounts of what is happening in detention cannot always be trusted.

For example, in a case that the ACLU brought with the National Immigration Project of the National Lawyers Guild, the Capital Area Immigrants’ Rights Coalition, and the ACLU of Maryland, a federal district court judge noted that ICE’s Deputy Assistant Director for Healthcare Compliance Jennifer Moon had sworn in a declaration under penalty of perjury that the government had tested all detainees in Maryland detention facilities with COVID-19 symptoms. After a review of ICE’s own records, the court concluded that “this statement, which the court relied upon in deciding [a prior] motion, proved to be demonstrably false.”

Indeed, the court concluded that “Respondents’ withholding of this information and failure to correct the record on this point … raises significant doubt whether the [detention center] will reveal suspected cases when they arise as to facilitate proper testing and responsive measures to protect the detainee population, or whether it will conceal suspected cases in the future and take no action, at substantial risk to the detainee population.” The court’s concern for ICE’s lack of COVID-19 testing is well-placed: Detainees have reported that people who are critically ill with COVID-19 symptoms have been denied testing and medical attention by detention officials.

In another case brought by the ACLU of Ohio, a federal judge similarly called into question the accuracy of ICE’s reported COVID-19 screening as the agency sought to downplay the threat of COVID-19 in the Morrow County Jail.

“ICE has provided the Court with 40 snapshots of temperature measurements …  Not only do none of these temperature readings indicate a fever, none was higher than 98.1 degrees. Eight were below 96 degrees, including one below 95 degrees, which is the clinical benchmark for hypothermia and requires immediate medical attention,” the court noted. “Respondents have no explanation for these low, and seemingly inaccurate, temperature readings, but they might be attributable to ICE’s usage of thermometers that expired in 2016,” the court concluded.

ICE’s untimely and incomplete information also extends to its public website about COVID-19, which includes a section on confirmed cases of the virus in immigration detention. Daily analysis of ICE’s information reveals several reasons for deep concern. Although ICE has reported the number of people who have tested positive for COVID-19 at specific facilities, it has not provided information as to how many people at each facility have been tested — critical information to understand how widespread the virus is.
It also appears that there may be serious irregularities with ICE’s data. For example, ICE has posted data where the additional number of confirmed cases of COVID-19 in detention is greater than the additional number of people tested — a mathematical impossibility.  

ICE’s information about the number of COVID-19 cases among detention staff and employees similarly paints a misleading picture. Although the government publicly reports the number of ICE employees who have tested positive, this does not include what ICE calls “third party contractors.” This approach likely excludes a large majority of detention officials in close contact with immigrants, because 80 percent of immigrant detainees are held at facilities owned or operated by private prison companies. ICE has also blocked local governments from releasing COVID-19 data about immigrant detainees who are housed in their jails and prisons, as it has done in New Jersey.

The Department of Homeland Security’s Office of the Inspector General recently announced that it is planning a review of ICE’s efforts to prevent and mitigate the spread of COVID-19 in its facilities. This is a positive step. In the meantime, ICE must also provide immediate, accurate, and comprehensive reports about COVID-19 in detention to the public. These reports should be specified by facilities, and include facility-specific data and information about third-party contractors, detainees who have been hospitalized since the COVID-19 pandemic began, and all deaths. ICE should stop blocking local governments from releasing COVID-19 data about immigrant detainees who are housed in their jails and prisons.

Immigration detention should not be a death sentence. At the end of the day, the only way to prevent a humanitarian disaster is to release people, including those who are medically vulnerable to the virus. If ICE fails to do so, it will be responsible for the lives lost.

“Nationals” but not “Citizens”: How the U.S. Denies Citizenship to American Samoans

With one glaring exception, all persons born in the United States or its territories are U.S. citizens. The exception are persons born in American Samoa — a U.S. territory since 1900 — who hold an obscure and discriminatory status as “non-citizen nationals.” In December, a Utah federal court rightly held that because American Samoa is a U.S. territory and part of the United States, the Constitution’s Citizenship Clause applies to persons born there just as it does to those born in the 50 states.  
 
We recently filed an amicus brief supporting this ruling. Appearing before the 10th Circuit, we argue that American Samoans are constitutionally entitled to U.S. citizenship and should enjoy all of the rights and protections that citizenship entails. The case revolves around John Fitisemanu, who has lived in Utah for over two decades, but is ineligible to vote there because he was born in American Samoa. John is a husband, a father of three, and a health care worker. As a taxpaying Utah resident, John wished to work for the government, but kept hitting walls because of his status. John and his co-plaintiffs — other Utah residents born in American Samoa — filed the lawsuit to secure their right to citizenship and their right to vote in the November 2020 general election.
 
The intermediate “non-citizen national” status has denied thousands the right to vote in most elections held in the 50 states and the District of Columbia. Among members of our nation, American Samoans truly stand alone: Persons born in other U.S. territories (for example, Puerto Rico) are citizens at birth and can vote in U.S., state, and local elections upon moving to one of the 50 states. And since American Samoans owe permanent allegiance to our country and were born in a territory under exclusive U.S. control for 120 years, it is difficult to see why laws that limit voting to citizens should automatically disenfranchise American Samoans.
 
Still, voting isn’t the only area where American Samoans are excluded from the core tenets of citizenship: Even if they reside in one of the 50 states, they may be denied the opportunity to run for office and represent their communities. In a recent example, Sai Timoteo — an American Samoan who ran in 2018 as a Hawaii state representative for the Republican Party — ended her run when she was disqualified by decades-old policies barring American Samoans from holding public office. These policies leave American Samoans on the outside looking in on our nation’s most revered democratic traditions.
 
The exclusion of American Samoans from these traditions, of course, means they aren’t represented in local, state, or federal government. But there is more: Persons born in American Samoa are denied the right to serve on juries, do not enjoy the same rights as U.S. citizens to petition for immigrant status on behalf of family members, and have to traverse a burdensome naturalization process if they wish to become U.S. citizens — again, notwithstanding the fact that they are born “Americans.” 
 
