ACLU News

The Computer Got it Wrong: Why We’re Taking the Detroit Police to Court Over a Faulty Face Recognition ‘Match’

Last year, Detroit police arrested a Black man, Robert Williams, based on a false face recognition match. They held him in a dirty, overcrowded cell for 30 hours until they realized that “the computer got it wrong.” Unfortunately for Williams, it was too late. He had already been arrested in front of his family and missed work because he was in jail for a theft he did not commit. And even after he was freed, Williams still had to hire a lawyer and go to court to defend himself.

Today, the ACLU joins the University of Michigan Law School’s Civil Rights Litigation Initiative and the ACLU of Michigan in filing a federal lawsuit charging that the police violated Williams’ rights protected by the Fourth Amendment and Michigan’s civil rights law. The lawsuit seeks damages and demands that the Detroit Police Department institute policy changes to halt the abuse of face recognition technology. 

It is well documented that face recognition technology is deeply flawed. The technology has a disturbing record of racial bias against people of color and other marginalized groups. Many jurisdictions ban its use for that reason, among others. Face recognition is especially unreliable when attempting to identify Black people, when the photo used is grainy, when the lighting is bad, and when the suspect is not looking directly at the camera. All of these circumstances were present in the photograph that the Detroit Police Department used in its shoddy investigation, and are common in the type of photographs routinely used by police officers around the country when deploying face recognition technology. 

Despite the technology’s well-known flaws, Detroit police relied on it almost exclusively in their investigation. They did not perform even a rudimentary investigation into Williams’ whereabouts during the time of the Shinola shoplifting incident. If they had, they would have realized that Williams was not the culprit he was driving home from work outside of Detroit at the time the incident took place. Instead, the police asked an individual who was not even at the store to “identify” the culprit in a six-person photo lineup. The individual had no basis for being asked to identify the suspect: She was not a witness to anything except the same grainy image taken from surveillance video that the police already had. Worse still, the identification process was supposed to be a blind procedure in which the officer who conducts it doesn’t know who the suspect is to avoid tipping off the witness, but the officer who facilitated it already knew that Williams was the suspect. 

After the “witness” falsely identified Williams, the police submitted a faulty and misleading request for an arrest warrant. They did not include the probe image used to generate the faulty face recognition “match,” nor did they disclose that the image was blurry, dark, and showed an obstructed, barely-visible face turned away from the camera impermissible conditions for a face recognition search by even the police department’s own standards. They also failed to mention that face recognition technology is known to be faulty under these circumstances. Nor did they disclose that the image of Williams that “matched” with the culprit’s was actually his expired driver’s license, rather than the most current image of him on file with the state. Moreover, the police did not mention that the individual who picked Williams out of the lineup had never actually seen the shoplifter in person. And perhaps most egregiously, the police did not explain that both the unknown suspect and Williams are Black, and that face recognition technology is well known to produce significantly higher rates of false matches when used to try to identify images of Black people, as compared to white men. 

This violation of the Williams family’s rights is a stark example of the dangers of this technology, especially when used by law enforcement against people of color. Government use of face recognition technology not only poses a danger of turning our streets into a surveillance state, but it also threatens integral aspects of our criminal legal system.

The Fourth Amendment guarantees the right to not be searched or arrested without probable cause. When police use face recognition technology to investigate a crime, they are using a flawed, racially biased tool that does not create the “individualized” suspicion required to establish probable cause. Instead, it turns everyone into a suspect by placing us all in the virtual lineup every time the police investigate a crime. So when face recognition technology produces a “lead,” police officers and magistrates would be unwise to trust it, especially if the person in the probe image is Black. Had the police officers who arrested Williams taken the time to compare the probe image photo to Williams’ appearance, they would have realized that the two individuals were not the same. 

Humans, including police officers and judges, have a hard time understanding just how frequently computers make mistakes. That means that, where face recognition technology is involved, judges may be more likely to believe that the officers established probable cause — a dangerous outcome that could lead to untold numbers of false arrests. Anyone who questions whether people will unthinkingly rely on what the computer tells them to do should think about the last time they turned the wrong way because Google Maps told them to do so, even when they knew it was a wrong turn. 

The flaws of face recognition technology also seep into the rest of our criminal legal system. Defendants often do not ever find out that they were accused by a computer. Without this knowledge, defendants are denied their constitutional rights to present a complete defense at trial — they cannot point to the flaws of the accusatory computer that led to their arrest or understand how those flaws might infect the subsequent investigation. 

Further, even if defendants do learn that a computer accused them, they face additional hurdles throughout the system. While defendants are supposed to be given access to information about the flaws of human witnesses pursuant to the Supreme Court’s decision in Brady v. Maryland, they are routinely denied that same information about the flaws of technological accusers that serve similar roles in the investigation and prosecution of a crime. Similarly, while defendants are allowed to cross-examine human witnesses at trial under the U.S. Constitution’s Confrontation Clause, defendants are often prevented from similarly testing the reliability of computers that produce testimony against them at trial. Police use of face recognition technology is insidious in any context, and its flaws only become more compounded throughout the life of a defendant’s criminal case. 

Williams’ case makes it painfully clear: Face recognition technology turns everybody into a suspect and threatens our civil rights. We cannot allow flawed technology to participate in an already-flawed criminal legal system — especially when an individual’s life and liberty are at stake. 

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Police Must Not Create Digital Dossiers of Data from our Phones and Computers

Think about all the information stored on your cell phone or computers — photos, texts, location data, and even more information generated by a multitude of apps. These tools are convenient and integral to our everyday lives. But what does that mean for our privacy rights in the digital age? Today, the Wisconsin Supreme Court hears oral arguments addressing this question, including arguments that the ACLU has presented in a series of amicus briefs.

The Wisconsin case concerns cell phone data seized by the police. During a hit-and-run investigation in 2016, a suspect, George Burch, consented to a police search of his text messages to confirm his alibi at the time of the accident. The police should have just downloaded the text messages and returned the information after the investigation ended. Instead, they downloaded the entire contents of Burch’s phone and held onto all the data. Months later, an entirely different law enforcement agency found out that police still had the information and searched it for evidence of Burch’s involvement in a murder — without getting a separate warrant or asking his permission. That search — which went well beyond the agreed upon text messages and hit-and-run investigation — led to evidence linking Burch to the murder.

If police want to lawfully access seized data for a separate investigation, at the very least they must obtain a second search warrant. Without a warrant, there is no way to ensure that the police are acting with good cause, rather than just rummaging through private data for improper reasons, or for no reason at all. Once an investigation is over, the police are required to return or delete information seized.

The ACLU has been fighting unconstitutional search and seizure practices by law enforcement for years. In 2015, we filed an amicus brief in United States v. Ganias, a case in the Second Circuit Court of Appeals concerning the FBI’s retention of electronic records seized in a fraud investigation, which it held onto and later searched to investigate a different fraud suspect over two years later. While a panel of judges agreed with us that the retention of this data was unconstitutional, the full Second Circuit did not rule on this particular legal question, and the problem persists.

In 2014, we filed an amicus brief in United States v. Hasbajrami, a case involving warrantless foreign intelligence surveillance. In that case, the Second Circuit issued an opinion holding that subsequent querying of stored information may, depending on the circumstances, be regulated by the Fourth Amendment and require a warrant.

In the past year, we’ve filed two other amicus briefs in state Supreme Courts on the same issue — in these cases, as in Burch, police didn’t bother to get a second warrant.

In State of Michigan v. Hughes, police seized the defendant’s cell phones in conjunction with a drug trafficking offense to which he pleaded guilty. The defendant was also suspected of armed robbery. A jury hung failed to convict him not once but twice. Unsatisfied, at the third trial, the prosecution introduced evidence obtained by searching the cell phones for evidence of the robbery, a crime for which they did not have a warrant.

In State of Illinois v. McCavitt, law enforcement obtained a search warrant to investigate a police officer for several crimes against a single victim. Eight months later, the officer was acquitted. The next day, law enforcement — still in possession of the defendant’s hard drive under the first warrant — conducted a new search of the hard drive data, hoping to find evidence of different crimes against additional victims.

As these three state Supreme Court cases illustrate, courts are starting to scrutinize broad, free-wheeling searches of the libraries’ worth of sensitive, private information stored on our electronic devices. None of them have ruled yet. But our briefs explain that the Fourth Amendment can and must effectively limit searches and seizures in the digital age, preventing the founders’ reviled “general search” — rummaging through private data for any or no cause and without judicial oversight. Nor should our private information stay in government hands forever. At some point, the constitutional requirement of reasonableness means that our documents, photos, and messages get returned or deleted.

The government should not take advantage of its investigatory powers to build permanent digital dossiers just in case. To retain this information is a moral hazard, putting privacy and other civil rights and civil liberties at risk of an all-seeing government eye.

 

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The Promise of Systemic Equality Starts at Home

For more than a century, the ACLU has been on the frontlines advancing civil liberties and civil rights. This has meant not only defending rights for all but taking bold positions in order to help America live up to her own ideals — a reality that is better than where we are, and one that is never finished. For over 100 years, this aspiration of a more perfect union has been our story.   

Today, we are focused on a new chapter of that story: one where we’ve turned our attention inward to our own culture and systems to evolve as an organization that is reflecting internally the ambitions we have set externally.  

Since 2016, the national headquarters of the ACLU has grown by nearly 80 percent in our staff population alone. In summer 2020, we took a census of our employee population and found that 11.6 percent of staff identify as Black/African American, which puts us above the labor market and census data average — but we can do better. 

With our staff growth comes a renewed call to action. As the ACLU continues to expand, we have a responsibility to scale our diversity, equity, and inclusion initiatives to increase pathways to employment, strengthen our culture of belonging, and enhance our professional development commitments to underrepresented staff in particular. 

That’s why we’re eager to share a bit of this next chapter in the ACLU’s work. Last month, we launched our Systemic Equality Initiative, calling on the Biden administration and the country to reckon with systems of structural racism that Black and Indigenous people in this country have experienced over generations. 

To join our Systemic Equality agenda to take action on racial justice, click here.

Joining with the Robin Hood Foundation and other prominent companies and organizations on the NinetyToZero pledge, which ensures needle-moving actions to advance racial equity by growing Black talent and investing in Black businesses, we are committing ourselves to a transformative vision for equity within our organization. We start with establishing a baseline. By 2025, the National ACLU is committed to the goal of achieving and sustaining 16 percent Black staff representation at every level of our organization. 

