ACLU News

A Border Officer Told Me I Couldn’t Opt Out of the Face Recognition Scan. They Were Wrong.

“Look at the camera,” a Customs and Border Protection (CBP) officer told me as I approached the primary inspection point at the Paso del Norte port of entry.

“Is that the face recognition technology?” I asked. “If so, I want to opt-out.”

“Look at the camera.”

“I want to opt-out.”

“Look at the camera.”

On the evening of November 25, 2019, I crossed from Mexico into the United States. Signs in the port noted the new use of face recognition technology and United States citizens’ option to “undergo alternative procedures.” After handing over my U.S. passport card, and despite my repeated protests, the CBP officer took my picture anyway.

My data was likely processed through a system of databases, handled by the Department of Homeland Security (DHS), an agency with a long history of employing abusive surveillance techniques. In the last year, DHS has unlawfully tracked journalists and advocates, and was the subject of data breaches that exposed the private information, including photos, of thousands of travelers.  

CBP, a component agency of DHS, began piloting the use of “biometric facial comparison,” or face recognition technology, in September 2018 at pedestrian crossing lanes in San Ysidro, California and vehicle lanes in Texas. On November 22, 2019, CBP announced the expansion of the technology to additional pedestrian lanes at ports in Texas, including the Paso del Norte port of entry in El Paso. This expansion came despite an internal review raising concern about the accuracy of such technology and despite serious problems identified by privacy experts about prior expansions at airports.  The agency intends to expand the use of face recognition nationally at airports — despite the documented concerns.

CBP deploys a variety of surveillance technologies at the border, claiming national security justifications, but Congress has not explicitly authorized the use of face recognition technology in the immigration context. Congress has mandated that the DHS collect biometric information to track travelers entering and exiting the United States to identify those who overstay their visa, but fingerprints — and other less troubling methods — could achieve compliance without the worries surrounding face recognition.    

Face recognition is one of the most dangerous forms of biometric tracking and carries a greater potential for growth into a widespread tool for spying on people as they move. Face recognition can be used for surveillance through public video cameras — mapping a person’s movement without their knowledge or consent and raising serious Constitutional concerns.

Photos collected by state motor vehicle agencies provide another source of data that could easily be coupled with face recognition to create a comprehensive surveillance system equipped to track U.S. citizens and immigrants alike throughout the country.

Given the many concerns and shortage of mechanisms to safeguard against abuse, immigration agencies should suspend their use of the technology at ports of entry. 

CBP claims the technology will facilitate faster border crossings but the technology is inaccurate, exposing crossers to further inspection if the system falters. Studies also suggest the technology is racially biased, with error rates rising significantly when applied to people of color.  

If I, carrying all the privilege of a white American lawyer, could not opt-out of the invasive technology, what chance do other travelers — and particularly people of color — have to assert their rights before an agency patterned on racial profiling and harassment? Indeed, many other travelers have been forced to submit to invasive face recognition — despite the agency’s promises that anyone can opt-out.

CBP clearly and consistently states that “it is not mandatory for U.S. citizens to have their photo taken” and if they wish to opt-out they should “advise the CBP officer when they approach the primary inspection area.” While no one should be subjected to this technology, CBP must minimally provide a meaningful opt-out option that does not mean hours of delay, and must train its agents on this policy. Even the best policies are meaningless if government agents are free to disregard them with impunity.

The CBP officer I encountered last week ignored my repeated protests, claimed ignorance of the signs plastering the port, and told me I could not opt-out. “Why are you so concerned? We have all your information anyway,” was the last thing the officer said before waving me through.

My concern is one we should all share: The continued expansion of surveillance technology at the border, under the guise of efficiency and security, signals the erosion of our privacy rights and the building of a system of government surveillance capable of intrusion in our everyday lives. Taking away every meaningful option to avoid new forms of surveillance simply cannot be an accepted border reality. The Constitution protects us all, even at the border.          

Senators Reveal Their Plans to Protect Consumer Privacy Online

The Senate this week held a hearing examining the first comprehensive privacy proposals to come from the leaders of the Senate Commerce Committee. The bills are likely to set the tone for much-anticipated final legislation safeguarding our privacy rights online.

Neither bill is perfect. But the Consumer Privacy Online Rights Act — introduced by Senator Maria Cantwell (D-WA) — offers a strong first step. Senator Roger Wicker’s (R-MS) bill, the United States Consumer Data Privacy Act of 2019, has several glaring deficiencies and should not move forward without significant improvement. 

Here’s how the two bills stack up on key issues: 

Preserving State-Level Privacy Protections

Sen. Cantwell’s bill preserves the rights of states to pass stronger privacy laws. States have often led the work to protect consumer privacy. While Congress has yet to act, California has passed comprehensive privacy legislation, Illinois has taken steps to safeguard our face and other biometric information, and Maine has limited how internet service providers can collect and use our information. Recognizing the important role states play in protecting our privacy, Sen. Cantwell’s bill makes clear that federal privacy legislation must serve as a floor – not a ceiling – leaving states free to pass laws that provide stronger protections.

By contrast, Sen. Wicker’s draft legislation would completely gut existing state privacy laws and prevent states from passing stronger laws in the future. Companies could use the legislation – if it were to become law – in efforts to gut existing state privacy laws, like the California law, and stop states from putting in place more stringent privacy protections. This would negatively impact states’ ability to protect the privacy rights of their residents. 

Strong Enforcement Mechanisms

As recent settlements with the Federal Trade Commission have demonstrated, federal fines for privacy-violating companies are often simply viewed as the cost of doing business, not a call to change harmful practices. To make privacy protections meaningful, consumers should be able to sue those companies for damages, and the FTC should have the authority to levy civil penalties and to set strong privacy rules.

Sen. Cantwell’s bill offers a strong approach. In addition to beefing up the authorities and resources of the Federal Trade Commission, the bill allows private citizens to sue companies who violate their privacy rights. Recognizing the difficulty in quantifying the cost of a privacy harm, the bill specifies the damages available to individuals per violation, and allows for the award of punitive damages, as appropriate. 

Sen. Wicker’s bill provides no such right. Instead, the bill leaves enforcement entirely to state attorneys general and the FTC, though the latter has increased authorities. This is simply not enough and is likely to lead to significantly weak enforcement, stranding people who have been harmed with no recourse.

Preventing Online Discrimination

It’s imperative that Congress act to stop discrimination from taking on new life in the 21st century. To that end, Sen. Cantwell’s bill includes provisions that would prohibit use of data to discriminate in housing, employment, credit, education, or public accommodations, and permits the FTC to enforce the prohibition. In addition, the bill would require data operators to conduct impact assessments to measure potential discrimination stemming from their use of an algorithm. As the bill advances, these provisions should be improved to provide other agencies, like the Consumer Financial Protection Bureau and Housing and Urban Development, the ability to monitor and take enforcement action against companies that violate these provisions. 

Sen. Wicker’s bill positively acknowledges that companies’ use of data to discriminate in ways that violate existing anti-discrimination laws is a problem that needs to be addressed.  It requires some operators to conduct impact assessments and stipulates that the FTC may refer cases of discrimination to the appropriate state and federal agencies, an authority that the FTC already has in many contexts.  This, falls far short of what is needed to prevent discrimination in the online ecosystem and is inferior to the approach in Sen. Cantwell’s bill.

Clear and Strong Data Usage Rules

Consumers should have control over their data. To that end, both bills prohibit companies from sharing data without an explicit opt-in for sensitive data, or opt-out for other types of data. Both also give consumers the right to access, correct, and request the deletion of their information. Sen. Cantwell’s bill would even prohibit companies from denying services or charging someone more if they choose to exercise their privacy rights.

The two bills, however, make an artificial distinction between sensitive and non-sensitive data, with the former afforded greater privacy protections. Personal data is personal, which means the value ascribed to certain data varies by individual. For one person, information about their race may be deeply sensitive. For another, this information may already be widely available, yet information about their reading or buying habits may be more personally revealing. Privacy legislation should afford a high level of protection to all information without distinction.

We encourage members of Congress to continue working together to enact legislation that protects our data, preserves state laws that provide greater protections, and gives people the ability to enforce their privacy rights. Consumers are counting on it to take action to protect their data.

Congress Must Act to Protect the Right to Vote

This week, the House is expected to vote on H.R. 4, the Voting Rights Advancement Act of 2019. The bill would help ensure racial barriers to voting are removed from elections across the country. Passing the VRAA will advance needed protections for people whose right to vote is under attack based on the color of their skin.

This will be the first time Congress votes on a bill to restore and update the protections of the Voting Rights Act since the Supreme Court crippled the law in the 2013 decision of Shelby County v. Holder. In delivering the 5-4 majority opinion, Chief Justice John Roberts expressly invited Congress to update the Act’s protections based on current conditions of discrimination. Congress must follow through on that invitation because we currently lack the tools to enforce everyone’s voting rights under the Constitution and federal law.

Congress enacted the Voting Rights Act in 1965 after trying and failing for almost a century to remedy the affliction of racial discrimination in the voting process. The most powerful enforcement tool in the Voting Rights Act was the federal preclearance process, established by Section 5. It required locations with the worst records of voting discrimination to federally “preclear” — or get federal approval for — voting changes by demonstrating to either the Justice Department or the D.C. federal court that the voting change would not have a discriminatory purpose or effect. What preclearance meant in practice was that certain states and jurisdictions with documented histories of voting discrimination could not enforce photo ID laws, for example, without showing that the ID requirement did not discriminate on the basis of race.

The Act also established a “coverage formula” to identify which locations suffered from the worst records of racial discrimination and would be subject to preclearance. Since its enactment in 1965, Section 5 has had a massive impact in dismantling voting discrimination — the biggest of any congressional action — successfully blocking more than 1,000 instances of discriminatory election rules advanced by state and local officials. Because of its effectiveness, Congress reauthorized Section 5 four times, most recently in 2006. At the time, Congress concluded that although the country had made significant progress in reducing barriers to voting, the evidence of enduring racial voting discrimination in the covered jurisdictions justified Section 5’s continued protection.