Moreover, even the more mundane harms of “non-citizen national” status are onerous. For example, federal, state, and local laws often require U.S. citizenship as a condition for public employment. That requirement excludes American Samoans from employment as police officers, firefighters, paramedics, or public school teachers. They can’t be court reporters in Utah, optometrists in New Mexico, or funeral home directors in Oklahoma, to name a few of the professions into which they’re barred entry. Even getting a driver’s license can be an issue. These laws and policies gravely limit everyday life, liberties, and opportunities for American Samoans living in the mainland U.S. — a reality for over 100,000 people.
 
As we note in our brief, American Samoans also serve in the U.S. military at remarkably high rates. In 2007, for example, American Samoans died in Iraq and Afghanistan at a higher rate per capita than troops from anywhere else in the U.S. or its territories. “Those wartime losses [were] strikingly tangible on the island: In keeping with local custom, most [returned] to be buried in the front yard of their family home, their graves flanked by the flags of both the United States and American Samoa,” wrote the Chicago Tribune. Yet unnaturalized American Samoan servicemembers and veterans cannot vote for their commander in chief, serve in specialized services like the Special Forces, or rise to be officers in the military that they serve.
 
American Samoa has been part of the national fabric for more than a century. We should no longer deny persons born there the benefits and rights to which all people born on U.S. soil are entitled. Doing so only perpetuates systems that foster stigma and division in our communities. The 10th Circuit can and must affirm American Samoans’ right to citizenship. 

Georgetown Students Demonstrate How Reparations Can Be Made to African-American Students

This spring, something extraordinary and worthy of imitation occurred on Georgetown University’s campus in Washington, D.C.

On April 11, two-thirds of the undergraduate student body who took part in a referendum voted “yes” to create a reparations fund for the descendants of 272 slaves the university sold in 1838 to save the university from bankruptcy. When the Maryland Jesuits sold these human beings into further bondage on brutal Louisiana cotton plantations nearly two centuries ago, they received $115,000 in return, or about $3.3 million today. Fast forward to the present, and Georgetown’s endowment is valued at nearly $1.8 billion — a premier American institution of higher learning built with blood money.

The effort to make amends for the university’s trafficking in human misery and subjugation was the work of the GU272 Foundation. The organization, founded by the descendants of that wicked sale, asked Georgetown students to increase their university tuition fees by $27.20 each semester to honor those whose lives financed the college’s continued existence. As Shepard Thomas, a member of a student group who advocated for the referendum and a descendant of some of the original 272 slaves sold in 1838, told The New York Times, “The school wouldn’t be here without them.”

Georgetown’s students have shown colleges and universities, particularly those that also profited from slavery, one way to right the wrongs of the nation’s original sin. In the name of reparatory justice, private and public universities should underwrite the establishment of reparations funds — similar to the Georgetown initiative — to ensure that students of African descent do not leave these institutions in debt.

Members of the National African American Reparations Commission (NAARC), such as myself, want to work with student leaders in petitioning the administrators at universities whose establishment was made possible by wealth generated from slavery, slave trading, and the unpaid labor of people of African descent to make restitution to African Americans in the name of racial healing. There have been presidential commissions and task forces at Brown, Harvard, Columbia, and other universities that have investigated and reported on the wealth these institutions accrued due to their direct or indirect participation in slavery and slave trading.

As a result of these inquiries, there have been efforts to change the names of buildings named after slave owners and traders, such as Yale’s Calhoun College, and other symbolic actions. However, given the persistence of extreme racial disparities in wealth between Black and white college graduates, there is need to address the income gap through the application of reparatory justice, which calls for repair, remediation, and restitution to those who historically and currently have been unjustly damaged and targeted for exploitation.

Economists have found that the income levels and unemployment rates of African-American college graduates are the same as those for white high school graduates. It is also reported that African Americans graduate from college with the highest student loan debt. In The Atlantic, Duke University economist William J. Darity reminds us “that completion of a college education leads blacks to carry twice the level of student loan debt than whites after a four year degree.” In addition, the default rate on student loans is much higher for African-American graduates, negatively affecting their creditworthiness at the outset of their professional careers.

At the same time, the descendants of the enslaved workers do not want the successors of their ancestors’ original oppressors to determine the form of reparations and reparatory justice. Georgetown University is a unique situation where the descendants of those enslaved workers are still being identified. In the case of Harvard, Yale, and other universities and colleges that benefited from the slave trade, it would be difficult, if not impossible, to locate actual descendants of the enslaved workers. Some could be found, but not many.

Slave cemetery in the Georgetown neighborhood, Washington, D.C.Credit: Library of Congress

Therefore, it is the responsibility of the current generation of African and African-American students to collect on “The Debt” that is owed. In the case of Brown University, whose founders accumulated their wealth through active participation in slavery and slave trading, the administration has pledged to use the school’s substantial endowment funds to ensure that no student — African American or non-African American — leaves the university in debt.

The students at other private schools with huge endowments need to organize and petition college and university officials to demand support for the establishment of an independent foundation devoted to receiving and disseminating reparations funds so that no African-American student graduates from these colleges and universities in debt. 

But what about the problem of low-income African Americans graduating from flagship state universities or other public colleges and universities in debt, crippling their ability to purchase a home, start a family, and save for the future?

Those who are interested in pursuing reparatory justice should mobilize and demand the formation of reparations funds to cover the financial needs of graduating students and alumni. African-American students can make this demand on the basis of their extreme underrepresentation at these tax-supported universities in the past and currently.

For example, while African-American taxpayers make up 6.5% of California’s population, African Americans were only 3.8% of the enrollment at the University of California in 2017 (10,785 out of 273,180). NAARC members will work with students interested in creating reparations funds to be used to increase the number of the African-American students enrolling in these institutions and in making sure that these students do not graduate from these schools in debt.

Reparatory justice is aimed at addressing the extreme disparities in wealth, income, formal education, health outcomes, home ownership, and other areas between African Americans and white Americans. Scholars have determined that these disparities can be traced directly to the enslavement of African Americans before 1865 and the racial exclusion and discrimination that continues into the 21st century. Pursuing reparations to address Black student debt, both at public and private schools, should be at the top of the political agenda of African Americans — as well as all progressive elected leaders and students who understand why African Americans are so underrepresented in America’s colleges and universities. 