Like many organizations, the ACLU has been engaged in ongoing work to dismantle systems of power and oppression to create lasting, meaningful change. We recognize that systemic racism pervades every aspect of life, from interactions with law enforcement, to access to housing and capital, to health care and education — as well as the workplace.  

Nonprofits, NGOs, and mission-driven organizations everywhere are not removed or exempt from the power dynamics in workplaces across the country. But we believe we have a responsibility to build — with humility and vision — an organization that is more perfect than the sum of its parts. Creating meaningful change starts with changing ourselves. While our journey has not been perfect, we know that naming this work courageously and unapologetically is the first step toward bringing others along with us. 

We’re committing ourselves to this work through dedicated recruitment, pipeline and partnership building, and restorative inclusion. We are also holding ourselves accountable through robust data and measurement. Here’s how we’re approaching this work: 

First, we are committing to sustained recruitment and hiring efforts from more diverse talent poolsThis includes launching recruitment partnerships with historically Black colleges and universities (HBCUs), talent recruitment programs, and recruitment outreach campaigns focused on sourcing  Black, Indigenous, people of color (BIPOC) applicants. We are also changing our interviewing process to meaningfully increase the number of underrepresented candidates that receive interviews for open roles through inclusive job descriptions, structured hiring trainings, and quarterly meetings with our department heads to create intentional goals. 

Second, we are building new pipelines to engage and develop BIPOC candidates earlier in their careers. This year we expanded our paid national internship program by more than 50 percent to reach more interns across the country. We are building specific internship opportunities for BIPOC communities and underrepresented college students, and building an intentional pipeline with our National Advocacy Institute to engage the next generation of leaders as early as possible. In addition, next year we will be launching a new President’s Fellowship Program across ACLU departments specifically for recent college graduates from underrepresented backgrounds. 

Third, we are creating initiatives to promote and retain Black leadership, and foster an equitable culture to support them. To help achieve this, we are doubling down on our efforts to provide paths for growth through progression charts and quarterly reporting of promotion data at the ACLU, and are posting senior leadership roles internally as well as externally. In addition, we are creating internal professional development programs and external resources for underrepresented staff to grow and advance in their roles. This includes intentional mentorship and sponsorship programs, which will foster relationships so that underrepresented staff have champions to elevate their work, create community, and influence and advise on organization-wide topics and practices. To support this goal, we have created proactive trainings on the ways anti-Blackness shows up in the workplace and ways we can dismantle it through bystander intervention, restorative circles, and other accountability measures. 

Fourth, we are engaging Black-owned and Blackled contractors. This is an opportunity for the ACLU to leverage its significant organizational “purchasing power” to invest in businesses owned and operated by people from BIPOC and other underrepresented communities. The ACLU’s Vendor EDIB program is a key tool the ACLU can leverage to build Black wealth. 

Fifth, we are partnering with Blackowned financial institutions and businessesThis initiative will ensure that we’re utilizing the financial resources of the ACLU and distributing them more equitably and sustainably. We’re investigating how we can use our capital and assets and invest them with Black banks — building up that wealth in Black communities beyond the ACLU. 

In all of these efforts, we are committed to robust measurement and accountability to assess our efficacy. Our people analytics team within our HR department will track ACLU hiring, promotion, and attrition data quarterly and report out annually to the entire organization. This data will hold us accountable and ensure that we walk the walk, not just talk the talk, when it comes to these efforts and initiatives. The future of the ACLU, and every success we have, hinges on our ability to develop, foster, and sustain a workplace of racial equity, economic justice, and transformative inclusion. 

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I Refused to Become an FBI Informant, and the Government Put Me on the No Fly List

My first interaction with the FBI was based on a lie.

In August 2018, I got a call asking me to go to City Hall to clear up a city permit violation, and gladly complied to resolve any issues. It turned out to be a ruse.

When I arrived, I was led into a conference room, where two FBI agents were waiting. I was immediately caught off guard, not having any idea why the FBI would want to talk to me. I’m a husband and father of two young kids, and I have always focused on building a good life with my family, both as a business owner and as an engineer in Michigan’s automotive industry. 

Although the FBI agents told me I could leave whenever I wanted, when the door closed and they started questioning me, it certainly didn’t feel that way. They told me they wanted my help in looking for people in my community who might want to harm this country. They thought I’d be useful to the FBI because of my language skills (in addition to English, I speak Arabic), my Lebanese heritage, and my engineering expertise. I felt unsettled because becoming an informant in my community would violate my personal ethics. Still, I maintained my calm, told the agents my primary obligation was to my family, and that I didn’t want to work for the FBI. But the pressure continued.

The FBI agents asked me about my political and religious beliefs, associations, and the years I spent living in Lebanon as a student. I answered all their questions truthfully. I was born in Chicago, and completed high school and three years of college in Lebanon before returning home to Michigan to finish my education. 

I repeatedly insisted I did not want to work for the FBI, but they kept increasing the pressure. I was shocked when the FBI agents accused me of affiliation with a terrorist group. I vehemently denied their false accusations, but it didn’t seem to matter. My anxiety level rose even more when the agents threatened my family and me. They said that if I didn’t agree to become an informant, my family would be investigated, my wife and I could be arrested, my children could be taken away, and my wife’s immigration status could be at risk. 

Eventually, the FBI agents told me I faced a choice: I could stay in America and become an informant — and their suspicions about me would “go away” — or I could leave the country. If I stayed and did not become an informant, my family and I would be subjected to more surveillance and investigation, specifically threatening to reach out to my family, friends, and employer.

It’s hard to fully describe my inner turmoil after that meeting. As a Muslim in America, I know from firsthand experience that our government too often views us with discriminatory suspicion. But it’s different when FBI agents sit across a table from you, with all the power of the government behind them, accusing you of things you have never done and would never do. I was scared, and I was especially scared for my family’s safety.

The FBI kept asking to meet with me, and under their pressure, I did not think I could refuse. Meanwhile, the anxiety and stress meant I couldn’t sleep or eat properly. For two months, the meetings, threats, and harassment continued until I felt I had no choice but to send my family away to protect them. I booked my wife and children on a flight to Lebanon, where we have family. I joined them a few weeks later, after my employer agreed that I could temporarily work part-time from abroad. I hoped this break would make the FBI leave me alone. About a month later, I attempted to return home.

That’s when the consequences of my refusal to work for the FBI as an informant hit. When I got to the airport, the airline agent said I couldn’t board my flight and needed to contact the U.S. government. I knew the government had a No Fly List, which bans people from flying, and feared I was on it. I immediately sought answers and a month later, I got official confirmation: I was on the No Fly List. 

In the two years since then, I’ve tried to get off the No Fly List using the redress procedure the government provides. But the government won’t even give me its reason for putting me on the No Fly List, any evidence it thinks might justify an indefinite flying ban, or a hearing to clear my name. This is wrong, and it violates my rights as an American to basic due process. I’ve learned that this purgatory is not unusual. I was shocked to learn U.S. citizens and residents on the No Fly List can spend years seeking answers and information, without even learning why the government put them on the list in the first place.

For my family and me, this entire ordeal has been devastating. I exercised my right not to work as an FBI informant in my community and the government punished me. Because I’m on the No Fly List, I cannot visit family and friends abroad, or travel for work or to fulfill my religious pilgrimage obligation as a Muslim. My wife and I worry that her naturalization application is at risk. I worry that government officials who claim to protect all Americans equally can violate our constitutional rights with impunity. 

Now with the help of the ACLU, I’m bringing a lawsuit to challenge the government’s actions and placement of me on the No Fly List. I want a fair process to clear my name. And I want to make sure no one suffers what my family and I have suffered.

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ICE’s Watchdog Agency Confirms Dangerous Conditions in Arizona Immigration Detention Facility

Last week, the Department of Homeland Security’s internal watchdog agency released a damning report that shed new light on dangerous conditions at La Palma Correctional Center, an Immigration and Customs Enforcement detention center in Eloy, Arizona. The Office of Inspector General’s investigation confirmed the dangerous use of force, abuse, and lack of medical care at La Palma as COVID-19 swept through the facility and revealed troubling details about ICE’s mismanagement of detention during the pandemic.

In unusually strong language, the OIG concluded that conditions at La Palma “threatened the health, safety, and rights of detainees,” and “created an environment of mistreatment and abuse.” The OIG’s report confirms that the facility failed to provide basic protective equipment to detained people, did not require guards to wear masks, and “did not enforce ICE’s COVID-19 precautions, including facial coverings and social distancing,” noting that “this failure may have contributed to the widespread COVID-19 outbreak at the facility.” Notably, La Palma had one of the largest COVID-19 outbreaks of any immigration detention facility in the country, with over 700 people eventually infected with the virus.

Most shocking is the OIG’s confirmation of abuse at La Palma. In April 2020, detained people at La Palma held peaceful protests to request protective equipment, such as masks and hand sanitizer, to protect themselves from the spread of COVID-19. However, in response, “staff deployed chemical agents from the ceiling,” deployed “pepper spray from handheld devices,” and launched pepper balls against detainees. Facility officials later punished detainees with lengthy stays in solitary confinement. As a letter that we sent to ICE on behalf of detained protestors reported, one CoreCivic guard told the protestors: “I am locking you down because it is my job. I don’t care who lives and who dies.”

 

The OIG’s report also confirms that La Palma failed to meet baseline medical standards, leading to the “risk [of] endangering the health and well-being of detainees entrusted to their care.” Indeed, the OIG found that La Palma’s medical unit was “understaffed, operating below requirements.” These shortages created delays in critical care, refills for essential medications, and medical visits. The report also found failures regarding the grievance system and critical communication for detained people, including failure to provide people with deportation officer visits or call schedules. Most grievances reviewed received delayed responses or no response at all. Despite this, ICE has maintained that they have taken responsibility for the well-being of those detained in their custody.

Unfortunately, the abuses underlying the OIG’s report at La Palma are not uncommon. Instances of the use of force, including pepper spray, pepper balls, and spray grenades, have increased against immigrants in detention during the COVID-19 pandemic. The number of people who died in ICE custody during 2020 was the highest it has been in 15 years.