When the Supreme Court effectively nullified preclearance in 2013, the Court released the worst offenders from federal oversight of their voting changes. The decision, which came amid a surge of minority political participation following the 2008 election and 2012 re-election of our nation’s first African American president, catalyzed a renewed race to stop voters of color from exercising the franchise. These changes have purposefully targeted minority voters to counteract their increased political power. States that used to be covered by preclearance, and even those with less deplorable records, took the Shelby decision as a signal to enact voting restrictions with impunity, and the flood gates were opened to voting discrimination unlike anything the country had seen in a generation. A squall of voting restrictions was advanced on a national scale, including: photo ID laws, restraints on voter registration, voter purges, cuts to early voting, restrictions on the casting and counting of absentee and provisional ballots, documentary proof of citizenship requirements, polling place closures and consolidations, and criminalization of acts associated with registration or voting.

This rash of discriminatory voting laws has, in turn, resulted in an explosion of litigation to protect voters from state and local officials’ violations of federal law. Since Shelby County, the ACLU has opened more than 60 new voting rights cases and investigations and we currently have more than 30 active matters. Between the 2012 and 2016 presidential elections alone, the ACLU and its affiliates won 15 voting rights victories, protecting more than 5.6 million voters in 12 states that collectively are home to 161 members of the House of Representatives and wield 185 votes in the Electoral College.

The ACLU’s recent litigation experience reveals two things: our record of success in blocking discriminatory voting changes — with an overall success rate in Voting Rights Act litigation of more than 80 percent — reveals that state and local officials are continuing to engage in a widespread pattern of racial discrimination and are committing pervasive violations of federal law. It also shows that we lack the tools needed to stop discriminatory changes to voting laws before they taint an election. That’s because the discriminatory laws that the ACLU has ultimately succeeded in blocking have remained in place for months or even years while litigation proceeded — crucial time in which elections have been held and hundreds of government officials have been elected under unfair conditions.   

The key to Section 5’s strength is its prophylactic response: it temporarily suspends potentially discriminatory changes before, instead of after, they can impact elections. In adopting and reauthorizing the Voting Rights Act four times, Congress repeatedly emphasized the importance of creating an enforcement tool with the ability to block changes before they take root and impact voters. 

The House voting on the Voting Rights Advancement Act soon builds on its predecessor’s successful prophylactic approach in four distinct ways. First, it enacts a new preclearance coverage formula based on current conditions, ensuring that places with the worst records of discrimination or greatest risk of discrimination will have to preclear voting changes. Second, it institutes a new preliminary injunction standard so that potentially discriminatory voting changes cannot be enforced until a lawsuit alleging discrimination is fully adjudicated. Third, it establishes robust notice requirements for jurisdictions to provide public information on voting changes before elections, putting the public in a stronger position to weigh in with officials on the wisdom and impact of the proposed changes on minority voting rights. Fourth, the bill gives the Department of Justice increased authority to send federal observers to monitor voting conditions during elections, again permitting greater oversight over potentially discriminatory voting conditions, so they can be addressed before they impact voters. 

It is long past due for Congress to renew the protections of the Voting Rights Act. The price of inaction to protect the voting rights of Americans is high, and history offers a myriad of examples demonstrating its cost to the nation. Congress must act now to cement the legacy of the Voting Rights Act and guard the rights of all Americans.

Reducing HIV Transmission Requires Decriminalizing Sex Work

Transgender people are criminalized for our bodies.

We are profiled, stereotyped, and presumed guilty based on the way we look or for failing to meet gender expectations, and it must stop.

Nearly one in six transgender people has been incarcerated. For trans people of color, the number is one in two. It’s staggering, and it demonstrates the deep bias in our current laws and criminal justice system.

This World AIDS Day, let’s not forget that transgender women — particularly trans women of color — are also more likely to be living with HIV than cisgender people. The fight for trans justice cannot be separated from the work to reduce new transmission and provide care to those who are living with HIV, while ending stigma and criminalization for having HIV. To win this fight, we must decriminalize sex work.

Since the passage of the Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), trans sex workers have been pushed to hit the streets late at night or take other risky actions, which put them in more danger. They aren’t able to screen their clientele and can’t take precautions to protect themselves in case something bad happens to them.

Being back on the streets increases the risk for unsafe sex practices. Economically marginalized people face increased pressure to engage in risky behavior and have less ability to control their activities.

Trans women of color are frequently profiled as sex workers even when they are not engaging in sex work. This has highly impacted undocumented sex workers, who are at even higher risk of harassment and abuse. Walking while trans laws and no condoms as evidence laws can help stop the profiling of trans women and especially trans women of color.

Trans people who choose to engage in sex work still need the law to protect against coercion, violence, and abuse.We face arrest, abuse and violence. We deserve a legal system that protects us, not only from incarceration, but also from the dangers of life on the street where many of us are forced to turn for survival.

That’s why the ACLU’s Trans Justice campaign, along with local partners and organizations led by current and former sex workers, is fighting to end the targeting of trans people by decriminalizing sex work. Such reform would help to protect sex workers from HIV, lowering the risk of putting themselves in compromised situations. It would make interacting with clients safer, reduce violent interactions with police, and lessen the fear of talking to the police when abuse does happen.

This reform is especially important for sex workers living with HIV. In many states, what would normally be misdemeanor charges related to sex work become felonies for people living with HIV. These laws have been used to send trans women and others living with HIV to prison for years, even when there was no risk of HIV transmission. In some states, after incarceration, they need to register as sex offenders. These laws not only don’t stop HIV transmission — they make it more likely. They spread misinformation and stigma about HIV, push sex workers and clients into riskier choices, and make it harder for people to survive.

As the World Health Organization has found, sex workers are among the most vulnerable to HIV, and laws criminalizing their activities increase violence and stigma against them.

Sex workers deserve protection from violence and access to health care free from stigma. By changing our laws, we can bring sex work out of the dangerous corners of the world and into the light where people are protected — not targeted — by the law.

“If I Could Just Look at Her”

Watch the journey of two separated parents trying to cross the border and reunite with their children.

In October, the Trump administration admitted that in a 12-month period, beginning in July 2017, it separated 4,370 immigrant children from their parents at the border. Since then, over 1,000 more have been separated under a dubious loophole that allows the government to take children away from their parents if they have a criminal record or are suspected of fraud.

Hundreds of parents were deported to their home countries without their children, with no clear plan to reunify them. Given the impossible choice of having those children returned to dangerous situations or allowing them to stay in the safety of the U.S. to pursue asylum claims, many parents faced the prospect of never seeing their kids again. Along with a group of partner organizations, in 2018 the ACLU set out to find those parents and help them reunite with their children.

“Maria” was separated from her teenage daughter on Christmas Day in 2017. In this short documentary, watch her and another parent, Nery, as they travel to the border to try and make an asylum claim and see their children again. And read more about them here.

America’s Mask Bans in the Age of Face Recognition Surveillance

This post first appeared on Buzzfeed News.

Hong Kong’s High Court ruled Monday that a government ban on protesters wearing face masks was unconstitutional. The mask ban has become a flashpoint in the movement to defend democracy there, and is part of a growing battle between high-tech surveillance and evasion of such surveillance. Demonstrators have not only worn masks but also used umbrellas to shield themselves from surveillance cameras, destroyed CCTV cameras and “smart lamp posts,” and used lasers to neutralize them.

What many people do not realize is that a number of American states and cities also ban the wearing of face masks during protests. And in the United States, as in Hong Kong, the issue is likely to grow in significance due to the increasing prevalence of new surveillance technologies, especially surveillance cameras and face recognition.

Some of our anti-mask laws date back to the 19th century. A New York State law, for example, was originally enacted in 1845 to quash a sometimes violent rebellion by tenant farmers who dressed up as Native Americans to hide their faces. Some state laws apply narrowly (such as only during the commission of a crime) and others quite broadly. They typically include exceptions such as for holiday costumes, masquerade parties, sports and entertainment events, physical safety, protection from the cold, and religious beliefs.

Court challenges to American anti-mask laws have met with mixed success. A California law was struck down by state courts in 1979 in a challenge from Iranian-Americans who argued that it exposed them to retaliation by the Iranian government. Other courts have ruled that such laws are constitutional, most significantly the 2nd Circuit U.S. Court of Appeals, which upheld New York’s law in a case involving the Ku Klux Klan.

In fact, the KKK has been central to the history of mask laws in the United States, and that understandably complicates the issue for many people. A number of southern states, including Alabama, Florida, South Carolina, Virginia, and West Virginia, enacted mask bans in the late 1940s and early 1950s to repress the Klan. The political leaders in those states were acting not to help the Klan’s targets, but because they wanted to defend segregation as part of a “modern South” and felt that violent racist terrorism was making them look bad.

The political and technological contexts in which these laws are being applied are changing, however. Anti-mask laws today are being deployed more often against progressive protesters than Klansmen, and in ways that raise questions about selective prosecution.

New York State’s law was used to arrest Occupy Wall Street protesters, for example. In Alabama, police cited that state’s anti-KKK law to force people to remove their masks while protesting an April 2017 speech by a white supremacist. Alabama’s law was also used to arrest the organizer of a November 2018 protest over the fatal shooting of a Black man. In Virginia, several college students were arrested on felony charges and initially faced prison time for covering their faces while protesting a pro-Confederate rally. A legislator in Arizona proposed an anti-mask law, declaring that anti-Trump and Black Lives Matter protesters who damaged property were “absolutely” the “equivalent of the Ku Klux Klan.” (“Now, there are no hangings of white people, yet,” he added.)

At the ACLU, we continue to get queries from protesters and even from street performers dressed as superheroes who have been cited or threatened under a mask ordinance. But it’s the spread of facial recognition that is likely to raise the stakes around anti-mask laws the most. The more accurate and widespread the technology becomes, the more situations will arise where people won’t want to show their faces. The cameras that increasingly surround us will allow the police to cheaply and easily identify us — and who we’re with, even if part of a giant crowd.

It gets even worse when we realize that we can be identified that way repeatedly, with our presence recorded in databases and automated algorithms used to flag repeat protest activity, associational patterns, or anything else the authorities might want to know.