READ THE FULL REPARATIONS SERIES

H.R. 40 Is Not a Symbolic Act. It’s a Path to Restorative Justice.

For nearly three decades, my former colleague Rep. John Conyers of Michigan would introduce H.R. 40, legislation seeking to establish a commission to study and develop reparation proposals. Though many thought it a lost cause, he believed that a day would come when our nation would need to account for the brutal mistreatment of African Americans during chattel slavery, Jim Crow segregation, and the enduring structural racism endemic to our society. With the rise and normalization of white supremacist expression during the Trump administration, the discussion of H.R. 40 and the concept of restorative justice have gained more urgency, garnering the attention of mainstream commentators and illustrating the need for a national reckoning.

Slavery is America’s original sin, and this country has yet to atone for the atrocities visited upon generations of enslaved Africans and their descendants. Moreover, the mythology built around the Civil War has obscured our discussions of the impact of chattel slavery and made it difficult to have a national dialogue on how to fully account for its place in American history and public policy. H.R. 40 is intended to create the framework for a national discussion on the enduring impact of slavery and its complex legacy to begin that necessary process of atonement.

The designation of this legislation as H.R. 40 is intended to memorialize the promise made by Gen. William T. Sherman, in his 1865 Special Field Order No. 15, to redistribute 400,000 acres of formerly Confederate-owned coastal land in South Carolina and Florida, subdivided into 40-acre plots. In addition to the more well-known land redistribution, the order also established autonomous governance for the region and provided for protection by military authorities of the settlements. Though Southern sympathizer and former slaveholder President Andrew Johnson would later overturn the order, this plan represented the first systematic form of freedmen reparations. 

With the withdrawal of Union troops from the South in 1877, the promise of Reconstruction proved short-lived, and over the next century and a half, the Black Codes would morph into Jim Crow segregation and federal redlining and the war on drugs and mass incarceration and racism in policing and underfunded schools — injuries not confined solely to the South. These historical injustices connect through a web of government policies that have ensured that the majority of African Americans have had to, in the words of President Obama, “work twice as hard as anyone else if you want to get by.” Black America’s unemployment rate is more than twice that of white America’s. Black families have just one-sixteenth of the wealth of white families. Nearly one million Black people — mostly young men — are incarcerated across the country. Though remote in time from the period of enslavement, these racial disparities in access to education, health care, housing, insurance, employment, and other social goods are directly attributable to the damaging legacy of slavery and racial discrimination.

Since its introduction, H.R. 40 has spurred some governmental acknowledgment of the crime of slavery, but most often the response has taken the form of an apology. Even the well-intentioned commitments to examine the historical and modern-day implications of slavery by the Clinton administration, however, fell short of the mark and failed to inspire substantive public discourse. For many, it was not until The Atlantic published Ta-Nehisi Coates’ “The Case for Reparations” that the mainstream public began to reckon with, or even consider, the concept of reparations. 

Though the federal government has been slow to engage on the issue of reparations, individuals, corporations, and other public institutions have engaged the discussion out of both necessity and conscience. In 1994, a group of California plaintiffs brought suit against the federal government, and by 2002, nine lawsuits were filed around the country by the Restitution Study Group. Though litigation has yielded only mixed success in court, a serious foundation was laid for alternative forms of restitution. For example, in 2005, J.P. Morgan & Company tried to make amends for its role in the slave trade with an apology and a $5 million, five-year scholarship fund for Black undergraduates in Louisiana. In 2008, the Episcopal Church apologized for perpetuating American slavery through its interpretation of the Bible and certain dioceses have implemented restitution programs.

In 2003, Brown University created the Committee on Slavery and Justice to assess the university’s role in slavery and determine a response. Similarly, in 2016, Georgetown University apologized for its historical links to slavery and said it would give an admissions edge to descendants of slaves whose sale in the 19th century helped pay off the school’s debts. These are only a few examples of how private institutions have begun reckoning with their past records. I expect that a growing number of institutions will be forced to examine their histories of discrimination, if for no other reason than increasing public scrutiny will force their history to light.   

Since my reintroduction of H.R. 40 at the beginning of this Congress, both the legislation and concept of reparations have become the focus of national debate. For many, it is apparent that the success of the Obama administration has unleashed a backlash of racism and intolerance that is an echo of America’s dark past that has yet to be exorcised from the national consciousness. Commentators have turned to H.R. 40 as a response to formally begin the process of analyzing, confronting, and atoning for these dark chapters of American history.

Even conservative voices, like that of New York Times columnist David Brooks, are starting to give the reparations cause the hearing it deserves, observing that: “Reparations are a drastic policy and hard to execute, but the very act of talking and designing them heals a wound and opens a new story.” Similarly, a majority of the Democratic presidential contenders have turned to H.R 40 as a tool for reconciliation, with 17 cosponsoring or claiming they would sign the bill into law if elected.
 
Though critics have argued that the idea of reparations is unworkable politically or financially, their focus on money misses the point of the H.R. 40 commission’s mandate. The goal of these historical investigations is to bring American society to a new reckoning with how our past affects the current conditions of African Americans and to make America a better place by helping the truly disadvantaged. Consequently, the reparations movement does not focus on payments to individuals, but to remedies that can be created in as many forms necessary to equitably address the many kinds of injuries sustained from chattel slavery and its continuing vestiges. To merely focus on finance is an empty gesture and betrays a lack of understanding of the depth of the unaddressed moral issues that continue to haunt this nation. 

While it might be convenient to assume that we can address the current divisive racial and political climate in our nation through race-neutral means, experience shows that we have not escaped our history. Though the civil rights movement challenged many of the most racist practices and structures that subjugated the African-American community, it was not followed by a commitment to truth and reconciliation. For that reason, the legacy of racial inequality has persisted and left the nation vulnerable to a range of problems that continue to yield division, racial disparities, and injustice. 

By passing H.R. 40, Congress can start a movement toward the national reckoning we need to bridge racial divides. Reparations are ultimately about respect and reconciliation — and the hope that one day, all Americans can walk together toward a more just future.