La Palma became an ICE detention facility in 2019, as part of the Trump administration’s rapid expansion of the immigration detention system. After California’s criminal justice reforms eliminated its use of out-of-state prisons, CoreCivic set out in search of new people to fill its beds at La Palma. As the Government Accountability Office concluded in a recent report, many of the new facilities opened during the Trump administration lacked justification for use, and were awarded contracts that provided unnecessary “guaranteed minimum bed” provisions — payments for beds, even if not in use.

As the OIG’s report demonstrates, immigration detention facilities are plagued by dangerous conditions and abuse of detained people. The Biden administration can act quickly to terminate existing contracts for detention facilities, starting with facilities that have serious records of abuse, were opened without clear justification, or are in remote locations. There is no time to waste: It is time to put an end to ICE’s detention machine.

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A Chinese American Scientist and His Family Are Battling the FBI’s Profiling in Court

Professor Xiaoxing Xi is a Chinese American scientist whom the U.S. government wrongly accused of unlawfully sharing sensitive technology with scientists in China. After the Justice Department dismissed its baseless indictment, Professor Xi brought suit against the government, seeking accountability for the FBI’s wrongful arrest of him, its surveillance methods, and its discriminatory targeting of Chinese Americans. Yesterday, a federal district court compounded the harms Professor Xi has suffered by dismissing nearly all of his legal claims.

For years, the government has wrongly targeted Chinese American scientists for investigation and prosecution, most recently as part of the Justice Department’s “China Initiative.” In the process, the government has cast broad, unjustified suspicion on scientists of Chinese descent. Several of the resulting prosecutions have been based on faulty grounds — with devastating consequences for the lives of those affected.

Professor Xi’s nightmare began one spring morning in 2015, when he awoke to violent banging on the front door of his home outside Philadelphia. When he opened the door, a group of armed FBI agents handcuffed him and rounded up his wife and daughters at gunpoint as they walked out of their bedrooms with their hands up, still in pajamas. Professor Xi had no idea what the agents wanted, but he did what they said to keep them from shooting.

Later, Professor Xi learned that FBI agents had been listening to his phone calls and reading his emails for months — possibly years. The government accused Professor Xi of sharing sensitive technology known as a “pocket heater” with scientists in China, and revealed that it had relied on spying tools designed for pursuing foreign agents. As “proof” of its accusations, the FBI pointed to Professor Xi’s emails. But the emails consisted of routine academic correspondence between the professor and his colleagues about Professor Xi’s own research that had nothing to do with the FBI’s claims and had been public for years. After Professor Xi and his defense attorneys presented this information to prosecutors, the government dismissed the indictment.

Before Professor Xi’s arrest, the government secretly used some of its most powerful spying tools to listen in on his phone calls and read through his emails. Some of this surveillance was authorized by the secret Foreign Intelligence Surveillance Court, presumably based on the same false allegations that appeared in the government’s disastrous indictment. But, as the complaint explains, other elements of this surveillance were completely warrantless and conducted under two controversial spying authorities: Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333. These surveillance tools allow the government to access Americans’ international emails and phone calls on a vast scale.

While Section 702 and Executive Order 12333 do not permit the government to target U.S. citizens or residents for surveillance, this spying nonetheless sweeps up countless people across the country who communicate with friends, relatives, and colleagues abroad. The whistleblower Edward Snowden and others have emphasized the astonishing breadth of these warrantless surveillance powers — including the government’s use of them to spy on universities and scientific research institutions in China. In Professor Xi’s case, his collaborative, academic work required regular communication with counterparts in China — and it was precisely these communications that the government later cited in court filings when it sought to wrongly arrest him.

The court’s ruling yesterday dismissed all but one of the claims brought by Professor Xi and his family. It dismissed claims that the FBI made knowingly or recklessly false statements in support of the prosecution, and that the FBI’s investigation of Professor Xi violated the Equal Protection Clause because it was based on his Chinese ethnicity and his former status as a Chinese national. The court has not yet ruled on the remaining claim, which challenges the government’s surveillance of Professor Xi and his family and will be addressed in a separate opinion.

The court recognized that a central element of Professor Xi’s suit was that the FBI’s investigation of him was “motivated at least in part by [his] race and ethnicity, specifically, his Chinese heritage,” but dismissed his claims in part because “to the extent race and ethnicity were factors in the investigation and prosecution of Xi, those factors are the product of executive branch counterintelligence policy.” But that’s an indictment of executive branch policy — not a legitimate basis for the courts to excuse it.

And by excusing the government’s conduct, the court turned a blind eye to the devastating consequences that the government’s wrongful arrest and prosecution have had for Professor Xi and his family. As a result of Professor Xi’s arrest, his employer, Temple University, forced him to take administrative leave and suspended him as interim chair of the Physics Department. During that time, he could no longer access his lab or communicate with the students under his supervision directly, and he was taken off as principal investigator of state-of-the-art research projects. His academic reputation was shattered by the FBI’s discriminatory investigation.

Professor Xi’s case underscores the fact that discrimination against Asian American communities isn’t new. Although some of the most visible forms of this discrimination are perpetuated by private actors, many government policies and practices — such as the “China Initiative” — are also rooted in racial and ethnic bias. As Americans Advancing Justice–Asian Law Caucus, Chinese for Affirmative Action, and the Chinese Progressive Association have succinctly explained:

[The government’s wrongful] prosecutions against Asian Americans must also be viewed and challenged alongside the broader foundation of racism and discrimination that fuels such injustices. Whether it is police violence against Black Americans, President Trump’s Muslim ban, the demonization of undocumented immigrants and refugees, or anti-LGBTQ bigotry, discriminatory targeting of communities is wrong. Only through seeking justice for all who have been marginalized can such profiling be truly eliminated.

Where the government’s investigations and prosecutions are based on impermissible racial or ethnic factors, as in Professor Xi’s case, the people harmed by the government’s actions are entitled to a remedy. Although Professor Xi and his family are disappointed by the court’s ruling, the fight is not over, and they intend to appeal. It’s crucial that we secure justice for Professor Xi and other accomplished scientists who have long been harmed by the FBI’s discriminatory profiling and surveillance.

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More Surveillance Isn’t the Answer to the SolarWinds Hack

An extensive hacking campaign, purportedly conducted by Russian hackers, has infected the computer systems of numerous U.S. government agencies, critical infrastructure companies, and other businesses that were running an insecure version of network management software distributed by the SolarWinds company. The widespread hack went undetected for months. Predictably, in response to the hack, current and former government officials are putting out feelers to gauge public receptivity to a favorite, all-purpose, government go-to proposal: more surveillance.

The head of the National Security Agency and Cyber Command, General Paul Nakasone, has asserted that the U.S. was handicapped in finding malicious traffic on government systems because intelligence agencies cannot liberally conduct warrantless surveillance on domestic networks. Deputy National Security Advisor for Cyber and Emerging Technology Anne Neuberger has claimed that respecting privacy rights enables hackers who launch attacks from inside the United States. And Glenn Gerstell, former general counsel for the NSA, has suggested that Congress should give the agency new authority to comb through domestic networks when there’s suspected foreign activity.

We don’t need even more surveillance. The existing surveillance apparatus is already expansive and especially dangerous to communities of color, Muslims, and immigrants. What we do need is for government agencies to stop making excuses and get their own security practices in order. Why should we believe that even more spying on the public internet will help uncover attacks when the government failed to find and catch the hackers on its own sensitive networks? Experts say more spying isn’t the answer. As Katie Moussouris, founder and CEO of Luta Security points out, “The NSA capabilities failed to detect [the attack] in government systems where they’re supposed to be looking.” She’s right. The problem isn’t that the government needs the power to roam through private networks, but that it needs to look more closely at its own systems. The call is coming from inside the house.

The overarching problem is weaknesses in the government’s own cybersecurity practices. For example, its multi-billion-dollar Einstein system scans network traffic for known malicious activity, but isn’t designed to detect previously unknown malware, such as the trusted-but-backdoored SolarWinds code. The Government Accountability Office pointed this out along with other problems with Einstein as far back as 2016, but the problems haven’t been fixed. Federal agencies aren’t taking basic security precautions or managing security risks posed by compromises of the companies they do business with. This and other weaknesses in the government’s network defenses have been identified for years.

The problem isn’t that NSA’s network defense activities stop once an attacker moves the operation entirely inside the United States. There is already substantial collaboration between federal agencies on domestic cybersecurity. The Department of Homeland Security already has authority to combat cybersecurity attacks on domestic networks in coordination and collaboration with the private companies that operate those networks, using information provided by the NSA under its existing surveillance programs.

Nor is the problem inadequate surveillance, considering how much surveillance the government already does. According to news reports, the NSA has attempted to intercept Microsoft’s data center traffic. The agency also secretly broke into the main communications links that connect Yahoo and Google data centers around the world. These are just two examples, hardly the entire output of the NSA’s network attack team, called the Tailored Access Operations unit.

Nor have surveillance proponents convincingly made the case that the government should be entrusted with even more spying powers. History shows that laws meant to regulate foreign intelligence collection are typically broad and vague — and therefore prone to abuse. The government’s interpretations of its power are rarely reviewed by a judge, never mind by Congress or the public. The U.S. government has repeatedly exploited legal ambiguities like these. Rather than go to courts or Congress to ask permission for novel surveillance techniques or programs, intelligence agencies have usually assumed that anything not expressly prohibited is allowed. They have concocted in secret justifications for programs they wanted to pursue — such as the now-defunct Section 215 phone record dragnet and bulk collection of American’s internet traffic — and then pursued those policies, preferring to ask for forgiveness rather than permission. That is assuming they are ever caught.

Against the fledgling cries for increased surveillance, the Biden administration reportedly does not currently plan to ask Congress for new cybersecurity authorities. Hopefully that is because the administration realizes that it needs to dramatically improve the country’s network defenses using all the powerful tools already at its disposal. Our response to the “more surveillance” trial balloons should be “no.” The American public should not be seduced by this false, dangerous promise.

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New Domestic Terrorism Laws Won’t End White Supremacy

After the Jan. 6 insurrection at the U.S. Capitol, calls for new domestic terrorism laws grew louder. Proponents of the laws argue they’ll provide law enforcement with more resources to go after white supremacists and stop the violence. Now, with the country reeling from a recent spike in mass shootings, the calls continue.