And of course it’s not just the authorities who can use face recognition. Even if we restrict its use by government, private parties who have access to photographs of a controversial event will be able to use them to identify us and harass us, retaliate against us at work, or worse.

If we allow government face recognition to continue to spread, the American context will increasingly resemble what we see in Hong Kong today: a struggle for power centered around who can observe and who can be observed. American laws should allow people the freedom to cover up their faces in protests or anywhere else. If necessary, rules should only target uses of masks that are intended to facilitate commission of a crime. We must maintain the freedom to publicly express ourselves while protecting our privacy, in a world increasingly designed to take it away from us.

We’re Grateful for the Constitution

Saying thanks for recent wins from ACLU lawyers

Thanksgiving is here: that time of year when we pause to take stock of all we’re grateful for. At the ACLU, we’re saying thanks for all the crucial wins from our legal teams — and for the Constitution.

In just the last few months, we’ve racked up many essential victories in the ongoing battle to protect civil liberties and civil rights. The scope of these victories is breathtaking: they span criminal justice, privacy, religious freedom, reproductive rights, due process for immigrants, racial justice, LGBTQ rights, and the right to protest the Keystone pipeline, among others. We’ve won crucial victories over those who would, absent our resistance, sacrifice liberty and rights to some other ends. For all of these wins, we are deeply grateful.   

Immigrants’ Rights

Preserving due process for immigrants. We obtained a court order blocking President Trump’s vast expansion of “expedited removal,” a summary deportation process that denies immigrants core procedural protections and eliminates virtually all appeals. We also won a temporary injunction requiring the government to afford access to lawyers for immigrants facing forcible return to Mexico who fear persecution there. 

Reproductive Freedom

Beating back state abortion bans. Our team won a preliminary injunction against Georgia’s law banning abortion, and another injunction against Alabama’s near-total ban on abortions. After seven states moved to introduce abortion bans earlier this year, we blocked five of the seven bans in court as unconstitutional, while our ally in this fight, the Center for Reproductive Rights, blocked the other two. In addition, the U.S. Court of Appeals for the Sixth Circuit upheld our injunction against an Ohio law prohibiting abortions based on the patient’s reason.

Protecting your health care. A federal judge in New York blocked President Trump’s so-called “conscience rule,” which would have allowed  doctors, nurses, and other health care providers nationwide to place their own views over the needs of their patience and refuse to provide health care to which they object on moral or religious grounds. The court held that the rule was arbitrary and rested on demonstrably false assertions by the administration.

Racial Justice

Tackling racial profiling in Mississippi. In Brown v. Madison County, we reached a groundbreaking settlement with the Madison County Sheriff’s Department to end racially-biased police practices. In 2017, we sued the department over its systemic targeting of black people for illegal — and often violent — searches and seizures. According to the settlement, the sheriff’s department must train deputies on proper practices and collect data on checkpoints and pedestrian stops that will be verified by a Community Oversight Board and plaintiffs’ attorneys. This is one of the first consent decrees in Mississippi to address racialized policing.

Transgender Justice

Challenging the refusal to amend birth certificates to accurately report gender. Ohio is one of three states that refuse to update the gender marker on birth certificates for people who have transitioned to live their true gender. A federal district court ruling affirmed our equal protection and free speech claims.

Voting Rights

Fighting the 21st century poll tax. In Florida, a state court blocked the requirement that returning citizens in Florida repay all fines, restitution, and fees associated with their sentences before regaining their voting rights. The court ruled that Florida must establish a process where people who cannot afford to pay their legal financial obligations can still regain their voting rights. This victory helps keep our Amendment 4 ballot referendum victory in place. 

Safeguarding voter access. In Tennessee, a court blocked restrictions on voter registration drives, including draconian fines and criminal sanctions. In Missouri, we successfully challenged the state’s failure to provide voter registration services to people who update their driver’s license address online — an omission that denied approximately 20,000 people annually a voter registration opportunity. And in Pennsylvania, our lawsuit prompted the legislature to amend its absentee voter rules to ensure the counting of any ballots received by 8 p.m. on election night

Purging voter purges. In Indiana, the U.S. Court of Appeals for the Seventh Circuit upheld a block on Indiana’s voter purge statute, which required removing voters from voting rolls without any notice based on the Interstate Crosscheck system, which originated in Kansas.  

The First Amendment …

Protecting the right to protest the Keystone XL pipeline. In Dakota Rural Action v. Noem, a federal district court blocked enforcement of the unconstitutional provisions of several South Dakota laws, including the recently-enacted Riot Boosting Act. The provisions threaten activists who encourage or organize protests, particularly protests of the Keystone XL pipeline, with fines, civil liabilities, and/or criminal penalties of up to 25 years in prison.

Stopping religious and anti-religious censorship. In Pennsylvania, we challenged the County of Lackawanna Transit System’s prohibition on all “religious” advertisements on mass transit, which was applied to reject an ad that used the word atheist. The Third Circuit held that the policy violated the First Amendment because it censored both religious and anti-religious viewpoints, under a scattershot censorship regime that offered unfettered discretion to government officials to approve or disapprove speech.

Ensuring the right to criticize government officials without going to jail. In New Hampshire, a federal judge ruled that a man twice arrested for criminal libel for criticizing the police could challenge the constitutionality of New Hampshire’s criminal libel law. 

Protecting the right to tell jurors the truth about their rights. In Colorado, we successfully supported the rights of criminal justice advocates to hand out pamphlets outside a courthouse advising jurors of their right to nullification by refusing to convict criminal defendants. The Colorado Supreme Court agreed with us that under the First Amendment, the advocates could not be prosecuted under a jury tampering statute.

Ensuring free expression of religion. We represented Airman 1st Class Sunjit Singh Rathour and obtained a religious accommodation from the Air Force to wear his turban, beard, and unshorn hair in compliance with his Sikh religious beliefs. Rathour became the first Airman to complete both basic training and advanced technical training while wearing his Sikh articles of faith.

And the Fourth

Reminding police to get that warrant. The Georgia Supreme Court unanimously held that police must obtain a warrant in order to download data stored in a car’s computer systems during an investigation after a car crash, and suppressed digital evidence obtained through a warrantless search. This is the first state supreme court to recognize the danger of warrantless access to the unprecedented types and quantities of digital data collected by modern cars.

Protecting your laptop at the border. A federal district court ruled that all electronic device searches at the border must be done pursuant to reasonable suspicion of contraband on the device. This is the first time any court has ever held that all border device searches must be based on reasonable suspicion. The government had argued that it was free to search anyone’s laptop for any reason, without having any basis for suspicion.    

Criminal Justice Reform

Justice for the indigent. In a case challenging the constitutionality of a forfeiture as “excessive” under the Eighth Amendment, the Indiana Supreme Court adopted the view we advocated in our amicus brief: that in assessing whether a fine is excessive, the courts must take into account the economic circumstances of the individual. As the court wrote, “To hold the opposite would generate a new fiction: that taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.”

Enforcing the right to counsel. We settled a class-action lawsuit against two municipalities for denying lawyers to criminal defendants who can’t afford private attorneys. Under the settlement, both municipalities will contract with a public defender to provide meaningful representation and provide notice of the right to counsel to every person charged with an offense that carries the possibility of jail.

Fighting unfair pre-trial conditions. In Arizona, we successfully challenged pre-trial conditions that included setting unaffordable bond without due process and making defendants pay to monitor themselves via GPS. The Arizona Court of Appeals ruled that people cannot be forced to pay for the cost of their own pretrial conditions.

Reining in bounty hunters. In Mitchell v. First Call Bail and Surety, Inc., the ACLU, the ACLU of Montana, and Terrell Marshall Law sued bounty hunters, a bail bonding company, and insurers for a violent break in and attack on a Montana family. This is the first time that a court has extended the possibility of liability for bounty hunting abuses all the way up to the bail insurance companies in a Racketeer Influenced and Corrupt Organizations scheme.

Protecting Prisoners’ Rights

In Oklahoma, we got the Oklahoma Department of Corrections to move death row prisoners from the windowless underground bunker where they were confined to a unit that provides greater access to natural light, fresh air, and outdoor exercise. In Pennsylvania, we achieved a class action settlement that will end the automatic and permanent solitary confinement of prisoners on death row in that state. And in Arizona, a federal court rejected prison officials’ effort to terminate a consent decree requiring the provision of out-of-cell time to maximum security prisoners. 

This is truly remarkable work by a truly remarkable group of advocates across this country, state affiliates, national attorneys and paralegals, and more. We are grateful for all the work these victories reflect, and for the courageous judges who have ruled in favor of the disadvantaged, dispossessed, and marginalized, and in favor of the Constitution. Together, we’re ensuring that the Bill of Rights remains a reality for all.

It’s Past Time Congress Reined in the President’s Emergency Powers

The full Senate could soon consider legislation that would rein in the president’s emergency powers and bolster the principle of separation of powers that underpins American democracy. This legislation, the ARTICLE ONE Act as amended by a Senate committee, contains sensible reforms of the National Emergencies Act of 1976 (NEA), the flawed and outdated law that governs the emergency declaration process.

Under the current national emergencies declaration process, Congress must muster a veto-proof two-thirds supermajority to terminate any emergency that the president wants to continue, along with the special powers it activates. Congress has never pulled off this extremely difficult feat, not even this March and October when the majority of lawmakers voted to counter President Trump’s unprecedented attempt to usurp Congress’s power of the purse by declaring an emergency at the southern border.

This is not the kind of outcome that Congress envisioned when it overhauled the national emergency declaration process during the post-Watergate era. When lawmakers enacted the NEA in 1976, they established the ability of Congress to end an emergency at any time by passing a concurrent resolution, which unlike a joint resolution does not go to the president’s desk. However, in 1983 the Supreme Court invalidated this mechanism as an unconstitutional legislative veto, leading to the situation we have now. The ARTICLE ONE Act makes some crucial updates to this faulty framework.