READ THE FULL REPARATIONS SERIES

Sheila Jackson Lee is a member of the Congress representing Texas’ 18th congressional district.

America, It Is Time to Talk About Reparations

We are two months away from the 400th anniversary of the first enslaved people arriving in what would become the United States of America. It is time to renew the public discussion about reparations to descendants of Africans who were enslaved as our country was forming and growing rich. 

First as colonies and then as a nation, America has existed longer with slavery (1619-1865: 246 years) than without it (1865-2019: 154 years). And the reality of the institution of enslaving people is not the “good food and a decent place to live” narrative of Bill O’Reilly on Fox News and others who minimize the horror of the practice. The first 100 of the 154 years without slavery were characterized by socially mandated and legally enforced white supremacy. There were 4,075 lynchings between 1877 and 1950 (an average of a little over one lynching every week).

If the 1965 Civil Rights Act, passed the year after three civil rights workers were killed in Philadelphia, Mississippi, “leveled the playing field” in America, descendants of enslaved Africans have lived “free” in America for about 54 years. Of course, that 54 years has been characterized by the Republican-inspired war on drugs, the Democratic 1994 crime bill, and a report from the Economic Policy Institute last year that identified “no progress” since 1968 in closing gaps between whites and Blacks in home ownership, employment, or incarceration. In this world, freedom does start to sound like “nothing left to lose.” 

President George H. Bush holds up a copy of the National Drug Control Strategy.Credit: Associated Press

In 1980, Congress responded to a campaign led by Japanese-Americans and established a commission to investigate the legacy of America’s imprisonment of Japanese-Americans in “camps” during World War II. The final report of the commission called the imprisonment of Japanese-American families for 3½ years a “grave injustice” motivated by “racial prejudice, war hysteria and the failure of political leadership.”

In 1988, 43 years after the end of the war, President Reagan signed the Civil Liberties Act that compensated more than 80,000 people of Japanese descent who were imprisoned in camps during World War II. The legislation offered a formal apology and paid out $20,000 in compensation to each surviving victim. America paid more than $1.6 billion as a symbol of trying to right this horrible wrong.

The legacy of enslaving Africans is no less a “grave injustice.” It too flourished because of racial prejudice and a failure in political leadership. America’s political leaders could not see the moral high ground because of notions of white supremacy and piles of money coming from enslaving a race of people. In 1619, some “20 and odd” enslaved people arrived in America. Less than 170 years later, the enslaved population had grown to about 700,000 humans, and America was producing 1.5 million pounds of cotton a year.

On the eve of the Civil War, America’s cotton production had grown to 2.3 billion pounds a year. It was 60% of all U.S. exports. The enslaved population was now almost 4 million humans. The estimated value of enslaved people in the American economy in 1860 was about $3.5 billion (about $100 billion in today’s money). 

The idea of reparations for slavery is not new. Most Americans know of the Emancipation Proclamation of 1862, but not many know about the Compensated Emancipation Act of the same year. That law authorized the payment of more than $1 million in 1862 money (more than $24 million in 2017) to D.C. owners of enslaved people for “lost property” when their enslaved people were freed. Believe it or not, America has already paid reparations for the practice of enslaving people — to those who did the enslaving. 

An objective, fact-based evaluation of America’s history regarding home ownership, education, the use of the criminal legal system, and other critical areas of American life will reveal a government-supported philosophy that is best described by Thurgood Marshall in his Supreme Court argument in Brown v. the Board. He described the concept of separate but equal as part of “the inherent determination that people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as is possible.”

If reparations are the right path for America, how do we get there? Is it through litigation, legislation, state-based work, or is it all three and more? Should payments be made to individuals or should benefits be distributed in other ways? Should every descendant benefit or only those who have a “need”? 

Numerous scholars, leaders, and organizations committed to racial justice have wrestled with these questions and others, and their work has made this opportunity for a public conversation possible.

Four years ago, Ta-Nehisi Coates’ monumental essay on reparations for The Atlantic won over the minds of many who had previously bristled at the idea. Between 1989 and his resignation in 2017, former U.S. Rep. John Conyers proposed H.R. 40, a bill that would establish a “Commission to Study Reparation Proposals for African Americans Act.” It was defeated every Congress. In 2016, the Movement for Black Lives called for reparations and published a list of solutions ranging from open access to public universities to a universal basic income.

Now, Rep. Shelia Jackson Lee has re-introduced HR 40. Presidential candidates are discussing the concept, and the 400th “anniversary” of the first enslaved people arriving in America provides an opportunity for serious consideration of this issue in terms of racial justice — an issue which is at the heart of America’s past and present. 

The ACLU believes the issue of reparations should be seriously considered by all Americans, and in furtherance of that belief, we are beginning a series of essays on the concept of reparations written by those who have labored on this issue for decades.

Congresswoman Jackson Lee has authored the first article on H.R. 40. You will hear from scholars and leaders associated with the National African American Reparations Commission, like Nkechi Taifa, who writes on her experience on being on the frontlines of the reparations movement since the 1960s. Dr. Julianne Malveaux, a political economist and president emeritus at Bennett College of Women, writes on post-13th Amendment terrorism and economic justice. Dr. V.P. Franklin, who edits the Journal of African American History, writes on his views about college tuition and technical training for descendants of enslaved people. Activist and lawyer Aislinn Pulley writes about the Chicago reparations ordinance, created in response to Chicago Police Department’s torture ring, and how that could be a model for reparations for enslaved African Americans. And Hilary Beckles, the vice-chancellor of the University of the West Indies and a chairman at the CARICOM Reparations Commission, writes about how the 21st century will know no greater global movement than the reparations movement. The ACLU is convinced that it is critical for these voices to be heard at this important moment in American history, and we want to do our part in making that happen.

When we talk about race in America, we are always trying to skirt the edges because getting to the heart of the matter requires a journey to a place where people and nations seldom want to go. William Burroughs described it as avoiding the “Naked Lunch” — that moment when everyone has to look at what is really on the end of their fork. It requires a journey to the front of the mirror, with all the lights on, to see who we really are as a nation and how we got to this point. 