Not so fast, says Hina Shamsi, director of the ACLU’s National Security Project. New domestic terorrism laws will give the government even more power to surveil and criminalize communities of color. Existing counterrorism laws have already disproportionately affected these communities, and new laws will only exacerbate the violence against them.

Shamsi joined At Liberty to tell us why these laws won’t stop white supremacy, and what legislation we should look out for in the future.

https://soundcloud.com/aclu/why-new-domestic-terrorism-laws-wont-end-white-supremacy

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Doctors Agree: Gender-Affirming Care is Life-Saving Care

Medical experts agree: Gender-affirming care is medically necessary care that can be life-saving for transgender youth. Medical decisions belong to trans youth, their parents, and their doctors. Yet politicians are trying come between trans youth and the care they need. In 2020, 15 states introduced legislation that would ban — and in some instances criminalize — access to health care for transgender youth. The Arkansas legislature passed such a bill into law on March 29 and 16 other states introduced similar legislation this year.

https://twitter.com/ACLU/status/1375601208551948288?s=20

Dr. Terrance Weeden (Alabama)

The “Vulnerable Child Compassion and Protection Act” is a damaging bill that, if passed, will have tremendous and lasting negative effects on youth. I urge other adults — doctors, nurses, teachers, principals, counselors, therapists, and parents and even adolescents to educate others and speak out on the negative impacts that this act will have on the health of adolescents who identify as transgender or have dysphoria. If this bill were to become law, it would set a terrible precedent that could be replicated in other states. It would go against the solemn promise that I made when I became a physician: “first do no harm.”

Pediatrician Dr. Michele Hutchison (Arkansas)

https://twitter.com/ACLU/status/1375953530142478338?s=20

Dr. Nadia Dowshen (Pennsylvania)

To me, these bills are intended to insinuate that the care I provide to trans youth is harmful and abusive, and they interfere with the doctor-patient relationship. Let’s be clear; I provide lifesaving treatment that improves health, life, and well-being. I approach decisions about treatment carefully over time, with input from an interdisciplinary team, together with youth and their caregivers, and by established guidelines.

Dr. Jack Turban (New York)

Our research team from Harvard Medical School and the Fenway Institute published a study showing that access to puberty blockers during adolescence is associated with lower odds of transgender young adults considering suicide. Despite fearmongering, these are safe medications that doctors have been using for decades for cisgender children who go through puberty too early. They also are reversible — if the medication is stopped, puberty will progress.

These doctors are not alone. Major medical oppose efforts to block this critical care.

American Academy of Child and Adolescent Psychiatry

The American Academy of Child and Adolescent Psychiatry (AACAP) supports the use of current evidence-based clinical care with minors. AACAP strongly opposes any efforts — legal, legislative, and otherwise — to block access to these recognized interventions. Blocking access to timely care has been shown to increase youths’ risk for suicidal ideation and other negative mental health outcomes.

American Academy of Pediatrics

https://twitter.com/AmerAcadPeds/status/1371939237248036870?s=20

American Medical Association

The American Medical Association views these bills as a dangerous legislative intrusion into the practice of medicine and has been working closely with state medical associations to vigorously oppose them. In letters to legislators, the AMA has emphasized that it is “imperative that transgender minors be given the opportunity to explore their gender identity under the safe and supportive care of a physician.”

These three groups signed onto a statement opposing these bills along with the American Counseling Association, American Public Health Association, American School Counselor Association, American School Health Association, Child Welfare League of America, Mental Health America, National Association of School Nurses, National Association of School Psychologists, and the National Association of Social Workers:

As organizations committed to serving the best interests of all youth, we are deeply alarmed at the torrent of bills introduced in state legislatures around the country this year that would directly harm transgender people, and particularly transgender youth. These appalling proposals would compromise the safety and well-­being of the young people we all have the duty and obligation to support and protect. All of our nation’s children deserve equal protection and treatment when accessing health care, and when attending school. These anti-­transgender bills promote discrimination and do harm to students, their families, and their communities.

Trans youth know who they are. Multiple studies have shown that providing gender-affirming care is life-saving by dramatically reducing depression and suicidal ideation.

As Cash, a trans man in Arkansas, said to lawmakers before they passed a bill banning care for trans youth:

Passing these bills won’t stop any trans youth from being trans. They will prevent some trans youth from growing up at all.

https://twitter.com/ACLU/status/1376346368713715712?s=20

If you or someone you know is contemplating suicide, there is help available. Please contact:

Trevor Project: 866-488-7386
Trans Life Line: 877-565-8860

What you can do:Congress: Pass the Equality ActCongress: Pass the Equality Act

The Links Between Racialized and Gender-Based Violence

Like so many Asian Americans, I was shattered by the shooting rampage that killed six Asian women and two other people on March 17. Grief turned to rage when Cherokee County Sheriff’s Office Captain Jay Baker announced, “The suspect did take responsibility for the shootings … but he does claim that it was not racially motivated.”

That statement rested on a false and dangerous assumption — that targeting women viewed as sexual “temptations” could not be racist. But women of color so often live at the intersection of harm caused by racism, sexism, and other forms of discrimination. The Atlanta shootings and the recent rise in anti-Asian hate incidents, almost 70 percent of which were committed against Asian women, are only the latest examples. Recognizing that racialized and gender-based violence are deeply intertwined, rooted in prejudice and discrimination, is just a starting point. But without this understanding, there is little hope that we can actually address and prevent violence experienced by those who are most marginalized in our society.

Women of color have long known this, leading calls for responses to violence that serve the needs of their communities. Years before her arrest for refusing to give up her seat on a bus, Rosa Parks organized on behalf of Recy Taylor, a young Black woman who was raped by six white men in Alabama in 1944. Parks and others launched a national and global campaign seeking justice for Taylor, after local law enforcement covered up the crime. That work identified the crisis that continues to this day — people and institutions ignore the violence and abuse committed against Black women and other women of color. Even worse, they often perpetuate it.

The Missing and Murdered Indigenous Women, Girls and Two Spirit movement, led by Indigenous women, condemns the failure of law enforcement agencies to stop the appalling disappearances, abuse, and murders of Indigenous women. The U.S. legal system, with some exceptions, prohibits tribal jurisdiction over perpetrators of crime who are not citizens of tribal nations. This allows many to commit violence against Native American women with impunity. Indigenous leaders’ demands for combatting violence against Native American women focus on the history of colonization and racism that fuels its modern forms.

For years, domestic workers have pursued accountability for labor trafficking, which disproportionately entraps women of color and immigrant workers in slavery-like conditions. Yet they frequently have little recourse under federal law, which exempts domestic workers from many of its protections. Domestic workers are advocating in the U.S. and internationally for recognition of their fundamental rights, including the right to live free from violence and exploitation.

Young women and gender nonconforming people of color likewise are organizing to protest the multiple forms of violence and abuse committed against them daily. One example is the National Agenda for Black Girls, an initiative of Girls for Gender Equity endorsed by scores of other anti-violence groups, that elevates the top priorities identified by Black girls, including comprehensive measures aimed at the systematic abuse of Black girls based on racist and sexist stereotypes.

Racialized and gender-based violence has no place in our society, law, or institutions, and we need structural solutions to address this.

President Biden announced one such effort, with the reinstatement of the White House Initiative on Asian Americans and Pacific Islanders, charged with focusing on gender-based violence.

Moreover, a significant measure that acknowledges the violence that women of color face is currently before Congress. On March 18, the day after the Atlanta killings, the U.S. House of Representatives passed the Violence Against Women Reauthorization Act of 2021. The legislation authorizes new funding for culturally specific services for survivors of domestic violence and gender-based violence. It also highlights the disproportionate violence experienced by American Indian and Alaska Native women by extending tribal jurisdiction over non-Native American perpetrators of dating violence and sexual violence and requiring reporting of data on missing and murdered Native American women and law enforcement investigations.

The bill also recognizes that people who experience violence need relief outside the criminal legal system, which often has failed survivors and their families, especially women of color and LGBTQ people. They require access to secure housing, community-based violence prevention strategies, and protection from discrimination when seeking services. The bill responds to these priorities by substantially expanding housing protections, funding restorative practices, and holding governments and other organizations accountable when they discriminate against survivors, including based on race, national origin, and sexual orientation or gender identity.

The federal government has a crucial role to play in addressing the horrifying impact of gender-based violence on survivors and their families. Now, the Senate should do its part and pass the legislation, a step forward toward naming and ending the violence and abuse borne by women of color.

There’s a Lot That Can Go Wrong With ‘Vaccine Passports’

With COVID-19 vaccination rates accelerating, governments around the world have begun to consider implementing a standardized credential or “vaccine passport” that would let people prove that they’ve been vaccinated. And the idea became more real when the Washington Post reported on Sunday that the Biden administration was working with companies to develop such a structure.

Our nation’s primary push right now should be equitable vaccine distribution that gets as many people as possible vaccinated and reaching herd immunity. If we can do so, epidemiologists say, we’ll reach a point where COVID no longer has enough vulnerable hosts to circulate within our communities. This means that most people most of the time — even those who can’t get vaccinated — won’t have to worry about the disease.

When that happens and COVID comes to resemble other dangerous diseases where there are occasional flareups but little spread, such as measles, the need for a COVID passport will seem much less urgent. Nobody is demanding we provide proof of measles vaccination everywhere we go. And in the limited circumstances where such proof is required (school enrollment, some medical jobs, and some overseas travel), it’s far from clear that the existing system of paper documents is somehow deeply broken and in need of fixing. That’s especially true given that creating a passport system would be a herculean task.

As privacy advocates and civil libertarians, there are several factors to consider on vaccine passports.

There is a difference between a standardized system for presenting proof of vaccination, and a digital system for doing so. With more and more of our credentials being displayed through apps on our phones — from airline boarding passes to concert tickets to gym memberships — it strikes many people as an obvious and overdue step to create a similar digital credential for those occasions when a person has to prove that they’ve been vaccinated. But digital credentials present a number of new potential problems, and we would oppose a vaccination credential system that does not meet three crucial criteria:

1. It is not exclusively digital. A system that is exclusively digital, whether by design or as a practical matter, would be a nonstarter because it would increase inequality. Many people don’t have smartphones, including disproportionate numbers from some of our most vulnerable communities, such as people who are low-income, have disabilities, or are homeless, as well as more than 40 percent of people over age 65. As a result, any vaccine credential system would need to include a paper-based version for those who don’t have a smartphone or simply don’t want to use one. The paper option should not be a difficult or disadvantageous afterthought; a standardized credential should be primarily a paper-based system with an optional digital component, not the other way around. Our health care system is already ridden with inequities from top to bottom; we don’t want to worsen that situation by closing off even more societal benefits from those who can least afford it, or who have reason to fear such a system — including immigrant communities and communities of color who are already subject to over-policing and surveillance.