Most notably, the bill would revise the current emergency renewal framework so that a national emergency would automatically expire after an initial 30-day time window — enough time to manage the immediate aftermath of a serious crisis — unless a simple majority of Congress agrees with the president to renew it. The ARTICLE ONE Act would also require the president to seek congressional approval by joint resolution to extend the emergency after the first year and every subsequent year thereafter.

Under the amended measure, existing national emergencies would be subject to annual congressional approval at the end of each emergency’s current one-year term as well. Thus, the bill would require more robust collaboration between the executive and legislative branches in renewing national emergencies. It would also further enable stronger oversight by imposing enhanced transparency and reporting requirements on the president.

In today’s disturbing status quo, the president enjoys excessive discretion to pick and choose which emergency power to exercise and for how long, potentially in perpetuity. By one leading estimate, a president’s declaration of an emergency can unlock more than a hundred other special authorities for that president’s use—including sweeping powers with profound, troubling implications for Americans’ civil liberties. Furthermore, national “emergencies” can and do persist for years and decades.

Vast executive powers with weak oversight and weak checks against abuse are anathema to our democracy, where the separation of powers between co-equal branches of government is supposed to guard against tyranny. It’s now too easy for a president to institute permanent states of “emergency” no matter how inappropriate and too hard for Congress to terminate them. That current system is ripe for extraordinary abuse.

Lawmakers should support reforming the NEA regardless of their stance on any particular emergency declaration. The current president’s recent actions merely highlight the longstanding need to restore more accountability to all presidents’ access to an enormous array of emergency powers. That need is why the ARTICLE ONE Act’s new time limits, approval and oversight mechanisms, and affirmative agreement mechanism would represent major progress.

To be clear, reforming the NEA isn’t enough. Congress must follow up by reviewing and overhauling the authorities delegated for the president’s “emergency” use — including but not limited to the International Emergency Economic Powers Act and Section 212(f) of the Immigration and Nationality Act. Those laws are worth a mention in this context because they are the basis for exemptions in the bill as amended by committee.

The executive branch has repeatedly used the IEEPA to violate fundamental due process guarantees and the Trump administration has repeatedly relied on INA Section 212(f) as authority for its Muslim ban, asylum ban, and other anti-immigrant proposals. Thus Congress should view updating the NEA as merely the first step toward broader reforms of the emergency powers themselves, particularly these statutes.

In the meantime, lawmakers have a valuable opportunity to reform the National Emergencies Act and restore Congress’s ability to supervise presidential declarations of national emergency. For the preservation of our democracy, we urge that they take up this opportunity.

In Nicaragua, She Dodged Bullets. Now She’s Stuck at the Border.

(Ciudad Juarez, Mexico) The sting of tear gas was still in Julia’s eyes when she ran into a public park in the center of the Nicaraguan city of Estelí on June 20, 2018. Earlier that day, she’d wrapped her face in a blue-and-white bandanna – the colors of the Nicaraguan flag – and joined a student-led march against the government of President Daniel Ortega, whose proposed cuts to social benefits were sparking tense street demonstrations across the country. [Note: ‘Julia’ is a pseudonym; the ACLU is protecting her identity for her safety.]

As the students marched through the streets, paramilitary police arrived, firing tear gas into the crowd. Supporters of the government threw rocks at the demonstrators, who mostly scattered while a few scuffled with police.

In the chaos that followed, Julia and a small group of friends hid in a nearby house, splashing water in their eyes and waiting for a safe moment to leave. Night fell, and they decided to make a break for it. But men allied with the government were waiting, and as the group ran into the park, shots rang out.

When the shooting stopped, two protesters were dead. One, 24-year old graduate student Franco Valdivia Machado, was a friend of Julia’s. In videos gathered by human rights investigators, people can be seen dragging his lifeless, blood-soaked body through the street.

Julia had just turned 18.

Today, she is one of nearly 60,000 people who’ve been placed into the “Migrant Protection Protocols,” (MPP) which forces asylum-seekers to wait for their court hearings in Mexico rather than inside the United States. Since mid-June, she’s been stuck in Ciudad Juarez, a city not long ago considered to be the murder capital of the world.

Julia sits in a home found for her by legal advocates in Ciudad Juarez, Mexico, October 10, 2019.Guillermo Arias for the ACLU

Julia is 19 now, but she looks younger. She spends her days waiting for a December court hearing in a small house that a legal advocate found for her in the arid outskirts of the city. Slight and soft-spoken, she tells her story in a steady voice.

“I don’t know anybody,” she said. “I don’t have any family here.”

The shootings in the Estelí park marked the beginning of a brutal crackdown on student demonstrators by the Nicaraguan government. In the following months, more than 300 people were killed, and human rights groups say hundreds more were arrested and brutally tortured. Some were friends of Julia’s, including two who she says are still in jail for speaking out about the crackdown.

After Machado was killed in the park, other people who’d marched in the protests started to disappear or turn up dead. Then, men who said they represented the government came looking for her at her house. She wasn’t at home, but her sisters were.

“They threatened my sisters,” Julia said. “They said they would kill them first and then they would kill me.”

Julia realized the government knew she’d participated in the demonstrations and that Nicaragua wasn’t safe for her or her family anymore. So along with her sister, brother-in-law, and niece, she decided to flee north, hoping to find shelter inside the U.S. They packed up what they could carry and left, traveling to Guatemala and then Mexico.

The route north for migrants and asylum-seekers through Mexico is notoriously perilous, and Julia says that along the way they tried to keep a low profile, riding buses and speaking to each another sparingly so their accents wouldn’t give them away.

“When we would go out to eat and people heard our accent, that we weren’t from Mexico, they would make ugly faces at us,” she recalled.

Julia shows a photograph on her phone of her marching in student demonstrations in Nicaragua, Ciudad Juarez, Mexico, October 10, 2019.Guillermo Arias for the ACLU

On May 23rd of this year, the four reached El Paso, Texas, where they turned themselves in to Customs and Border Protection officers after crossing into the U.S. Julia described what had happened in Nicaragua and asked for asylum. Without explanation, the officers separated her from the rest of her family and sent her to a hielera – a holding center for detained immigrants.

The cell was crowded with other migrants, and she says one officer threw bottles of water at them when they were thirsty.

“We were scared to go to the doctor, because officers told us that if we went to a doctor it would affect us when we saw a judge,” she recalled.

After twenty days, CBP officers gave her a slip of paper with a court date in El Paso, but told her that she’d been placed into the MPP and she’d have to wait back in Mexico until then. Her sister, brother-in-law, and niece were still in detention inside the U.S., so alone and back across the border, Julia had nowhere to go.

“They told us there wasn’t any shelter and that they were giving priority to mothers with children,” she said.

Ciudad Juarez is less dangerous now than it was a decade ago, when it was notorious both for being statistically the most violent city in the world and the site of a mysterious wave of disappearances and murders of women. But the murder rate has begun to climb again, and in 2017 90 women were killed in Juarez, nearly twice as many as the previous year. So far this year, the city has seen around 100 murders per month, and cartel-related violence has spiked sharply in recent weeks.  

The Paso del Norte bridge to El Paso, Texas in Ciudad Juarez, Mexico, October 10, 2019.Guillermo Arias for the ACLU

In contrast, just across the bridge in El Paso, Texas, there were only 23 murders total in 2018.

A Mexican aid worker noticed Julia, and worried for her, helped find her a spot in a privately run shelter in the city. But it was desperately overcrowded, and Julia says that the overworked administrators who ran the shelter were verbally abusive, with one telling a group of people once that he wished he had a gun so he could shoot them all. At first she tried to find work in Juarez, but one day she was followed by men in the street. After that she started leaving the shelter less often.

Alone, with no lawyer to represent her in her case, Julia was more isolated than she’d ever been in her life. But then, nearly three months after arriving at the shelter, she finally caught a break.

Tania Guerrero, a Juarez-based lawyer who works for the Washington D.C.-based Catholic Legal Immigration Network, was running intake interviews in the shelter when she met Julia.

“She looked like she hadn’t slept in a long time, just eternally exhausted,” Guerrero recalled. “She didn’t look her age.”

Julia and another young girl from El Salvador had become close, and Guerrero was worried that the two weren’t safe there.

“Being 19, all by herself, and she’s a beautiful young lady. I felt it placed her in a fragile state,” she said.

Guerrero was plugged in to a network of Catholic organizations raising funds for asylum-seekers and migrants. One had a house in Juarez they’d offered as a safe space, and Tania was able to get Julia and her friend out of the shelter and into the house along with two other women.

Julia stands in a window in her room in Ciudad Juarez, Mexico, October 10, 2019.Guillermo Arias for the ACLU

A few weeks later, Guerrero brought Benjamin Osorio, a Virginia-based attorney who was in Juarez looking for pro bono asylum cases, to meet Julia. He quickly decided to take hers.

“Just speaking with her, she’s very compelling and sharp, and she has great evidence,” he said. “She’s in the 5th Circuit, which is rough on asylum, but you just feel terrible for this young girl out on her own really with no resources. But she’s very bright, and we think she can win her case.”

Defenders of the MPP say the program is necessary to weed out fraudulent asylum claims, and when it was unveiled former Homeland Security Secretary Kirstjen Neilsen made reference to “aliens trying to game the system.” But Julia’s story illustrates how the precise category of person the asylum system was created to protect are currently being placed into the program, requiring them to wait for long periods in dangerous border towns for court dates.

The ACLU is currently suing to end the MPP, with the 9th Circuit having heard arguments in the case, Innovation Law Lab v. McAleenan, on October 1st. While the court weighs its decision, the program has been allowed to stay in place.

Without the good fortune of meeting Guerrero and later Osorio, Julia would still be facing the unfamiliar shelters and streets of Juarez – along with U.S. immigration law – completely on her own.

From what Osorio’s seen, her case isn’t a rarity.

“I think that the American public would be surprised at the massive number of people who have truly valid asylum claims that are being forced to wait in dangerous conditions.”

Julia’s next court date is in El Paso in early December. Until then, she passes her time with the other women in the house, who have come to describe themselves as a kind of family. Her laugh is piercing, and huddled over their phones together, she and her friend look like teenagers anywhere. She shows off pictures of the march in Estelí, a row of her friends holding up a banner with her just before the day went bad.