George Orwell warned us that who controls the past controls the future. It is only by confronting the truth about how we got to 2019 that we can move forward together. We look forward to exploring the truth about reparations with the rest of America.

Read the full reparations series

This Family Just Taught CBP a Civics Lesson They’ll Never Forget

U.S. Customs and Border Protection has a long track record of mistreating travelers — citizens and noncitizens alike — in the name of national security. It has subjected U.S. citizens to dehumanizing searches and detentions for no good reason, harassed and interrogated journalists, searched tens of thousands of travelers’ smartphones and laptops, and used nakedly discriminatory criteria to target travelers of Iranian, Lebanese, and Palestinian heritage — then lied about doing so. And that’s just the tip of the iceberg.

The thread running through all these abuses is CBP’s apparent belief that the border is some sort of magical bubble in which the Constitution does not apply, and where travelers are simply at CBP’s mercy.

That’s flat wrong. A recent settlement our clients obtained in their lawsuit against CBP reinforces not only that we have rights at the border, but also that CBP must be held accountable for violating those rights.

Our clients’ story is a disturbing one. Abdisalam Wilwal, Sagal Abdigani, and their four young children, all U.S. citizens, were returning home to the Minneapolis area from a visit to Canada when they arrived at the border station in Portal, North Dakota. Shortly after they handed over their passports and birth certificates, CBP officers swarmed the family’s minivan with guns drawn, forced Abdisalam out of the car, and handcuffed him. The officers held Abdisalam captive in the station for approximately 10 hours — handcuffed for the entire time. At one point, he passed out from lack of food or water, requiring medical attention.

The officers held the rest of the family for the same period, prompting Sagal to use her son’s phone to try to call 911 and report that she and her family were being detained against their will at the border. Officers took the phone, searched it, and retained information from it, including information about the son’s Muslim faith.

The entire family was terrified, bewildered, and humiliated.

Hours into the detention, two agents with ICE’s Homeland Security Investigations (HSI) arrived at the station and interrogated Abdisalam using a standard questionnaire before directing the CBP officers to release the family.

Internal government records show that the officers treated the family this way not because there was any reason to believe that the family was violating the law or bringing in contraband. Indeed, the government admits they were not. They were treated this way because Abdisalam’s name appeared on an error-prone terrorism-related watchlist. He doesn’t know why he was watchlisted, and the government refused to tell him, despite his right to due process.

We filed suit on the family’s behalf, arguing that the government violated the family’s constitutional rights and seeking to prevent their rights from being violated again.

The government sought to dismiss our clients’ lawsuit, arguing as it has in other cases that the officers’ unlawful conduct was excusable because it happened at the border. The court rejected that argument and allowed the case to proceed.

Our clients have now reached a settlement with CBP that will help prevent such abuses from happening again. Under the settlement:

  • CBP will circulate a notice to officers assigned to land-border ports of entry in North Dakota and Minnesota reviewing what happened in our clients’ case and reiterating policies and rights regarding the use of force, personal searches, and detention procedures.
  • HSI will organize a training for agents and officers in Minnesota and North Dakota that similarly addresses this case and reiterates the rights of travelers against unreasonable searches and seizures, as well as due process rights.
  • HSI will issue a notice to all agents and officers in Minnesota and North Dakota reminding them to immediately review and remain in compliance with ICE’s Directive on border searches of digital devices. (We are separately challenging that directive as unconstitutional.)
  • CBP will confirm that the notation in Abdisalam’s record that prompted the family’s detention is no longer accessible to front-line CBP officers and will not cause anyone in the family to be subjected to heightened scrutiny — called “secondary inspection” — at the border in the future.
  • CBP will ensure that the records describing the family’s detention will not serve as a basis for future referrals to secondary inspection.
  • CBP will confirm that the records documenting the family’s detention are not routinely accessible on CBP systems and that CBP is aware of no reason why any of the family members would experience problems returning home from abroad in the future.
  • The government will pay the family damages for the harms they suffered.

The settlement makes clear that what happened to the family was wrong and that the government cannot treat the border as a rights-free zone. It also exposes the human toll of the federal government’s bloated and secretive watchlisting system — a due-process disaster. As with other post-9/11 policies and programs, that toll has been paid disproportionately and tragically by Muslims and people of Arab, Middle Eastern, African, and South Asian descent.  

Much remains to be done to ensure that the border isn’t a place where we’re forced to surrender our rights and dignity on spurious national security grounds. Our clients’ settlement moves us farther down the path to achieving that goal.

A Lesson From COVID-19: A History of Racism and Disease in Hawai‘i

As someone of Chinese descent who lives in the multicultural mixing pot that is Hawai‘i, I find myself thinking about the fact that May is Asian and Pacific Islander (API) Heritage Month, and how the opportunity to reflect on API heritage in the United States could not have come at a better time. In some ways, what’s happening today with COVID-19 is history repeating itself. As the disease has spread, there has also been a rise in anti-Asian sentiment and xenophobic attacks on Asian people throughout the country. These attacks are provoked and encouraged by the dangerous and inaccurate rhetoric spewed by the current administration, such as referring to COVID-19 as “the Chinese flu.” 

Disease outbreaks have long been racialized throughout history and used to systemically scapegoat certain groups of people. This panic-fueled racism intersects with other systems of oppression, such as incarceration, white supremacy, colonization, and poverty. 

Although the anti-Asian sentiment on the mainland has been more extreme, we’re still experiencing traces of it here in Hawai‘i, the state that boasts the largest percentage of Asian and Native Hawaiian and Pacific Islander populations thanks to a unique history of plantation labor immigration from Asia and Western colonization. In fact, Hawai‘i’s history of discrimination against API people is one we can learn from. 

When the first COVID-19 cases in Hawai‘i were confirmed in early March, Honolulu’s Chinatown saw an immediate 50 percent drop in business. The once bustling streets were suddenly silent and empty, while the malls continued to draw in large crowds. Around this time, a friend confided in me about how she feared for the security of her mom’s job as a waitress in a Chinese restaurant in Honolulu. The restaurant was losing customers, and her mom was losing shifts. 