2. It is decentralized and open source. The quest for a digital identity and credentialing system has become an entire field unto itself. Numerous companies, technologists, and academics have already generated a variety of concepts, standards, and products that would let us use cryptographic files or “tokens” on our phones to prove things about ourselves across our lives. The best of these schemes — and the only ones that should be considered for any digital elements of a vaccine credential system — take a decentralized and open source approach that puts individuals in control of their credentials and identity data, which they would hold in a digital wallet. But given the difficulty of creating a digital vaccine passport, we could see a rush to impose a COVID credential system built on an architecture that is not good for transparency, privacy, or user control. That could lock us into a bad standard as other parties that need to issue credentials piggyback upon it to offer everything from age verification to health records to hunting licenses to shopping accounts, memberships, and web site logins.

3. It does not allow for tracking or the creation of new databases. Unless a vaccine credential system is completely decentralized and user-centric, it creates the potential for amassing new personal data. If some big company is getting notified any time someone reads one of your credentials, that would let them track your movements and interests — the stores, concerts, and transportation venues you visit, and much more. In the absence of airtight legal protections for privacy, any such information could then be sold for commercial purposes or shared with law enforcement. That would affect all of our freedoms, but will have a particular chilling effect on communities of color, including immigrant communities, that are already over-policed. Fear of tracking could lead people to opt out of participation, resulting in further marginalization as they are denied access to certain public spaces. Worse, without privacy protections strong enough to create public confidence, it could even deter people from getting vaccinated in the first place.

Although those are the three most significant issues we see now, the devil is often in the details, and any proposed system will have to be examined closely. Another issue is the handling of people who can’t get vaccines because, for example, they have certain medical conditions or simply don’t have access to the vaccine. Will the system distinguish between such people and those who have simply decided they won’t get vaccinated? If so, how will people obtain a certification that they are medically contraindicated? One of the reasons it’s important to reach herd immunity is precisely because there are some people who can’t get vaccines that protect them personally. Those people shouldn’t get shut out of full participation in our society.

We also worry that a vaccine passport will encourage over-use. The issues around passport design are separate from the question of where and when people can be required to furnish proof of vaccinations, but if a passport system makes it very easy to ask for and to provide proof of vaccination, it’s likely that such requests will become over-used as people get asked for credentials at every turn. While there are legitimate circumstances in which people can be asked for proof of vaccination, we don’t want to turn into a checkpoint society that outlasts the danger of COVID and that casually excludes people without credentials from facilities where vaccine mandates are not highly justified.

We were heartened to see that the Biden administration appears to be aware of many of these concerns: White House coronavirus coordinator Jeff Zients declared earlier this month that “any solutions in this area should be simple, free, open source, accessible to people both digitally and on paper, and designed from the start to protect people’s privacy.” The administration has also repeatedly stated that vaccines must be accessible to people regardless of immigration status, and therefore any unintended deterrence must also be considered. Such statements show a thoughtful awareness of the landscape here.

We don’t oppose in principle the idea of a requiring proof of vaccination in certain contexts. But given the enormous difficulty of creating a digital passport system, and the compromises and failures that are likely to happen along the way, we are wary about the side effects and long-term consequences it could have. We will be closely watching developments in this area.

Student Debt is a Racial Justice Issue. Here’s What President Biden Can Do to Help.

Student loan debt burdens more than 44 million Americans, and prevents millions from buying homes, starting businesses, saving for retirement, or even starting families. This debt is disproportionately affecting Black families, and Black women in particular.  

Higher education has long been held as a critical gateway to getting a job and achieving economic stability and mobility. But because of long-standing systemic racial discrimination, Black families have far less wealth to draw on to pay for college, creating barriers for Black communities to access higher education and build wealth. Black families are more likely to borrow, to borrow more, and to have trouble in repayment. Two decades after taking out their student loans, the median Black borrower still owes 95 percent of their debt, whereas the median white borrower has paid off 94 percent of their debt. 

Students of color pursue higher education in a social and economic system built on racist ideologies that is set up to work against them and perpetuate racial wealth and income and achievement gaps. To redress this systemic inequality, the ACLU, Center for Responsible Lending (CRL), and more than 300 other organizations are calling on the Biden-Harris administration and Secretary of Education Miguel Cardona to use their authority under the Higher Education Act to cancel $50,000 of student debt per borrower, and Congress must act as well.

To understand the systemic issues rooted in the student debt crisis, we must start with its history. Though we have normalized the idea that students must take on debt for college, historically students benefited from broad public investment in higher education. However, not all students benefited equally: Black students had little access to GI Bill benefits and, even a decade after Brown v. Board of Education (1954), predominately white institutions (PWIs) in many states resisted integration and equal treatment. Further, state and federal governments continued to inadequately and inequitably fund historically Black colleges and universities (HBCUs) despite the high-quality opportunities they provided and the critical function they performed for Black students and communities. This created and cemented the racial wealth and resource gap in institutions of higher education.

It was in this context that Congress and President Lyndon B. Johnson passed the Higher Education Act of 1965. Recognizing the value of broad higher education access, Johnson hoped the legislation would open the doors of opportunity to everyone, especially Black students and other students of color, through Pell Grants and other subsidies.

Yet by the end of the 20th century, just as Black and Brown students and women gained entry after decades-long legal battles and social struggles, reactionary policymakers shifted the significant costs of higher education from the public to individual families. What had been considered a public good when it was predominantly for white men, became a public burden to be shifted to families

This shift away from public financing, which accelerated after the Great Recession, led to predictable and damaging results: Today the cost of higher education is beyond imagination. It is out of reach for most families, especially Black and Brown students, unless they agree to unsustainable debt. In effect, we are perpetuating the ugly legacy of redlining and housing discrimination by requiring the same Black families that were historically denied wealth to take on a greater debt burden than their white peers. 

The student debt crisis is just one of the latest iterations in the long and shameful history of too many unkept promises to Black and Brown communities. This country didn’t keep its promise to give formerly enslaved people the land that they worked on to build wealth following the Civil War. Then from redlining, inaccessible GI benefits, and now the decreased value of college degrees, Black people have continuously had the roads to economic success blocked outright.  

Canceling $50,000 in student debt can help secure financial stability and economic mobility for Black and Brown borrowers who are disproportionately burdened by this student debt crisis and the impacts of the racial wealth gap in this country. But even after graduation, Black and Latinx people face substantial job discrimination and earn far less than their white counterparts. This income gap makes building financial stability and managing student loan repayment even harder. A college education actually deepens the wealth gap due to the high costs and structural issues in our system. Yet, higher education is a necessity, not a luxury, for today’s workforce.

Due to these persisting inequalities, even with $50,000 cancelation per borrower, there will still be millions of borrowers with debt. That number will only grow unless we overhaul loan repayment altogether and create a debt-free college system. The Center for Responsible Learning argues that the federal government should improve repayment by: (1) clearing the books of bad debts, such as debts that have been in repayment for longer than 15 years; (2) restoring limitations on collections and making student debt dischargeable in bankruptcy; and (3) making repayment truly affordable and budget-conscious through a new income-driven repayment plan open to all borrowers. For new students, a new social contract could also double the Pell Grant and increase funding and support for HBCUs.

We have an opportunity to help millions of families realize their American Dreams, secure financial stability and economic mobility for Black and Brown families, and take a critical step toward closing the racial wealth gap. The charge is clear, the moment is here, and the time for action is now: The Biden administration must cancel $50,000 in student debt per borrower.

Artist and Writer Chanel Miller on Surviving, Identity, and Activism

This week on At Liberty, we’re rounding out our Women’s History Month series with writer and artist Chanel Miller. Miller jumped into the spotlight back in 2015. First known to the public as “Emily Doe,” Miller’s victim impact statement from the sentencing hearing of Brock Turner, who sexually assaulted her on Stanford University’s campus, went viral. The statement she wrote helped spark the #MeToo movement, but her name was nowhere to be found.

In 2019, Chanel stepped out from her anonymity and into authoring her own story. She published the New York Times bestselling memoir, Know My Name. She is now known as a leading voice for survivors of sexual violence and as an emerging artist, currently debuting work at San Francisco’s Asian Art Museum.

Behind every social issue are survivors, often of discrimination, of atrocity, and of violence. Everyone has had an experience that made them feel nameless and faceless. But Chanel knows that in owning our own power and stories, we can gain strength for both ourselves and those around us. She joined us this week to share more about her own journey.

https://soundcloud.com/aclu/writer-and-artist-chanel-miller-on-surviving-identity-and-activism

The Government is Racing to Deploy AI, But at What Cost to Our Freedom?

The U.S. government is embarking on an all-out sprint to develop and deploy artificial intelligence in the name of national security, but its plans for protecting civil rights and civil liberties have barely taken shape. Based on a sweeping new report by a congressionally-mandated commission, it’s clear that U.S. intelligence agencies and the military are seeking to integrate AI into some of the government’s most profound decisions: who it surveils, who it adds to government watchlists, who it labels a “risk” to national security, and even who it targets using lethal weapons.

In many of these areas, the deployment of AI already appears to be well underway. But we know next to nothing about the specific systems that agencies like the FBI, Department of Homeland Security, CIA, and National Security Agency are using, and even less about the safeguards that exist — if any.

That’s why the ACLU is filing a Freedom of Information Act (FOIA) request today seeking information about the types of AI tools intelligence agencies are deploying, what rules constrain their use of AI, and what dangers these systems pose to equality, due process, privacy, and free expression.

Earlier this month, the National Security Commission on Artificial Intelligence issued its final report, outlining a national strategy to meet the opportunities and challenges posed by AI. The commission — composed of technologists, business leaders, and academic experts — spent more than two years examining how AI could impact national security. It describes AI as “a constellation of technologies” that “solve tasks requiring human-like perception, cognition, planning, learning, communication, or physical action; and technologies that may learn and act autonomously whether in the form of software agents or embodied robots.” AI systems are increasingly used to make decisions, recommendations, classifications, and predictions that impact Americans and people abroad as we all go about our daily lives.