The house is mostly safe, but there have been periodic reminders of the violence lurking just beyond its gates. A few weeks earlier two men had been shot three blocks away. Julia leaves sparingly, almost never without Guerrero.

Another woman waiting in the house for her hearing hangs laundry outside, Ciudad Juarez, Mexico, October 10, 2019.Guillermo Arias for the ACLU

“I do worry about her safety,” Osorio said. “She’s a young, vulnerable teenage girl. And there’s concerns there, especially when you talk to the number of people that have been targeted, have been kidnapped, robbed or assaulted. I mean, she would obviously be a prime target for that.”

If Julia does win her case, the Department of Homeland Security will have 30 days to appeal. Recently, Customs and Border Protection officials said that asylum-seekers can be sent to Mexico to wait while their appeals move through a backlogged system. Osorio says its unclear whether Julia would be treated as ‘detained’ or ‘non-detained’ in an appeal, or what might happen to her during the process.

“Non-detained appeals are taking two years right now,” he said. “So is she going to sit in Juarez for two years? I don’t know.”

Julia says that above all, she wants to get back into school. Her sister was released on a $15,000 bond in Chicago, but she wants to join her mother in Los Angeles. She says she’s hoping to train to be a dentist. “I’ve always found it interesting,” she said. “I don’t know why.”

As her court date gets closer, her anxiety is growing.

“I can’t go back to Nicaragua, I have nowhere to go,” she said. “I don’t have family there because I lived with my sisters, and if I go back I’ll be jailed because I participated in the marches.”

The Trump Administration is Unlawfully Detaining a U.S. Resident Without Charge

Adham Hassoun completed his criminal sentence and was set to be released from prison almost three years ago. But the government — now claiming unprecedented and unconstitutional powers under the USA Patriot Act — continues to hold Adham in detention, indefinitely and without charge.

We’re in court to secure his freedom.

Adham has called the United States home for 30 years. Born in Lebanon to Palestinian refugees, Adham and his family — like many other refugees — suffered violence at the hands of various armed factions. In search of peace, Adham moved to the United States in 1989, joining many other members of his family. He earned a degree in computer science, married, and had three children.

In 2007, the government charged Adham with crimes related to his support for Muslims suffering and defending themselves in military conflicts abroad in the 1990s. These “material support” charges were filed under a federal statute that has been used aggressively by the U.S. government — often improperly — to criminalize First Amendment protected speech and other non-violent acts the government deems connected to terrorism.

Upon conviction, the government asked the court to put Adham in prison for life, but the judge presiding over the trial said “no.” She pointed out that Adham posed no threat to anyone in the United States or elsewhere, and that the crimes for which Adham was convicted involved “no violent acts, had no identifiable victims, and were never directed against the United States or Americans.” Instead, she determined, they were motivated by Adham’s interest in “the plight of Muslims throughout the world,” and his “firsthand” knowledge of “what happened to a country when internal politics turned violent.”

Adham completed his 15-year sentence, reduced by two years for good behavior, in October 2017. By law, he should be a free man. But the government refuses to release him. Instead, it has cited one flawed executive power after the other in order to deny our client his constitutional rights.

The government first claimed it could keep Adham locked up under an immigration statute that allows the government to detain immigrants for no more than six months pending their removal from the United States. But, as the child of Palestinian refugees, Adham is not a citizen of any country, and had no country to which he could immediately go to. 

Then, after the six months ran out and a federal judge again ordered Adham’s release, the government declared Adham a national security threat and invoked a federal immigration regulation — one that has been used just once before — to keep Adham locked up without any charges.

Now, after the ACLU, the Clinical Legal Education program of the University at Buffalo School of Law, and the New York Civil Liberties Union filed a habeas challenge on Adham’s behalf, the government doubled down on untested detention authorities, asserting a never-before-used provision under the USA Patriot Act to keep him in detention.

Let’s be clear: The government’s repeated and now unprecedented efforts to keep our client in prison indefinitely and without charge are unconstitutional.

The Constitution forbids the government from imposing life sentences by fiat, much less by invoking a vague, easily manipulated, and fear-inducing term like “national security.” If the government believes Adham has committed a crime, it should charge him and allow him to mount a defense in court. It cannot, however, assert unlawful and flawed powers to make an end run around his constitutional rights.

The Patriot Act has been used repeatedly by the government in an attempt to justify rights-violating surveillance and other abuses, but never before has the government invoked it to hold someone in direct violation of the Fifth Amendment’s guarantee of a due process.

As the ACLU and University of Buffalo Law Clinic made clear in court last week, the fundamental flaws in these detention authorities mean that the court should order Adham’s immediate release. At the very least, the court should order the government to prove its case and hold a hearing in which Adham can put the government’s allegations to the test. The Constitution does not permit any less.

Congress Just Temporarily Extended the Government’s Spying Powers

In a bill passed today and now headed to the president’s desk for signature, Congress temporarily extended the NSA’s spying powers that time and again have been used to violate our rights. Disturbingly, this three-month extension was snuck into a broader funding bill, forcing members of Congress to choose between extending this program and causing a government shutdown. The extension is an unnecessary lifeline to spying programs that are plagued with compliance violations, have no proven intelligence value, and violate our rights.

Under Section 215 of the Patriot Act, one of the spying powers extended, the government believes it has the right to collect our personal information merely if it is deemed relevant to a terrorism or counterintelligence investigation — a standard much lower than the Fourth Amendment’s probable cause warrant requirement. This can include virtually any business record, including mental health records, DNA information, tax returns, books, videos, call records, financial data, and much more. One of the government’s legal justifications for this power is its false claim that the Fourth Amendment doesn’t protect our information if it is stored or held by a third party such as Google, Facebook, Amazon, a hospital, or an accountant.

This legal argument is not only outdated — it’s absurd. 

In today’s digital world, vast amounts of our most intimate data are held by third parties. Telephone carriers can track virtually everywhere we have been. Internet service providers log every website we visit. And tech companies have a record of every text or email we send. The records held by these companies can reveal how often we go to church, seek mental health treatment, or even purchase junk food.  

Given this reality — and the NSA’s history of abusing Section 215 — this authority should not be reauthorized unless Congress can enact substantial and meaningful reforms to protect our rights.

Federal lawmakers can start by limiting the types of information that the government can get with a Section 215 order. The government should not be able to obtain sensitive information such as location information, biometrics, or health data under a “relevance” standard, even when that information is held by a third party. Similarly, if the government is generally required to obtain a probable cause warrant for this kind of information in criminal cases, the law should clearly state that they cannot get this information with a Section 215 order.  

Second, Congress must beef up protections to ensure that Section 215 does not violate our other constitutional rights. Any surveillance that discriminates on the basis of race, religion, or other protected characteristics should be prohibited, particularly given the ample evidence that national security has often been used as an excuse to target vulnerable communities. Moreover, the existing statute should be strengthened to forbid any surveillance based on First Amendment activities. 

Third, Congress can ensure that the government complies with its constitutional obligation to notify individuals when Section 215 information leads to a prosecution or other proceeding. Unlike other surveillance authorities, the government claims that it has no such obligation. Congress should remedy this, giving individuals the opportunity to raise constitutional challenges and judges the ability to review these massive surveillance powers.

Fourth, Congress must end Section 215’s call record authority. In 2015, Congress reformed Section 215 to put a halt to the NSA’s practice of collecting virtually all Americans’ call records. In its place, Congress created a law intended to ensure that this program was used carefully and narrowly, rather than for large-scale collection. It is now apparent that these reforms are not working, and that the NSA’s call record program is not salvageable.

Despite reforms in 2015, the NSA continued to collect an immense amount of Americans’ information under the program — amassing more than 1 billion records from 2016 to 2018 alone. Further, there is no evidence that this mass data collection resulted in the disruption of even one terrorist plot. The NSA has already suspended this program following persistent compliance problems, and Congress should end this authority so that it can never be revived. 

Congress had over four years to debate these authorities, and long ago should have either meaningfully reformed them or ended them entirely. Members of Congress should not continue to kick the can down the road. If they cannot pass comprehensive reform in the next three months, they must finally allow these authorities to sunset completely.

In a hearing earlier this month, Senator Mike Lee questioned whether it was a “complete dereliction of duty” for Congress to give these types of expansive surveillance powers to the government.  It was, and it’s past time to remedy this mistake. 

The U.S. Government Tracked, Detained, and Interrogated Journalists. We’re Suing on Their Behalf.

As part of a coordinated effort that undermined the freedom of the press, the U.S. government tracked, detained, and interrogated journalists who were reporting on conditions at the U.S.-Mexico border. Now, we’re suing on their behalf to defend their First Amendment rights.

Together with the New York Civil Liberties Union and the ACLU of San Diego & Imperial Counties, we’re representing five photojournalists who traveled to Mexico in late 2018 and early 2019 to document the experiences of people traveling by caravan towards the U.S.-Mexico border. Their photographs were subsequently published by news outlets such as The New York Times and The Intercept.

On multiple separate occasions, border officers detained each journalist as they sought to return to the U.S. They interrogated the journalists about their coverage of the caravans of people traveling, and asked them about their observations of conditions at the U.S.-Mexico border, including in shelters. A couple of the journalists were also presented with a book of headshots and asked to identify people they recognized. Some of the journalists were forced to disclose the photographs they had taken in Mexico to border officers, and one officer captured some of these photos with a cell phone.

The interrogations and searches were part of a concerted government effort. A secret government database leaked to the public in March 2019 revealed that the five journalists were specifically targeted as part of a broad group of people including lawyers, a pastor, and immigration advocates working at the southern border. Reporting on the database also revealed that the U.S. government coordinated with Mexican authorities to monitor these individuals.

The database contained the photos and personal information of the journalists in our case, including their name, date of birth, the fact that an alert had been placed on them, and a notation of whether they had been subjected to interrogation. Three of the photos were crossed out with a bold X on them. A fourth, which wasn’t crossed out, stated: Pending Encounter.

One of the journalists in the case was also denied entry to Mexico during the time period of the interrogations, preventing her from continuing her work there.