This isn’t the first time Honolulu’s Chinatown has experienced racism catalyzed by a public health crisis.The bubonic plague, believed to have originated in China, spread throughout the world and touched down on the islands at the end of the 19th century. During this time, Hawai‘i was a thriving economic hub in the Pacific Rim coming to terms with full colonial control and the 1893 overthrow of the Hawaiian monarchy. Eurocentric ideology was at a high, which helped foster blatantly racist and false ideas, such as the belief that the “plague seldom attacks clean white people,” as one Honolulu resident wrote

Under economic pressure, officials first sought to quarantine Chinatown, a working class neighborhood made up of shanties and considered “dirty,” before resorting to burning down entire buildings where plague victims died as a method of “sanitation.” In early 1900, one of these fires burned out of control and swallowed a fifth of Honolulu’s buildings in flames. The residents of the homes that burned down were mainly Chinese, Japanese, and Hawaiian, who were then forced into quarantine camps for weeks with no proper compensation plan to help rebuild their lives. 

This displacement of lower working class families, which would leave them struggling to catch up economically for years to come, was a result of public officials overlooking one of the most vulnerable and therefore least influential populations. This political inaction was illustrative of how a society entrenched in white supremacy and colonialism failed to protect the people not considered valuable — in this case, poorer people and people of color.

When considering the intersection of racism and infectious diseases in Hawai‘i, we can’t overlook the leprosarium on the secluded Kalaupapa peninsula on Moloka‘i, an island west of Maui. The highly stigmatized leprosy, or Hansen’s disease, was first diagnosed in the islands in 1848. Little was known about the disease, and it was believed to be more contagious than it actually is. But as with the bubonic plague in Honolulu’s Chinatown, racism infiltrated the way it was handled by public health officials. 

From 1866 to 1969, over 8,000 people were permanently exiled to Moloka‘i for having leprosy. Those exiled were not only expected to die there, but society also shunned them as “impure” criminals simply for having the disease. About 97 percent of those exiled to the settlement were Native Hawaiian, a population already shrinking from other diseases introduced by European settlers, while foreigners with leprosy were reportedly allowed to leave the country. Although those exiled to the settlement were eventually given the freedom to return back to society, many found it difficult to be fully welcomed back, instead choosing to live out their lives on Moloka‘i. Today, researchers recall what happened on Moloka‘i to be an example of white colonist interest using public health discourse to segregate, tear apart, and ultimately disempower Native Hawaiian communities. 

These examples are not isolated events, and they should not be forgotten. If we don’t learn from the past, we risk further harming groups of people who are already marginalized. In Hawai‘i, two populations especially vulnerable to the pandemic — the houseless and the incarcerated — are disproportionately made up of Native Hawaiian and Pacific Islander peoples. Although Native Hawaiians make up 24 percent of the state’s population, they account for 39 percent of the prison population. 

This disproportionate representation shows up in our houseless population as well. In 2019, Hawai‘i ranked as the state with the second-highest rate of homelessness, and the majority of people who use homeless shelters are Native Hawaiian and Pacific Islander. It’s notoriously hard to make ends meet in Hawai‘i, where the cost of living is high, but the cycle of poverty is especially difficult for Native Hawaiians, who have been trying to recover ever since Europeans arrived. In 2017, the poverty rate for all Hawai‘i residents was 9.5 percent, but for Native Hawaiians, it jumped to 13.4 percent — the disparity likely due to lower education levels and lower wages. 

In California, despite making up a small part of the state’s population, Native Hawaiians and Pacific Islanders have the highest COVID-19 death rate of any group. And these aren’t the only groups of people being affected at a disproportionate rate — Indigenous, Latinx, and Black communities are also suffering due to racial disparities in our health care system across the nation. 

If this month serves any purpose, it is for everyone — not just those of API descent — to reflect on how racism itself is intertwined with systems of oppression. If the numbers above indicate anything, it’s that the harmful effects of colonialism and decades of systemic oppression are long lasting and impact countless aspects of many people’s lives. As a vehicle for racism, COVID-19 presents a critical lesson. This pandemic — and the others from Hawaii’s history — sheds light on the damaging legacy of racism and oppression. As health and safety are rightfully on people’s minds, it’s going to take everyone working together to forgo harmful, unproductive racist ideologies and instead advocate for our politicians and institutions to ensure that everyone feels protected and safe — now, and after the moment of crisis has passed.

The Absurd Attacks on the ACLU

On May 19, the National Review editors condemned the ACLU’s “absurd” lawsuit against Education Secretary Betsy DeVos’s new Title IX regulations, which govern sexual harassment and assault at schools that receive federal funding, arguing that we had sacrificed our principles by seeking to “weaken” due process standards. President Trump promptly retweeted it, though showed no evidence that he actually read it. But the National Review’s criticism bears no relation to the lawsuit we actually filed. Our suit challenges provisions letting schools ignore serious claims of sexual harassment altogether. It does not even challenge the very procedural protections the National Review champions under the guise of “due process.” We believe schools can and must take complaints of sexual harassment seriously and provide fair process to all students. There’s no contradiction between the two.

The ACLU has long favored fair process for all parties to such disputes. Indeed, in our comme on the proposed rules, and in a public statement when the final rule was issued, we expressed support for fair procedures including live hearings, the opportunity for cross-examination, access to evidence, and a written decision carefully addressing the evidence. Given all this, one has to wonder whether the National Review even bothered to review our public response to the rule, much less our complaint. 

Our lawsuit, filed on behalf of Know Your IX, Council of Parent Attorneys and Advocates, Inc., Girls for Gender Equity, and Stop Sexual Assault in Schools, does not challenge those aspects of the rule. Instead, it challenges provisions that govern schools’ responsibility to investigate and respond to sexual harassment complaints, not provisions requiring fair process for those accused of wrongdoing.

Specifically, we challenge a provision that allows schools to ignore any sexual harassment or assault that takes place off campus, such as in a student’s apartment, even if the perpetrator and victim are in the same classes and the incident has lasting effects on the campus environment. We challenge a provision that says colleges and universities can ignore widely known incidents of sexual harassment or assault if a formal complaint is not filed with a handful of school officials. It says that schools will not be held liable for responding unreasonably to claims of sexual harassment, so long as they are not “deliberately indifferent.” And it redefines “sexual harassment” to provide that it includes only those actions that are “severe, pervasive, and objectively offensive,” meaning that the school is free to ignore “severe” sexual assault if it’s not “pervasive,” and can ignore “pervasive” harassment if it’s not also “severe.” 