The report urges the federal government — and especially intelligence agencies — to continue rapidly developing and deploying AI systems for a wide range of purposes. Those purposes include conducting surveillance, exploiting social media information and biometric data, performing intelligence analysis, countering the spread of disinformation via the internet, and predicting threats. The report notes that individual intelligence agencies have already made progress toward these goals, and it calls for “ubiquitous AI integration in each stage of the intelligence cycle” by 2025.

While artificial intelligence may promise certain benefits for national security — improving the speed of some tasks and augmenting human judgment or analysis in others — these systems also pose undeniable risks to civil rights and civil liberties.

Of particular concern is the way AI systems can be biased against people of color, women, and marginalized communities, and may be used to automate, expand, or legitimize discriminatory government conduct. AI systems may replicate biases embedded in the data used to train those systems, and they may have higher error rates when applied to people of color, women, and marginalized communities because of others flaws in the underlying data or in the algorithms themselves. In addition, AI may be used to guide or even supercharge government activities that have long been used to unfairly and wrongly scrutinize communities of color — including intrusive surveillance, investigative questioning, detention, and watchlisting.

The commission’s report acknowledges many of these dangers and makes a number of useful recommendations, like mandatory civil rights assessments, independent third-party testing, and the creation of robust redress mechanisms. But ultimately the report prioritizes the deployment of AI, which it says must be “immediate,” over the adoption of strong safeguards. The commission should have gone further and insisted that the government establish critical civil rights protections now, at the same time that these systems are being widely deployed by intelligence agencies and the military.

One threshold problem is that, when it comes to AI, even basic transparency is lacking. In June 2020, the Office for the Director of National Intelligence released its Artificial Intelligence Framework for the Intelligence Community — and identified “transparency” as one of the framework’s core principles. But there is almost nothing to show for it. The public does not have even basic information about the AI tools that are being developed by the intelligence agencies, despite their potential to harm Americans and people abroad. Nor is it clear what concrete rules, if any, these agencies have adopted to guard against the misuse of AI in the name of national security.

Our new FOIA request aims to shed light on these questions. In the meantime, the work of fashioning baseline AI protections must move ahead. If the development of AI systems for national security purposes is an urgent priority for the country, then the adoption of critical safeguards by Congress and the executive branch is just as urgent. We cannot wait until dangerous systems have already become entrenched.

Amidst a Wave of Voter Suppression Bills, Some States Expand Access to the Ballot

The struggle for the right to vote is underway at state legislatures throughout the country. Following record voter turnout in the 2020 election, politicians are drumming up false concerns and baseless conspiracies about widespread voter fraud to justify suppressing the right to vote. More than 250 voter suppression bills have been introduced in 45 states. These bills seek to make it more difficult for people to register to vote, vote by mail, or vote in person. 

But voter suppression is only half of the story. In contrast, many other states have learned lessons from the successes of the 2020 election and are seeking to expand access to the ballot. Here are some of the most significant developments at state legislatures this year.

Iowa passes voter suppression bill limiting early voting and vote by mail

The governor of Iowa signed voter suppression legislation earlier this month that will greatly damage access to the ballot. The law cuts nine days of early voting, shortens the timeline for requesting and returning an absentee ballot, and requires that poll places close an hour earlier on Election Day. This bill was supported by politicians that could not provide a single case of voter fraud that the bill would prevent. A new poll shows a majority of Iowans oppose the new voting restrictions. 

In Georgia, every method of casting a ballot is under attack

The Georgia legislature is considering significant cuts to early voting, Election Day voting, and vote by mail. Current proposals that have passed at least one chamber of the legislature include cutting approximately 40 percent of weekend voting hours in Georgia’s five most populous counties, criminalizing providing food and water to people waiting in line to vote, repealing no excuse absentee voting, invalidating most provisional ballots, and making absentee ballot drop boxes functionally useless. These proposals will create unnecessary barriers to the ballot that will directly disenfranchise Georgia’s most vulnerable citizens.   

Florida bill seeks to severely restrict access to vote by mail 

Nearly 5 million Floridians cast their ballots by mail in 2020, and more than 1.5 million used a drop-box to return their ballot. As a direct response to this voter participation, the Florida legislature is considering legislation that will eliminate the use of drop boxes in the state, require voters to submit vote-by-mail applications more often than is currently required, and make it a crime for a friend or caregiver to assist a voter in returning their ballot.

In Montana, registration and voting may become much more difficult, especially for Indigenous and rural voters

The ACLU, ACLU of Montana, and Native American Rights Fund (NARF) partnered last year to sue the state of Montana over a law that made it more difficult for Indigenous people living on rural reservations to access the ballot. The law would have effectively ended ballot collection efforts. Now, the legislature is considering passing a nearly identical bill.  

Additionally, the Montana legislature is considering a bill that would end Election Day registration. In 2016, over 12,000 Montanans — 4.5 percent of all registration applicants — were able to register and cast a ballot on Election Day. 

Kentucky, Delaware, and Vermont are poised to expand access to the ballot

After learning beneficial lessons from the 2020 election, the Kentucky legislature is positioned to expand access to the ballot. The Kentucky Senate has approved a bill that will offer the opportunity to vote early to all voters in Kentucky. If passed, Kentucky will join 43 states and D.C. in providing in-person early voting.

In Delaware, the general assembly is considering a variety of measures to improve access to the ballot. Automatic voter registration and same-day registration will be considered this session. Additionally, many state legislators are pushing to amend the state constitution to allow no-excuse absentee voting, which will open the door to permanent vote by mail options for Delawareans.

The Vermont Senate recently passed a bill that would allow for universally mailed ballots to be sent to every active registered voter. If passed, Vermont would be the sixth state in the nation to adopt this policy.  

The ACLU is combating legislation to suppress the right to vote in state legislatures, while at the same time advocating for policies that will expand access to the ballot. We need no excuse absentee voting, same day registration, automatic voter registration, and access to in-person early voting for every eligible voter. We won’t stop fighting until every eligible voter can cast their ballot. Let people vote!

Punished for a Snapchat: Why Schools Shouldn’t Police Students’ Speech Outside of School

B.L. was 14 years old when she posted eight words on Snapchat that got her kicked off her school’s cheerleading team. She never imagined that four years later, her snap would be the subject of a U.S. Supreme Court case.

While hanging out with a friend at a convenience store on a Saturday afternoon, B.L., our client and a high school cheerleader who hadn’t made varsity, posted “Fuck school fuck cheer fuck softball fuck everything” on Snapchat. The words were superimposed over a photo showing B.L. and her friend with their middle fingers raised. The snap disappeared 24 hours later, long before school resumed. Yet, her school responded by kicking B.L. off the cheerleading team for an entire year. Although B.L.’s snap may seem trivial, the stakes could not be higher. Next month, the U.S. Supreme Court will hear arguments in B.L.’s case, and the decision could alter the free speech rights of millions of students and young people across the nation.

The court’s decision in this case, B.L. v. Mahanoy Area School District, will define the scope of young people’s free speech rights whenever they are outside of school — whether they’re marching at a weekend protest or posting on social media — and determine whether schools have the right to punish students for speech and expression in these out-of-school contexts. Today, the ACLU, the ACLU of Pennsylvania, and Schnader Harrison Segal & Lewis LLP filed a brief arguing that outside of school, young people should have every right to express themselves and voice their opinion without worrying if their school will punish them for it.

Fifty years ago, the court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, under current law, school administrators can discipline students for speech inside school that is deemed likely to be “disruptive” or that interferes with the rights of others. That is not the standard that should apply once young people leave the school or a school-sponsored activity. At that point, they should be free to speak without fear that a principal or school administrator will punish them if they find their speech “disruptive.” The question before the court in this case is what happens beyond school — do young people keep their full free speech rights when they are off campus, or are they always subject to having their expression policed according to the lower protection they have as students in school?

Giving school officials power to monitor and punish off-campus speech just because they deem it “disruptive” would put an unprecedented limit on the free speech rights of students and all young people. Students’ off-campus speech can be punished if it threatens violence or engages in harassment or bullying, much like adult speech can be. But extending the in-school standard outside of school could lead to schools preventing young people and students from criticizing school policies, raising important concerns about racist, sexist, xenophobic, homophobic or just plain inappropriate behavior by school staff or other students, talking about religion, making a joke, or using profanity to emphasize frustration. Young people’s speech rights everywhere would be limited to what they can say in school.

In the past, schools have punished students for what they considered “disruptive” expressions inside school, including speech on racial justice and other social issues. For example, authorities have punished Latinx students for wearing shirts that read “We Are Not Criminals” to protest anti-immigrant legislation, religious students for speaking out against abortion or quoting Bible verses, and have punished students for displaying a Black Lives Matter slide as a background during remote school.

These examples of discipline show how often school officials misuse their authority to police student speech. Giving them the power to police young people’s speech will have even worse results: Students won’t be able to discuss their views on racism, national policy, or religion even outside of school. And, as with most government authority, it’s not hard to imagine how that power will be applied in discriminatory ways. In fact, we’ve already seen schools misuse their power in troubling ways to punish young Black people for what they say outside of school, including for posting a photo of a memorial commemorating a girl’s deceased father, a photo of a boy “holding too much money,” rap music videos, and posts calling out racist slurs used by their white classmates.

Protecting students’ and young people’s full free speech rights when they are outside of school is vital. Taking away that safeguard would have a chilling effect on free speech, deterring young people from engaging in political, social, or religious expression out of fear of punishment. If schools could control young people’s speech rights outside of school like they do inside, young people could never express themselves freely. They’d learn that, in our society, saying anything controversial, unpopular, or critical of the established order can lead to punishment. That’s certainly not the lesson that schools, or the Supreme Court, should be teaching.

New Mexico Showed Us What Protecting Abortion Rights Looks Like

Even though the Trump administration has ended, threats to reproductive rights have not. In the first months of 2021, states have introduced nearly 400 measures to restrict access to abortion in an effort to push abortion further out of reach or force the Supreme Court to overturn Roe v. Wade entirely. But reproductive freedom advocates aren’t taking this assault on our rights lightly: We’re fighting back. There are bright spots on the horizon. Just last month, our state, New Mexico, successfully repealed an abortion ban that had been on the books since 1969, and that we had been fighting to end for years.