The border officers’ targeting, detention, and questioning of the journalists was unconstitutional. The government violated the First Amendment by compelling each journalist to disclose confidential information about their observations as journalists and about their sources, including the identities of people with whom they may have interacted while working in Mexico.

The government’s disturbing actions also risk deterring other journalists from performing their vital function, which enables us to hold our government accountable. The public needs to know what is happening at the southern border, including about how the government treats asylum seekers. A free and independent press plays a crucial role in documenting these conditions and informing the public. Journalists must be free to continue this critically important work.

That the government’s actions occurred at the border makes them no less unlawful. Border officers at ports of entry may ask questions relating to immigration or customs, but they may not use border screening as a pretext to interrogate journalists about their work. Even in the case of federal law enforcement investigations, journalists enjoy basic protections that play an important part in preserving the freedom of the press. Allowing the government to force journalists to reveal information about their work and sources simply because they travel in and out of the U.S. would imperil that freedom. 

When the government tries to circumvent constitutional protections, we must hold it accountable. No journalist should have to fear government interference for having the persistence, courage, and commitment to expose the truth.

Students Told They Would Be Better Off ‘If They Had Jesus in Their Life’

The ACLU and the ACLU of Tennessee filed a lawsuit against the Smith County School System for violating the separation of church and state on Monday. According to the lawsuit, four students who are atheists have had to contend with school officials promoting Christianity through official prayers, Bible distributions, religious posters, and even a giant cross painted in one of the school’s athletic facilities.

We asked our three high school clients in this case — Harleigh, Leyna and Pyper — to tell us about their experience, their friendship, and why they decided to sue their school district.

What has your school environment been like for you?

Harleigh: Overall, it’s really uncomfortable. You feel like you don’t fit in at all.

Leyna: To be honest, it’s kind of awkward having to deal with everybody making it seem like you have to believe in one thing, just like them.

Pyper: Mostly it’s just uncomfortable and feeling like you don’t fit in.

Atheists and nonreligious people are one of the most rapidly growing groups in the U.S., yet they still face significant mistrust and discrimination. Are you worried about this lawsuit revealing to your peers and those in your community that you’re atheists?

Harleigh: I feel like if we do, we’ll be seen as mistrusting or misleading, or a bad influence. I haven’t really talked about it except with my close friends, to be honest, and most of them are atheists.

Leyna: I don’t really hide it because it’s not really something that I should hide. Everybody can express their religion. Why shouldn’t I be able to express the fact that I’m an atheist?

Pyper: I’m not really that worried about it because most people already know that I’m not religious.

Pyper (left) and Harleigh at Pyper’s Eighth Grade Graduation

How has your friendship helped you get through a school environment that has been hostile to, or at least not very welcoming to, non-Christians?

Harleigh: You kind of have someone to talk about it with, you know?

Leyna: It’s definitely more reassuring to know that we’re able to talk about it. I can’t just look at somebody else and be like, “Oh, this is kind of wrong, what [school officials] are doing, because most people will look back at me like, “What are you talking about? This is normal.”

Pyper: Yeah, you always have some to talk to about it. And then at school when something happens [with promoting religion], you have someone to tell.

Pyper, you are a member of the girls’ soccer team. Your coach has directed team prayers before every game. What was your initial reaction when it first happened? 

Pyper: I was kind of confused on why we’re doing it because not everyone is religious on my team, and I feel like [the coach] knows that, so I was confused.

Did you ever think about telling the coach you didn’t like it or that it was inappropriate?

Pyper: I thought about that but I didn’t want to be benched or kicked off the team.

Harleigh, as a member of the marching band, you have to attend every football game, and all the home games start out with a prayer over the public address system. What type of message do you think that sends to you, the other students, and the community members who are gathered for the game?

Harleigh: I feel like it’s almost like it’s coercing everybody to be the same. I feel uncomfortable because I feel like I’m the only one sitting there not participating.

Leyna and Pyper, when you were in middle school, two school officials who were responsible for promoting religion also made some anti-LGBTQ remarks. One told fifth and sixth graders last year that same-sex relationships would not be tolerated. Another would scold students who discussed same-sex crushes. What was your reaction?

Pyper:  I was just kind of shocked that the straight people can express their feelings about a boy or a girl but LGBTQ people can’t do the same.

What are you hoping will happen as a result of this lawsuit?

Harleigh: I want to feel like I can go to school and not feel like I’m not a part of what is happening. Or go to a football game and not feel uncomfortable for the first 20 minutes. I want to do normal teenage things at school without feeling like I don’t fit in.

Pyper: Just wanting to fit in. When you’re not bowing your head, people look at you weird.

Leyna: I respect other people’s religion, and I would like it if everyone else would respect my beliefs.

Leyna in downtown Nashville following a concert with her family.

What advice would you give to other teens that are facing similar circumstances at their public schools? 

Harleigh: Find a good group of friends that you do fit in with that have the same beliefs as you and don’t feels so coerced by everybody else.

Pyper: Probably just not be scared to speak up to say what you believe in.

When you three aren’t doing school activities or standing up for your rights, what do you do for fun?

Harleigh: I like to draw a lot and paint. I’m into surrealism.

Pyper: I like to take pictures.

You’re a photographer for the school yearbook, right?

Pyper: Yes, ma’am.

Are you hoping that this lawsuit will make it easier to attend school events as part of your yearbook photography duties?

Pyper: Yes, ma’am.

Leyna, what do you enjoy doing when you’re not busy with school and fighting for your rights?

Leyna: I usually do my makeup or I cook something.

What would you say to someone in this situation who can’t find a group of like-minded friends?

Pyper: Don’t try to be someone you’re not just to have a group of friends.

An Arizona Sheriff Deputy’s Abuse of a Quadruple Amputee Teen Highlights A Policing Culture That Must Change

Inhumane. Cruel. Abusive. What other words could possibly describe a Pima County, Arizona Sheriff Deputy placing a 15-year-old quadruple amputee who posed no threat into a headlock and then pinning him to the ground at a group home? What if the Deputy then screamed at another teenager videotaping the abuse and yelled at him repeatedly “shut the hell up” and, “Am I your bitch?” before slamming the teenager’s head into the wall while handcuffed?

This is not another example of a police officer using far more force than necessary, though we have seen that story play out time and again. This is a police officer using abusive force when no force was required at all. This is about the notion, widely held by law enforcement, that cops should be overlords who demand respect and service from the community while being willing to physically and verbally threaten and punish anyone — including a child with no arms and legs to defend themselves — who dare challenge their authority.

While Deputy Manuel Van Santen’s behavior is shocking, it is an all too familiar occurrence. In the U.S., we have grown accustomed to videos of law enforcement abusing their authority and using force that is unreasonable and unnecessary. Police body-slamming a high school girl in a classroom in South Carolina because she wouldn’t leave the class. A cop handcuffing and arresting a 6-year-old in Florida for “acting out” in school. Arizona police officers pointing a gun at an unarmed pregnant mother and her children, while telling her that she is “going to fucking get shot” because her 4-year-old daughter allegedly took a doll from a dollar store. A SWAT team in Georgia tossing a flash-bang grenade into a crib with a baby sleeping inside.

This incident is at once stunning and symptomatic of a crisis in policing in America. In many counties, cities, and towns police departments are a dangerous powder keg of racism, militarization, and resentment of the communities they’re charged with serving. Combine this with a culture of impunity aided by insufficient legal standards, and decades of policies designed to harm communities of color and situations like the one in Pima County become commonplace.

From this noxious potion, we have seen a slew of harrowing episodes in which police shoot and even kill people, including people unarmed and attempting to comply. A man crying for his life and crawling on a hotel hallway floor as ordered, murdered by an Arizona cop brandishing a gun with the words “You’re fucked” written on the dust cover. Another murdered while reaching into his car for his driver’s license upon demand by a police officer in South Carolina. A father reaching for his driver’s license and registration when demanded while sitting in the passenger seat of a car in which a four-year-old girl was in the back seat in Minnesota.

Deputy Van Santen made the boorish statements so nonchalantly that it seems clear he did not consider it outside the norm for appropriate behavior. Both his attitude and language were well within what was deemed appropriate in the culture. This is the culture behind the slogan “comply, then complain.” It means shut the hell up, no matter what you see us doing, or you will get some too. That culture dictates that police don’t serve the community — they occupy it.  And if any of us dare to question or record them, while they physically abuse a child with no arms or legs, we will suffer the consequences.

This officer needs to be fired. But it is the culture of policing in America and in the Pima County Sheriff’s Department that must change. If you want to consider the officer a bad apple, just remember they don’t fall far from the tree.  And if we are not moved to action when a police officer chooses to “restrain” a person with no arms and legs in the way this officer did, while abusing another person trying to shine on a light on such violently abusive behavior, America is in even more trouble than we thought

Whistleblowers Are Public Servants. We Must Protect Them.

President Trump and President Volodymyr Zelensky of Ukraine spoke on the phone. The president insists the call was “perfect.” Others are concerned that, during the call, the president intimated he would withhold financial aid appropriated to Ukraine unless the Ukrainian president agreed to investigate former-Vice President Joe Biden, a political rival of the president.

How do we even know about any of this? A government employee who knew of the phone call became concerned about the possibility that the president was improperly using his office for his own political gain, and blew the whistle. The public learned the content of the whistleblower’s allegations because another government employee leaked the story to the press. Once again, the American public benefited from the bravery of its public servants, risking their livelihoods, careers, and families to expose government waste, fraud, and abuse.

President Trump’s reaction has been both predictable and terrifying. Using his preferred method of official communication — Twitter — the president called the whistleblower a spy and suggested they should be treated as they would have been “in the old days,” presumably referring to execution. He called repeatedly for the whistleblower’s identity to be revealed, a well-worn tactic designed to intimidate the whistleblower and any other official that could provide support to their account. And Trump isn’t alone. Senator Rand Paul also called upon the media to reveal the whistleblower’s identity.

It’s worth wondering why these kinds of tactics are still permissible.