None of this has anything to do with the fair process rights of the respondent. It has to do with the obligations of schools to respond to sexual harassment complaints. 

What’s more, these changes depart not only from decades of prior practice, but also from the rules that continue to govern schools’ responsibility, under parallels laws, to respond to claims of harassment based on disability, race, or national origin. Why, we ask, has the Department of Education let schools off the hook entirely for harassment and assault that they would have to respond to if it were based on disability or national origin? The Department failed to justify this blatant double standard.

The only provision our lawsuit challenges that has anything to do with the actual process of adjudicating complaints concerns the standard of proof. The Department allows schools to adopt either preponderance of the evidence or the more demanding clear and convincing evidence standard, but requires any school that uses clear and convincing evidence for complaints against faculty to use the same standard in disputes between students. Our view is that the preponderance of the evidence treats both the complainant and the respondent equally. It doesn’t presume guilt, as the National Review suggests. It simply says that whoever has the more persuasive evidence wins. That’s the standard used for all civil disputes between private parties, including sexual harassment lawsuits. The clear and convincing evidence standard, by contrast, improperly favors the respondent over the complainant, because it means that the accused will prevail even if the complainant offers stronger evidence than the respondent. Where both parties’ access to education is at stake, we think preponderance of the evidence is the right standard. 

Claims that the ACLU has sacrificed its commitment to fairness are unfounded. To the contrary, we are fighting for fairness: fairness for those who suffer sexual harassment, who should be treated no worse than those who suffer harassment based on disability, race, or national origin. And fairness to both the complainant and the respondent, by adopting the standard of proof that prevails in all other harassment disputes.

We can and should take both sexual harassment and fair process seriously. Betsy DeVos did not.

Abortion Rights are on the Line in New Mexico’s Primary

Abortion is still legal in all 50 states, but if the past year has taught us anything, there is no guarantee it will stay that way. Should Roe v. Wade, the Supreme Court decision that legalized abortion, be overturned, several states — including New Mexico — still have abortion bans on the books that could go back into effect. In the case of New Mexico, a 1969 law that is mostly unenforceable could make abortion care a felony in almost every case.

This old abortion ban would require patients — including survivors of rape and incest — at any stage of pregnancy to beg for permission to have an abortion in front of a panel of strangers. Any person who performs an abortion outside of this inhumane process could be charged with a felony. People receiving this care could also be investigated and charged. This burden falls more on people of color, young people, those with limited income and LGBTQ+ communities when abortion is banned.

We want to change that. We came close to getting rid of the old abortion ban this past year with a narrow loss in the legislature. The bill had the support of reproductive freedom champions in both the House and the Senate and the governor had already committed to signing it. But after several key senators voted to keep the ban on the books, the measure failed by three votes.

We have heard loud and clear from our members and supporters across the state that protecting abortion rights is one of their top civil liberties priorities. So we decided to expand our advocacy effort and use the opportunity of the upcoming primary on June 2 to educate voters on this issue.

Over the final two weeks of the election, we will reach more than 25,000 likely Democratic primary voters in two key districts, Senate District 28 and 30. Our effort includes phone banks and texting, as well as a significant direct mail effort and a digital persuasion and get out the vote ad campaign — a steady drumbeat of information comparing the candidates’ abortion rights positions. Our goal is simple: To protect the right to and accessibility of abortion in New Mexico no matter what happens at the federal level.

Reproductive freedom and abortion rights are under unprecedented attack throughout the country. The protections guaranteed by Roe v. Wade have already been gutted in many ways, and other states have passed at least 483 abortion restrictions in the past decade with one goal in mind — to push abortion care out of reach, pushing pregnant people to seek care in other states. This makes New Mexico an important leader in reproductive health care throughout the Southwest and the country. We fear it’s only a matter of time before the Supreme Court acts to completely dismantle the remaining protections and we can’t risk losing critical abortion access for even one day in New Mexico. This is a distinct and urgent risk for New Mexicans, and it cannot be ignored.

Because of the elected officials who voted to keep this outdated law, the threat and stigma of a potential criminal investigation, arrest, and prosecution for medical treatment continues to hang over patients and their healthcare providers. On June 2, New Mexico voters will be able to use their ballots to prevent this dystopian future from ever becoming reality, and ensure abortion rights remain protected in our state no matter what happens at the federal level.

Paid for and authorized by American Civil Liberties Union, Inc.

We’re Suing to Protect Press Freedom During the COVID-19 Pandemic

Few things are more important during an emergency than a free and independent press to hold the government’s feet to the fire. During the ongoing COVID-19 public health crisis, reporters have debunked government statistics that undercounted infection and fatality rates, exposed public officials who dumped stock while telling the public that there was nothing to fear, and kept a running tally of President Trump’s many falsehoods.
 
Reporters are working double-time to hold our leaders accountable and keep the public well-informed. But in Puerto Rico, the free press is under direct threat.
 
Today, we filed a First Amendment lawsuit challenging two recently-enacted Puerto Rico laws that make it a crime to share information the government deems to be false about emergency conditions on the island. We represent Sandra Rodríguez Cotto and Rafelli González Cotto, two prominent investigative journalists who fear that the laws will be used to punish them for their reporting on the COVID-19 crisis, especially reporting that reflects negatively on the government. Because these laws pose an imminent threat to core First Amendment freedoms, we’re asking the federal court hearing our case to block them as soon as possible.
 
The first law, which was passed in 2017, makes it a crime to raise “false alarms” about “non-existing abnormalities” during a declared emergency. The second law, which was passed just last month in the midst of media coverage critical of Puerto Rico’s handling of the COVID-19 pandemic, makes it a crime to share “false information” about the government’s emergency orders and curfew orders with the intent to cause “confusion, panic, or public hysteria.” People convicted for violating these laws could face six months, or in some circumstances up to three years in prison, as well as thousands of dollars in government fines.
 