We can’t understate the importance of this victory. If we hadn’t successfully removed the ban, and Roe were to fall, patients at any stage of pregnancy could have been forced to beg for permission to have an abortion in front of a panel of strangers. Anyone who performed an abortion outside of this inhumane process could have been charged with a felony. People receiving this care also could have been investigated and charged. If the Supreme Court overturns Roe v. Wade, outdated abortion bans still technically in place in other states could go back into effect.

New Mexicans no longer have to fear that reality. On February 26, Gov. Michelle Lujan Grisham signed S.B.  10, the Respect New Mexico Women and Families Act, into law. This bill is a repeal of New Mexico’s old, outdated abortion ban. It is validation of what we know: New Mexicans have long believed that politicians do not have any place in a person’s reproductive health care.

This victory did not come out of nowhere. In fact, efforts to repeal this ban failed before, in 2017, 2018, and again in 2019. We were several votes short just because of a few conservative lawmakers in the New Mexico Senate. In 2019 the measure failed by just three votes. So last May, we promised to work not only with our longstanding community partners and allied elected officials, but with our national organization to hold those lawmakers accountable. And that’s exactly what we did.

Together, the ACLU of New Mexico and the national ACLU organized a voter education and mobilization campaign. This voter education campaign zeroed in on key districts of state senators who voted to keep the abortion ban in 2019. In response, New Mexicans showed up and sent a clear message to these lawmakers: We support abortion rights. As a result, we wound up with a legislature that was willing to repeal this outdated law.

Then, we set our legislative strategy into motion. The Respect New Mexico Women and Families Act is a reminder of why efforts like these need to be led by on-the-ground activists and advocates. The Respect New Mexico Coalition in particular, co-chaired by Black and Indigenous women, has been a critical leader in this fight for years. As an intersectional movement of women, families, faith leaders, and medical providers, Indigenous, Black, and Latinx reproductive justice leaders alongside reproductive rights advocates, this coalition embodies what we know to be true: Reproductive health care impacts everyone in a community, and so must our organizing.

The bill had widespread support from a huge range of communities. Birth workers, nurses, and doctors testified and wrote public comments supporting the bill and their associations endorsed repeal. Indigenous, Black, Latinx, and Asian leaders, religious leaders, legal experts, LGBTQ-plus folks, people of color, and people from rural communities all supported this bill. Both teenagers and people who experienced the world before Roe v. Wade supported this bill.

Several organizations worked with local artists to commission posters, murals, and other art to inspire respect for what reproductive justice looks like. The ACLU of New Mexico sponsored a mural by New Mexican artist and advocate Jodie Herrera. State Rep. Micaela Lara Cadena and state Sen. Linda Lopez, both women of color, were the fearless lead sponsors on this bill; they were joined by Speaker of the New Mexico House Brian Egolf, Senate Majority Leader Peter Wirth, Reps. Joanne Ferrary, Georgene Louis, and Debbie Armstrong. And, 23 other state senators signed onto S.B. 10 when it was introduced.

The consequences of this win extend beyond our state. With attacks on abortion access in Arizona and the constant barrage of anti-abortion measures in Texas, it is critical that New Mexico remain a haven for reproductive health care for all pregnant people. As states around the country continue to dismantle abortion protection and access, we can now start to look forward and work to expand access to care, making abortion care, birth control, and period products even more equitably available, improving gender equity, and increasing training opportunities among medical professionals and birth workers to prevent maternal and infant mortality.

So, here is what we know: When we work together, locally and nationally, and mobilize all of our resources, we win. And that’s what we’ll continue to do. Together, our legislatures can reflect the will and needs of communities across the country.

Amazon Drivers Placed Under Robot Surveillance Microscope

Last month we learned that Amazon is planning to deploy AI cameras that will constantly scrutinize drivers inside the cabins of its delivery vehicles, and inform their bosses when the camera thinks they’ve done something questionable.

The device Amazon is installing (called “Driveri,” pronounced “driver eye”) has cameras pointing in four directions, one of which is toward the driver. In a video posted online, the company says the “camera records 100 percent of the time when you’re out on your route,” and watches for 16 behaviors that will “trigger Driveri to upload recorded footage.” These include not only accidents but also such things as following another car too closely, making a U-turn, failing to wear the seatbelt, obstructing the camera, “hard” braking or accelerating, and appearing to be distracted or drowsy — or what the AI interprets as those activities, anyway. Sometimes the robot camera will shout commands at you, such as “maintain safe distance!” or “please slow down!” One driver told CNBC that if the camera catches you yawning, it will tell you to pull over for at least 15 minutes — and if you don’t comply, you may get a call from your boss.

The cameras in this system are not streamed live to management; this is an AI monitoring system. The device itself decides when to send video clips to the bosses and when to issue verbal alerts to drivers. But as we have long argued, nobody should make the mistake of thinking that we can’t suffer many forms of privacy harm when being monitored by machines, not least because those machines are programmed to “snitch” to actual humans when they see something they think is bad. The company that makes Driveri, Netradyne, also advertises that its product keeps scores on drivers that are updated — and provided to management — in real time. (Such a function is not mentioned in Amazon’s video).

Given how bad AI is at understanding the subtleties of human behavior and dealing with anomalies, this system could lead to real fairness and accuracy issues. Automated test proctoring software, which also uses video to monitor people for subtle behaviors (in this case, cheating) has certainly been rife with bias and accuracy problems. Machine vision is very brittle and can fail spectacularly — even at the fundamentals, like recognizing a stop sign. Netradyne boasts that “every stop sign & traffic signal is identified and analyzed for compliance measurement.” But what happens when the AI thinks it sees a stop sign where there is none, and flags the driver for “running” it?

Ideally a human being would review the video and exonerate the driver, but given how automated Amazon’s management is, we don’t know how often that will happen. Workers in Amazon’s warehouses, for example, are constantly supervised by robots that judge whether they’re moving packages quickly enough. If they don’t like what they see, those robots issue warnings and even fire workers automatically — without any human input.

Amazon touts the system as a beneficial safety measure. It could indeed reduce accidents — though that should be proven — but as a society we’re going to need to figure out how much to allow ourselves to be overseen by automated AI cameras that engage in intrusive monitoring, judging, nagging, and reporting of our behaviors. Potential fairness issues aside, that kind of monitoring would probably make anyone miserable. There are almost certainly ways to be found to use AI to protect the safety of workers that feel empowering and protective, instead of infantilizing and oppressive.

Meanwhile, this kind of robot monitoring is becoming an increasingly prominent sore spot for workers. Some UPS drivers, for example, have opposed that company’s use of such cameras. (UPS drivers, unlike Amazon’s, are unionized and actually employed by the company whose uniforms they wear.)

Amazon workers’ complaints about robot management are part of growing labor tensions and criticism of the company for unethical labor practices. The company has been sued by the New York attorney general for failing to protect workers against COVID-19 and retaliating against those who complained, and was fined last month by the Federal Trade Commission for stealing workers’ tips. Amazon drivers in particular reportedly face brutal working conditions, and critics charge that the company places performance demands on them that pressure them to drive dangerously fast, while evading responsibility for the resulting accidents by insisting that they’re contractors. The Amazon drivers I have spoken to confirmed that they are urged to drive safely but also pushed to complete an unrealistic number of deliveries within a shift.

Driveri thus looks like a company’s attempt to use technology to solve a problem that its own managerial practices and profit drive may be creating. These technologies are like factory farms that pump our food with antibiotics — an attempt to use technology to unnaturally suppress the side effects of unhealthy and inhumane practices. This is something that we’ve already seen in the trucking industry: Instead of giving drivers protections from unhealthy productivity demands, they get micro-surveillance. And workers end up squeezed on both ends.

That squeeze may only increase as the AI is refined. For example, if sunglasses defeat Driveri’s drowsiness and inattentiveness detectors, drivers may be told they aren’t allowed to wear them. That could be just the beginning of many ways they are forced to conform their behavior, movements, and dress to the needs of the AI that is watching them. We’ve already seen that happen in other areas; we’re no longer allowed to smile in our passport photos, for example, because it reduces the effectiveness of face recognition technology. Ultimately, the technology threatens to enable a modern-day version of Taylorism, a 19th century industrial movement also known as “scientific management” that involved monitoring and controlling the minutiae of industrial workers’ bodily movements to maximize their productivity.

The issues raised by AI video monitoring extend far beyond Amazon and its particular practices. To begin with, Amazon is not the only company experimenting with this kind of robot surveillance; a number of trucking companies, for example, are imposing it on their drivers. More broadly, as AI cameras get smarter, there are many institutions that have different incentives to use them to visually monitor people. We could soon see not just employers but also everything from museums to restaurants to government agencies deploying this technology — anyone who wants to enforce a rule, protect an asset, or gain a new efficiency.

Technological monitoring of workers has long taken place through other data-collection devices, down to and including the time clock, but these new tools don’t require expensive or specialized data-collection devices, or efforts to get workers to use them properly. All that’s needed is a camera. And improving AI is likely to open up ever-wider possibilities for automated visual monitoring, as we discussed in our 2019 report, The Dawn of Robot Surveillance.

Employees like drivers and factory workers whose jobs are most at risk of being supplanted by AI (but for now are just being integrated with it) will be the first to be placed under oppressive AI surveillance microscopes, and we should support their rights to maximize their self-determination through unionization and other measures. But AI monitoring will soon move beyond those groups, starting with less powerful people across our society — who, like Amazon’s nonmanagerial workforce, are disproportionately people of color and are likely to continue to bear the brunt of that surveillance. And ultimately, in one form or another, such monitoring is likely to affect everyone — and in the process, further tilt power toward those who already have it.

Ending Qualified Immunity Once and For All is the Next Step in Holding Police Accountable

As protesters filled the streets last summer to decry the tragic killings by police of George Floyd, Breonna Taylor, Ahmaud Arbery and countless others, they brought signs and slogans with them. Poster board and cardboard pieces were lifted into the air with firm demands scrawled across them: “Justice for George,” “#SayHerName,” “I Can’t Breathe,” and “No Justice, No Peace” were familiar phrases bobbing amongst the sea of activists. As the weeks stretched on, the movement catalyzed by the hideous killing of Floyd caught on video continued to grow, with millions of people taking to the streets. Among the signs, a more specific demand began to appear: Abolish qualified immunity. 