Sen. Paul has pointed out that nothing stops him from revealing the whistleblower’s identity. He’s right, and that’s a huge problem. It’s one of many big problems facing any public servant, but especially a national security and intelligence community member, who wants to report the waste, fraud, or abuse they witness in our government. Intelligence community whistleblowers currently have no access to independent and meaningful due process, while other federal employees do. There is no law protecting their identities from disclosure and they have no protections from retaliatory investigations.

Congress must fix these problems. That’s why the Project on Government Oversight, the ACLU and 15 other organizations, including the Government Accountability Project, and Whistleblowers of America, sent a letter to Congress this week calling for them to seize this moment to change the law for the better and to do everything in their power to protect the whistleblower’s identity.

And that’s just a start.

Increasing protections for whistleblowers that disclose through the available government processes is helpful, but it ignores whistleblowers that bring what they know directly to the public. Daniel Ellsberg, who disclosed the Pentagon Papers, and Edward Snowden, also risked their lives and careers to inform the public of massive abuses of government power. They deserve protection too.

They were both charged with violating the Espionage Act, which criminalizes unauthorized disclosures of classified information. That law makes no distinction between public servants that bring evidence of crimes occurring at the highest levels of government to journalists, and officials that steal government secrets and sell them to foreign spies. That makes no sense.

Luckily, the fix is simple. Congress should allow those accused of violating the Espionage Act to raise the defense that their disclosure served the public interest. That small change would mean a far more accountable government, because government employees that witness misdeeds would be empowered to say what they saw without fear of retaliation.  

Americans need and deserve information about what their government is doing, now more than ever. Congress must act to protect those within the government who blow the whistle.

Gold Chains: The Hidden History of Slavery in California

This is a cross-post from the ACLU of Northern California.

There is a story we tell ourselves about being American. Much of it is a lie. Two dates that students throughout the country are required to memorize to inform an American identity are 1492, when Columbus supposedly “discovered” America, and 1776, when the United States claimed sovereignty from England and through the Declaration of Independence declared: “We hold these truths to be self-evident, that all men are created equal.” If we’re honest, we’ll admit that the “all men” in that catchphrase didn’t include African Americans, Native Americans, and women, and Columbus didn’t discover anything. He got lost on a voyage to India and when he docked in the Caribbean and saw people, he called them Indians and proceeded to disavow them of their humanity. Not embedded in the American psyche as a date to remember is another equally seminal year, 1619, which commonly marks the inception of America’s original sin—the 400th year since enslaved Africans arrived in Virginia and were sold to colonists beginning centuries of bondage and servitude.

In the period leading to this anniversary, several notable news outlets observed its significance on a national level. But closer to home, the ACLU of Northern California wanted to explore California’s place in the nation’s history of forced servitude, unpaid labor, and human degradation. The significance of this local history is undeniable. It has shaped California’s complex racial character and planted the seeds of white supremacy that were sown in this country; seeds that bore ripe and poisoned fruit, the manifestation of which still exists today. In an effort to comprehensively explore this obscured racial history and the many legal battles it spawned, the ACLU of Northern California has launched a project entitled: Gold Chains: The Hidden History of Slavery in California.

The mission of Gold Chains is to uncover California’s hidden slavery history by lifting up the voices of courageous African American and Native American individuals who challenged their brutal treatment and demanded their civil rights, inspiring us with their ingenuity, resilience, and tenacity. We aim to expose the role of the courts, laws, and the tacit acceptance of white supremacy in sanctioning race-based violence and discrimination that continues into the present day. Through an unflinching examination of our collective past, we invite California to become truly aware and authentically enlightened.

Acceptance of this invitation requires humility and a strong disposition for hard truths. The bleak and brutal story of slavery in California pre-dates statehood with the incursion of Europeans in the 1700’s who enslaved the Native population, seized land, raped women, infested tribes with disease, and force-fed Catholicism. California was designated a “free state” in the Compromise of 1850. The proverbial image of black people as chattel laboring in cotton fields stalked by an overseer gave way to a Pacific Coast version with similar conditions. Like “King Cotton,” the commodity that drove the slave trade on the eastern seaboard, the Gold Rush era in California during the 1800s provoked the persistent dehumanization of black people, and simultaneously forced Native people off their remaining land, destroying their ecosystems for generations to come. These consequential historical markers are hidden from state lore and school curricula but offer concrete examples of California’s complicity in racial tyranny. For instance, the state legislature passed the Fugitive Slave Law in 1852 that legalized the deportation of free or previously enslaved black people back to the south as slaves for seeking economic and personal freedom.

Through narratives, public records, archival materials, and images, Gold Chains: The Hidden History of Slavery in California debunks California’s unblemished brand as exclusively “liberal,” “innovative,” and “progressive,” correcting it with facts of a history mired in racism, white supremacy, and violence. It also reinforces the integrated advocacy that the ACLU of Northern California practices daily. Our efforts to take on critical issues and sometimes unpopular positions in order to advance civil rights and civil liberties exemplifies our commitment to equal justice for all. Confronting the misdeeds of our collective past enables us to secure a more just future for generations to come.

The Size of Your Wallet Should Never Determine Your Freedom

Lea Allison is a 30-year-old Alamance County resident and mother to a 6-year-old daughter. She has been living with relatives because she cannot afford to live on her own, but was about to start a new job that she hoped would provide her and her daughter with financial stability.

Lea’s plans came to an abrupt halt when she was arrested and locked in an Alamance County, North Carolina jail on a $3,500 bond. Although she has not been found guilty of a crime, she will remain behind bars because she cannot afford to pay for her freedom. Instead of starting her new job, Lea is sitting in the Alamance County jail — cut off from her family and forced to sleep on the floor.

Right now, thousands of people in North Carolina — who are presumed innocent because they have not been convicted of a crime — are locked in jail while they wait for their day in court because they do not have the money necessary to pay the bail that would allow them to go home to their jobs and families. This unjust cash bail system disproportionately impacts people of color, violates people’s rights, separates families, and fuels the mass incarceration crisis.

Together with Civil Rights Corps, we filed a lawsuit this week on behalf of Lea Allison and two other people who are incarcerated in the Alamance County jail and cannot afford to pay the bail amount set by a court official who showed no consideration to their ability to pay and provided no attorney during the bail hearing.

Our lawsuit asks the court to take immediate action to end Alamance County’s unconstitutional bail practices, ensure that no one is held in the county jail solely because they are unable to pay their bail, and release those currently locked up because they are poor. The lawsuit also claims that the county has violated the right to counsel because poor people accused of crimes are not provided attorneys to represent them when their freedom is at stake.

In this country, we are all supposed to be treated as innocent until proven guilty. But under the cash bail system, a person’s freedom too often depends on how much money they have in their bank account. Each year, more than 10 million people in the U.S are locked into local jails, and as of 2015, there were roughly 700,000 people locked up on any given day. Most of them have not been convicted of a crime. Bail systems like Alamance County’s result in wealth-based detention that means that people who are poorer, often people of color, remain locked up while awaiting trial.  

For too long, North Carolinians have had two criminal legal systems: one for the rich and one for the rest of us. These wealth-based pretrial detention schemes that target the poor violate the Constitution and inflict tremendous harm on peoples’ lives. Spending just three days behind bars puts a person at risk of losing their job, home, and custody of their children. Alamance County locks people up before their trial at an alarming rate, requiring secured bonds for nearly 90 percent of all people charged with a crime, one of the highest rates in the state.

We sued to put an immediate stop to the destructive practice in Alamance County of criminalizing poverty and we are putting officials in North Carolina and across the country on notice: current bail practices are unconstitutional, violate people’s rights, and must end.

Trump Administration Forgoes Petition to Supreme Court in Jane Doe Case

For more than two years, the ACLU has been fighting a Trump administration policy that prevents unaccompanied immigrant minors in federal care from accessing abortion. We had previously won in the lower court, securing a preliminary block on the policy. And last week, the Trump administration chose not to challenge that ruling and ask the Supreme Court to review the case—a real victory in our fight for justice for the Janes.

We first filed the case in October 2017 on behalf of Jane Doe, a fearless young immigrant woman who fought the Trump administration’s attempt to deny her right to end her pregnancy. Jane’s win, and her bravery, laid the foundation for our success in the months that followed in obtaining court orders that blocked the government’s attempts to prevent other young immigrant women from making their own decisions about whether to continue or end a pregnancy.

In March 2018, a federal district court issued an order temporarily blocking the government from enforcing its abortion ban against all pregnant immigrant minors in its custody, finding the ban to be unconstitutional under Roe v. Wade and allowing the case to proceed as a class action.

This past summer, the D.C. Circuit Court of Appeals agreed, finding that the administration’s policy “functions as an across-the-board ban on access to abortion” for pregnant immigrant minors. In its ruling, the Court unanimously “reject[ed] the government’s position that its denial of abortion access can be squared with Supreme Court precedent.”

The Trump administration had until November 8th to ask the Supreme Court to overturn our lower court win and allow it to resume its policy of forcing these teens to remain pregnant against their will. But last Friday came and went, and the administration filed nothing. 

We’re relieved that the government did not appeal. The government’s failure to ask the Supreme Court to review the injunction means that the temporary protections we’ve secured for the Janes will remain in place.

But this does not mean we can rest easy. The case isn’t over — we’re still fighting in the district court for final, permanent relief that would close the door on the government’s efforts to implement its unconstitutional policy for good. And the Jane Doe case is just one vector of a full-scale effort by the Trump Administration, along with other federal and state politicians, to dismantle our hard-won reproductive rights.

Over the past year, Arkansas, Georgia, Kentucky, Missouri, Ohio, Utah and Alabama have all passed bans on abortion. The ACLU has blocked all of these abortion bans from taking effect, and abortion is still legal in all 50 states. But politicians across the country continue to push these bans in the hopes that the Supreme Court will use one of them to overturn Roe v. Wade.

At the federal level, the Trump administration has sought to strip millions of low-income people who rely on Title X, the nation’s family planning program, of their ability to access comprehensive, high-quality reproductive and family planning care. It has promulgated rules that would have (absent a court order)  permitted employers and universities to deny their employees and students insurance coverage for contraception due to moral objections.  And it has issued other rules — which we just blocked from taking effect — that would have allowed health care providers to refuse to provide critical health care services based on personal religious or moral beliefs.