Just because these laws are limited to speech the government considers false does not mean that only false speech will be deterred. The laws’ broad sweep and vague language give people far too little guidance on what speech may constitute a crime, and government far too much discretion in deciding whom to prosecute. People will naturally think twice before speaking —or refrain from speaking entirely — if a factual dispute with the government or an inadvertent mistake or misunderstanding could land them in prison.

To prevent this kind of chill on public debate, the First Amendment protects false speech in most circumstances. And even unprotected false speech, like defamation, can’t be penalized if there’s a significant risk that it will deter speech on matters of public concern. Thus, for example, the Supreme Court has long held that criminal defamation laws must require the government to demonstrate “actual malice” – i.e., that the speaker knew (or at least strongly suspected) that the speech was false.
 
Puerto Rico’s “fake news” laws don’t include an actual malice requirement, which means that journalists cover the COVID-19 crisis at their peril. An article that happens to include an inadvertent mistake, or that contradicts the government’s official narrative (even when that official narrative is false), could easily lead to criminal prosecution.
 
Our clients’ fears that these laws could be used to punish journalists are not far-fetched. Under Puerto Rico’s former criminal defamation law, reporters were hauled into court and threatened with prosecution for exposing police corruption, even though the government had no evidence that anything the reporters wrote was inaccurate. Fortunately, that law was struck down for violating the First Amendment. These laws should suffer the same fate.
 
Access to reliable information is critical in times of emergency. “Fake news” laws may appear to promote this worthy cause by outlawing rumors and falsehoods. But the Constitution stands for the principle that the government cannot be trusted to regulate discussion on matters of public concern, and that a free press is the only reliable guarantee of a well-informed public. Especially in times of emergency, the First Amendment rights to free speech and a free press must be zealously defended against government meddling.
 
If the Puerto Rican government is genuinely concerned about the spread of misinformation during the COVID-19 public health crisis, then it should be promoting transparency rather than censorship. The government should be making it easier for journalists to inform the public about what is happening by holding regular press conferences, releasing pertinent records, and laying out the government’s proposed plan of action for public scrutiny. Laws criminalizing information the government deems false, on the other hand, will only make it easier for the government to clamp down on coverage it doesn’t like and harder for journalists to report the news the public needs to hear most.

How to Co-opt a Pandemic to Ban Asylum

Are you fleeing violence? Yes. 
 
Did you tell Border Patrol? Of course! 
 
What did they say? That there is no more asylum. 
 
Despite her pleas for protection, a 19-year old Salvadoran woman was summarily deported by Customs and Border Protection (CBP) to Ciudad Juarez, Mexico, according to a local advocate who interviewed her immediately afterward. The U.S. has a legal obligation not to return migrants to danger. CBP, instead, placed her directly in harm’s way again.
 
Yesterday, the Trump administration issued an indefinite extension of the order enabling that deportation, and more than 20,000 others, including more than 900 children, in the past two months. Under the order, agents quickly deport all migrants at the border who do not have prior permission to enter the United States, without allowing them the opportunity to seek protection from persecution that U.S. law guarantees.
 
The original 30-day order was issued by the Centers for Disease Control and Prevention (CDC) on March 20 and extended on April 20. The latest order functionally ends asylum at the border. 
 
According to leaked internal CBP guidance, only those who “make an affirmative, spontaneous, and reasonably believable claim that they fear being tortured in the country they are being sent back to” will be screened for eligibility for protection in the United States. So far, only two asylum seekers have been allowed to claim protection under this procedure. CBP has prevented the remaining 99.99 percent of migrants from even applying for asylum or other forms of humanitarian protection. 
 
The impact of the CDC order is devastating. The agency is not only placing adults and families in immediate harm, either in Mexico or in the very country from which they fled, but is doing the same thing to hundreds of unaccompanied children. 
 
Co-opting the COVID-19 pandemic to end asylum at the border is the culmination of Trump’s sustained war against those fleeing persecution. Over the past three years, the administration has employed various cruel schemes to dismantle protections, and to unilaterally abandon the welcoming tradition upon which they were built. The United States has historically promoted its global leadership on the protection of migrants and refugees and its robust laws to protect the persecuted. But the arch of U.S. efforts to protect those in need, which began with its key role in negotiating post-World War II international law and norms, has been twisted into the downward spiral of this government’s direct abuse of the most vulnerable.  
 
The New York Times reported that Stephen Miller, the president’s chief advisor on immigration, has tried to use the threat of “disease” as an excuse to close the border since at least 2018. With this latest order, he put that plan into practice. But nobody is fooled by this transparent attempt to use a public health crisis as cover. 
 
Public health experts have objected — strongly. Forty leading epidemiologists, public health experts, and former CDC officials wrote to HHS Secretary Azar and CDC Director Redfield criticizing the order’s “specious public health rationale” and calling for an end to the policy. The letter states that “the current administration is using the imprimatur of the Centers for Disease Control and Prevention (CDC) to circumvent laws and treaty protections designed to save lives and enable the mass expulsion of asylum seekers and unaccompanied children.” 
 
Congress is also taking note of the administration’s power grab under the guise of public health. The chairmen of three important House committees and members of the Senate Judiciary Committee demanded justifications for the suspension of protections for asylum seekers and unaccompanied children that are mandated by U.S. and international law. The House chairmen and Senator Menendez, ranking member of the Senate Foreign Relations Committee, publicly rejected the Department of State’s legal opinion, which they called “deeply flawed.” 
 
Trump officials may pretend otherwise, but it is absolutely possible to protect public health and preserve access to asylum and other humanitarian protection for people fleeing persecution or danger at the same time. Experts have developed recommendations to safely process asylum seekers, children, and other migrants at the border to help ensure that people in desperate need of protection can get it. 
 
Our country is undoubtedly facing a grave public health crisis. We reject the administration’s attempt to take advantage of the crisis to advance its anti-immigrant agenda and discard our legal obligations. The government must reverse the assault on asylum and rebuild a system that fairly and safely restores our proud tradition of protecting people fleeing persecution — if not under this president, then certainly under the next. 

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