Once an obscure legal doctrine, qualified immunity is now in the spotlight — and in the crosshairs of many activists and advocates nationwide. For decades, the doctrine has shielded police officers and other government employees from being held responsible for all sorts of malfeasance. Qualified immunity makes it nearly impossible for individuals to sue public officials by requiring proof that they violated “clearly established law.” 

In a rare show of solidarity with protesters in cities like Minneapolis, New York, and Portland, courts and state legislatures began to take notice, too — in June, Colorado lawmakers passed a bill that gutted the doctrine’s power in state courts. Multiple lower federal court decisions have also acknowledged how qualified immunity functions more as absolute immunity, and shields police officers from accountability, with even a conservative Supreme Court justice calling the doctrine into question.

The ACLU is a part of the movement to end qualified immunity once and for all, through our work advancing legislation in statehouses, combating the use of the doctrine in court, and advocating for an end to qualified immunity on the federal level. 

In the Statehouse

The brunt of law enforcement’s racial terror campaigns is felt by the Black and Brown communities that are forced to deal with outsized police presence every day. The fight to combat that harm is led by a coalition of grasstop groups that organize and advocate in city halls and statehouses across the country. In several states, including Minnesota, the ACLU has fought alongside these groups to advance reform through legislation. 

  • Minnesota: The ACLU of Minnesota is working with the Institute for Justice to develop legislation that would bypass the effect of qualified immunity by making it easier for people to sue government agencies — not just individual officers — in state courts when police violate their rights. Additionally, the ACLU of Minnesota is advocating to reform the laws that allow officers like Derek Chauvin, who killed George Floyd and who had a long history of civilian complaints on his record, to keep committing violence against the community. Currently under Minnesota state law, civilian oversight boards cannot make findings of fact relating to a complaint against a police officer, impose disciplinary sanctions, or make binding recommendations. H.F. 905 would repeal the law that prevents civilian oversight boards from having these powers, allowing local governments to create empowered boards that can take tangible action against officers accused of misconduct. Removing this barrier at the local level is a first step toward independent, community-informed oversight of policing and public safety.

  • Illinois: After decades of unacceptable police abuse and horrors, current Illinois law still protects out of control officers from being held accountable for violating people’s constitutional rights. These protections do not serve good police officers; they do not serve our communities; they only serve bad apples in Illinois’ police ranks. A recent poll shows that 91 percent of Illinois voters are strongly supportive of legislative efforts that hold police accountable for misconduct and 69 percent of voters agree that reform is necessary now because of racial bias in policing. Reflecting this overwhelming public support, the ACLU of Illinois supports H.B. 1727 — the Bad Apples in Law Enforcement Accountability Act — which removes the protections of qualified immunity in state court so that police officers can be held accountable when they violate someone’s constitutional rights.

  • New Mexico: New Mexico has one of the highest rates of fatal police shootings in the country. The New Mexico Civil Rights Act creates an avenue for New Mexicans to bring claims for damages in state court against police officers and other public officials who violate the rights guaranteed to them under the New Mexico Constitution. The bill specifically prohibits the use of qualified immunity. 

In the Courts 

Last term, multiple petitions before the Supreme Court called into question whether qualified immunity should be limited or abolished altogether. 

  • The court grouped three petitions together, including ours in Baxter v. Bracey, and then repeatedly delayed acting on them. It seemed possible that maybe the court was finally going to meaningfully tackle qualified immunity. Then, on June 15, 2020, mere weeks after Derek Chauvin killed George Floyd and millions of people flooded the streets to protest police brutality, the Supreme Court denied the petitions. Justice Thomas was the only one to write anything on the occasion of the court declining all the petitions; he wrote to protest the denial of certiorari in our case, Baxter. For a brief moment it looked like the cross-ideological coalition we are part of might have convinced four justices to take a case. Then the bubble burst.
  • Five months later, a new glimmer of hope emerged. In November 2020, the court granted, reversed, and remanded a qualified immunity decision out of the Fifth Circuit in Taylor v. Riojas. Trent Taylor was incarcerated in Texas and he spent six days in heinous conditions: The first cell where he was detained was covered almost floor to ceiling in human feces, and he was forced to sleep naked in sewage in the freezing cold in his second cell. The officers responsible for this gross violation were granted qualified immunity by the court, which reasoned that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste … for only six days.” 

The Supreme Court disagreed: “No reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.” As law professor Joanna Schwartz explains, Hope v. Pelzer is the only other case in which “the Supreme Court ruled that qualified immunity could be denied in the absence of a prior court opinion on point … Since 2002, the court had only paid lip service to the notion that qualified immunity can be defeated without a prior case on point.” 

  • Only a few months later, the court did it again in McCoy v. Alamu. McCoy was incarcerated in Texas when an officer attacked him for no reason. The Fifth Circuit granted qualified immunity based on its understanding that the defense is especially difficult to overcome in excessive force cases. But the Supreme Court granted McCoy’s petition, vacated the Fifth Circuit’s opinion, and remanded the case to the lower court with instructions to reconsider the case in light of Taylor.   
  • Taylor and McCoy have ignited a debate among qualified immunity nerds (that’s a compliment), as Adam Liptak has reported. Professor Schwartz argues that “the court is indicating a change” and “appears to be sending a message that lower courts can deny qualified immunity for clear misconduct, even without a case with identical facts.” Jay Schweikert at the CATO Institute, with whom we have worked closely on qualified immunity reform efforts, believes “the Supreme Court has decided to forgo reconsideration of the doctrine in favor of small doctrinal clarifications.” Anya Bidwell and Patrick Jaicomo at the Institute for Justice are the most optimistic, characterizing these as the “early days in the reconsideration — if not ultimate rejection — of the court-created doctrine of qualified immunity.”

We’re very glad to see that there are cracks developing in the shield of qualified immunity. But these cracks are not nearly enough. The ACLU will continue to fight in court to see the doctrine weakened and ultimately dismantled, as we did recently in yet another horrific Fifth Circuit case. 

  • One ongoing case that highlights both the absurdity of qualified immunity and the extent to which officials may go under its protection is Black Lives Matter D.C. v. Trump, the ACLU-DC’s class action lawsuit challenging the vicious and unprovoked attack on civil rights demonstrators in Lafayette Square last June. The defendants in the case were sued under Section 1983 and Bivens, which is another type of case where officers can use qualified immunity. From the Park Police officer who beat a journalist as she was escaping the protest, all the way to former Attorney General Bill Barr, they have all invoked qualified immunity to avoid liability for their misconduct.

In moving to dismiss our case, defendants have argued that their conduct cannot be “clearly established” as unconstitutional — thus defendants are shielded by qualified immunity — unless plaintiffs can point to a specific case involving “a presidential appearance, an alleged dispersal order emanating from the Attorney General himself, a city-wide curfew and emergency order” and more. They are wrong, but under qualified immunity, we can’t be sure a federal court will see it our way and refuse to countenance brutality with impunity.  

In Congress

Qualified immunity reform is needed to ensure that police can be held accountable after they violate the constitution. But we also need reform on the front end that prevents police brutality before it happens. An important first step is to set clear national standards that require all police departments to adhere to common-sense limitations on use of force and best practices. 

  • President Biden has already committed to the creation of a national, model use-of-force standard as one of his racial equity priorities. The ACLU is currently lobbying Congress to pass legislation that ensures this model standard truly conforms to the best practices in the field by embracing the principles set forth in the PEACE Act, which would permit officers to use force only when necessary, proportional, and as a last resort, after less extreme alternatives are exhausted. That standard would not only apply to federal agents, it would provide incentives to state and local police departments to adopt the rule.  
  • Ayanna Pressley’s End Qualified Immunity Act would end qualified immunity for state and local actors. 

Qualified immunity fosters an environment where government agents, including police, may feel empowered to violate people’s rights with the knowledge they will face few consequences. This erodes relationships with the community and diminishes the system’s credibility. Under qualified immunity, lives can be taken with impunity. It’s past time to heed the protesters’ signs, and end this doctrine once and for all.

Sheriff Kristin Graziano and the New Movement for Public Safety

Sheriff Kristin Graziano’s historic election showed widespread community support for the need to reimagine public safety in Charleston County, South Carolina — including the need to invest in people and communities instead of police and incarceration. Sheriff Graziano is moving forward with her commitments to reduce the size, scope, and role of the Charleston County Sheriff’s Department, starting with ending the department’s 287(g) agreement with Immigration and Customs Enforcement. She joined our podcast this week to discuss this choice, and the work ahead. 

https://soundcloud.com/aclu/sheriff-kristin-graziano-wants-to-end-racist-policing-ep-146/s-tWya3PzNwrw

As Sheriff Graziano takes these steps to build a more accountable department, a corresponding movement has gained strength to reimagine public safety in the City of Charleston.

Today in Charleston, nearly one-third of the city’s residents face “shelter poverty” — meaning they can’t afford basics like food, clothing, or transportation after paying to keep a roof over their heads. Charleston residents face an array of challenges: high housing costs force people to forgo other basic needs, pedestrians and cyclists face one of the highest fatality rates in the country, mental health and substance use treatment services are sorely lacking, and gentrification is pushing Black and Brown communities out of our once diverse city at lightning speed.   

Yet instead of investing in solutions to these pressing public safety needs, the city is pouring 26 percent of all city budget funds into the Charleston Police Department. This is despite the fact that 86.2 percent of recent arrests were for nonviolent, largely low-level offenses like marijuana possession or open alcohol containers. Further, these arrests were carried out with a staggering racial bias.

 The real world harms of this budget decision are compounded by the history of racist policing in Charleston. As Sheriff Graziano herself notes, America’s first police force was established in Charleston, created by white people to maintain control over Black enslaved people living inside the city. It was a slave patrol. Since that time, policing in Charleston has continued its role as a tool to oppress Black communities, from enforcing convict leasing, Jim Crow laws, and the war on drugs, to violently repressing the movement for Black lives.

In response to this crisis, a diverse coalition of Charleston-based organizations, including the ACLU of South Carolina, came together to form the Charleston People’s Budget Coalition. The coalition’s mission is to establish an equitable city budget, eliminate poverty and racial disparities, and shift power to create true accountability with city officials. Coupled with the changes to the Charleston County Sheriff’s Department, this community-led advocacy has the potential to turn Charleston into a model for reimagining public safety.

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