As the old saying goes, the measure of a nation is reflected in how it treats its most vulnerable members. Nothing is beyond the pale for this administration in its attacks on reproductive health care in general, and immigrants in particular, whether it be ripping children away from their parents at the border, forcing them to stay in squalid, dangerous conditions in Mexico, or denying them access to critical medical care.

The government’s ban on abortion for immigrant minors is just another attempt to strip some of the most marginalized people in our society of their constitutional rights — in this case, young immigrant women of color. Just as your ability to get an abortion should not depend on where you live, neither should it depend on your immigration status, age, national origin, race, gender identity, or economic circumstances. We won’t let up in our fight on multiple fronts to ensure abortion remains safe and legal for everyone in America, including back in the district court, where we will resume our efforts on behalf of the Janes to ensure that this administration’s unconstitutional policy is struck down for good.

We’re Suing South Carolina For Driving People Into Poverty

Emily Bellamy is a single mother living in South Carolina earning low wages as a daycare worker. Emily strives for a better life for her young children and, in the past, has been able to earn more money cleaning vacation condominiums or working as a home health aide for the elderly. But Emily no longer has access to those opportunities because her driver’s license is suspended for unpaid traffic tickets that she cannot afford to pay.

We’ve created an interactive webpage that shows how living with a suspended driver’s license severely limits Emily’s ability to earn money and care for her family.  It’s astonishing.

Without a driver’s license, Emily is not only barred from better-paying work, she often must pay for rides to work and for her daughter to get to school. This makes it even harder for her to pay outstanding tickets and begin the process of getting her license back.

Emily is trapped in South Carolina’s wealth-based driver’s license suspension system. As of May 2019, the South Carolina Department of Motor Vehicles had suspended the driver’s licenses of more than 190,000 people for failure to pay traffic tickets — without first determining if they were able to pay. The ACLU and our partners filed a federal lawsuit on behalf of Emily, Janice Carter, and Linquista White — Black women who were denied their constitutional right to protection from punishment for being unable to pay fines and fees. 

South Carolina has one of the highest poverty rates in the nation, with one in six residents living in poverty. Driving is crucial to life in the state, and nine out of ten people rely on a driving to get to work. In 2011, a report prepared for the South Carolina Department of Transportation acknowledged that public transportation networks do not meet half of the state’s needs. Like the plaintiffs in our lawsuit, people in South Carolina must rely on their driver’s licenses to get to work, take their kids to school, access health care, and care for their families.

Janice, an Air Force veteran, explains in a video the hardship of having a driver’s license suspended for unpaid traffic tickets. Janice would like to accept a higher-paying job as a case manager, but the position requires a license and travel to clients spread across three counties spanning more than forty miles. Without a driver’s license, it’s out of the question. Our interactive page also shows how Janice struggles to get to work and to run errands over the course of a day without a driver’s license.

The South Carolina DMV doesn’t provide a hearing or proper notice of how to avoid suspension when a person can’t pay — and it doesn’t determine whether or not people have the money to pay. This results in a system of wealth-based suspensions that only end when a person pays all traffic fines, as well as DMV fees charged for reinstating a suspended license. This means impoverished people are unable to drive unless they divert money from rent, utilities, health care, and other necessities to get their licenses back.  

To make matters worse, neither the DMV nor the South Carolina Office of Motor Vehicle Hearings — the state agency with the power to review suspensions — provides an opportunity for South Carolinians to explain that their driver’s licenses should not be suspended because of inability to pay.

The result is a racially-skewed legal system that defies common sense. People who can pay a traffic ticket move on with their lives, but people who can’t pay are trapped in a cycle of lost jobs and opportunities, poverty, and debt. Paradoxically, this makes it even more difficult for people to pay traffic tickets. Black people in South Carolina suffer from poverty at a rate more than double that of white people. As a result, Black South Carolinians, including Emily and Janice, make up 27 percent of the state’s population, but 48 percent of those with driver’s license suspensions for failure to pay traffic tickets. 

The U.S. Supreme Court has made clear that the Fourteenth Amendment promise of due process and equal protection of the law protects us from state punishment based solely on inability to pay. Organizations across the ideological spectrum, including the American Legislative Exchange Council, Koch Industries, the American Bar Association, and more than one hundred groups involved in the Free-to-Drive Campaign, agree that driver’s license suspensions should be reserved to keep unsafe drivers off the road — not to collect debt. In recent years, California, Idaho, Maine, Mississippi, Montana, Virginia, Texas, and the District of Columbia have enacted legislation to tackle the suspension of driver’s licenses for unpaid debt. 

We all want a legal system that is fair and provides equal treatment of rich and poor. It is past time for South Carolina to end wealth-based driver’s license suspensions once and for all.

Three Common Privacy Misconceptions That Companies Love

A significant number of Americans hold significant misconceptions about their privacy, according to opinion research — misconceptions that privacy-invading companies love. That’s according to research on American understandings of privacy carried out over the past couple decades by the Annenberg School for Communication at the University of Pennsylvania, lead by Prof. Joseph Turow, whom I recently heard give a talk summarizing these studies.

Misconception #1: “We care about your privacy!”

One misconception is that when a web site has a “privacy policy,” that actually means the site has a policy to protect your privacy. Annenberg presented respondents with the false statement that “When a web site has a privacy policy, it means the site will not share my information with other websites or companies without my permission.” In 2018, nearly 60 percent of Americans either said they believed this was true, or that they did not know. In past years the percentage of those surveyed giving incorrect answers was as high as 78 percent.

Unfortunately, nothing could be further from the truth. Most “privacy” polices start by declaring, “We care about your privacy!” and then go on to say, in extremely long and complicated legal language, that you have no privacy. Lawyers write these policies to minimize the presence of any actual concrete promises that might limit what a company does. Because the United States doesn’t yet have a baseline privacy law, the only thing protecting our privacy in most commercial contexts is a prohibition on “acts or practices that are unfair or deceptive.” That prohibition was enacted in 1914 — just slightly before the advent of today’s online advertising surveillance systems. What that means is that (outside of a few narrow areas that are regulated such as credit reporting) a company can do whatever it wants with your personal information. The only thing it generally cannot do under federal law is say it’s going to do one thing and then do another, which would count as “unfair or deceptive,” and leave a company vulnerable to enforcement by the Federal Trade Commission.

Turow says that “marketers know” about this misconception and benefit from the confusion and the misplaced consumer trust it creates. Turow suggests that “privacy policy” is “a deceptive term” and that “the FTC should require a change in the label.” “How We Use Your Data” would be more accurate.

Misconception #2: What is unfair is also illegal.

A second misconception that many Americans hold is that the law protects them more than it does. For example, in 2015, 62 percent of Americans didn’t know that it is completely legal for an online store to “charge different prices to different people at the same time of day”; in 2012, 76 percent did not know that “online marketers are allowed to share information about diseases you or your family members have”; and in 2018, 46 percent did not know that an “internet provider has a legal right to sell information to marketers about the websites you visit.” (We think they actually don’t have such a right under the Communications Act, which states that “every telecommunications carrier has a duty to protect the confidentiality” of personal information — but an attempt to craft detailed rules enforcing that law was killed by Congress and President Trump in 2017, and there’s no sign that such a right will be enforced by the federal government anytime soon.)

What’s going on here, Turow believes, is that people have fairly well-defined feelings about what kinds of behavior are fair and what are not — and they tend to think that things that are unfair are also illegal. They think, as he puts it, that the government has our backs much more than it actually does.

Annenberg’s polling confirms other polling in consistently finding that people are deeply uncomfortable with the state of their privacy online. Two-thirds (66 percent) of adults, for example, told surveyors that they do not want advertisements “tailored to their interests,” and 91 percent disagreed with the statement that “if companies give me a discount, it is a fair exchange for them to collect information about me without my knowing.” Asked whether “It’s okay if a store where I shop uses information it has about me to create a picture of me that improves the services they provide for me,” 55 percent disagreed.

These findings, Turow concludes, “refute marketers’ insistence that Americans find increased personalized surveillance and targeting for commercial purposes acceptable.”

So why do people give up so much information? The problem is that they feel helpless. The surveys found that 58 percent of Americans agreed with the statement, “I want to have control over what marketers can learn about me online” but at the same time 63 percent also agreed, “I’ve come to accept that I have little control over what marketers can learn about me online.” Although marketers like to portray Americans as cheerfully accepting a tradeoff between their privacy and the benefits they gain, that’s not at all what’s happening. As Turow told me, “The bottom line for us is resignation. It’s not as if people want to give up their privacy, but in order to get through life they feel they have to, and they don’t feel like they have the ability to change things.”

Misconception #3: We’ve lost the privacy battle.

This, I would argue, is the third misconception: that the battle is lost and there’s nothing people can do about protecting their privacy. It’s true that there are good reasons why people feel that way — there’s only so much that an individual can do to protect their privacy, especially if they’re short on technical expertise or willingness to tolerate inconveniences in order to fight surveillance. It’s true that our privacy depends to a large extent not on individual decisions but on collective decisions we make as a nation about the policies we want to set. It’s also true that the companies that profit from surveillance are wealthy and politically powerful.

Nevertheless, the clouds are gathering for a major reckoning. The European Union has enacted a  comprehensive privacy law called the General Data Protection Regulation (GDPR) that is forcing even many U.S.-centered businesses to improve their privacy practices. California, where one in eight Americans live, has also enacted a broad privacy law called the California Consumer Privacy Act (CCPA). And as these laws weaken the will of companies to oppose privacy protections, scandals such as the Cambridge Analytica fiasco have strengthened the desire of politicians across the political spectrum to support such rules. The result: For the first time in many years, members of both parties are reportedly working to draft and enact comprehensive privacy legislation. 

There are major battles ahead, but, as I have argued, in the end people need — and always demand — privacy. Privacy-invading companies love it that people feel helpless, but now is the time for people to trade resignation for anger and activism, and voice that demand to ensure that any new privacy laws are strong and meaningful. The status quo is not stable, and the battle is just getting underway.

Pages