ACLU News

A Fair Chance at Opportunity: The U.S. Government Bans the Box

When Rep. Elijah Cummings (D-Md.) reintroduced the Fair Chance Act earlier this year, he said: “This bill would give individuals who are reentering society from prison a fair chance at truly achieving the American dream.” The Fair Chance Act would ban the box that employers use to ask about arrest and conviction history on job applications. It also requires that federal agencies and contractors subject a prospective employee to a criminal background check only after a conditional job offer is made. 

As such, qualified workers with arrest or conviction records can now compete fairly for employment with the largest employer in the world, the U.S. government.

This week, Rep. Cumming’s — who until his death in October, was advancing “common sense criminal justice reforms” for Marylanders and the more than 70 million Americans who have criminal histories — dream has been realized with Congress sending the Fair Chance Act to the president’s desk.

In addition to Congressman Cummings, Rep. Doug Collins (R-Ga.) and Sens. Cory Booker (D-N.J.) and Ron Johnson (R-Wis.) led the effort to “ban the box” at the federal level. Our organizations were pleased to rally for this bill’s enactment as part of a bipartisan coalition that included All of Us or None, JustLeadershipUSA, Center for American Progress, and Justice Action Network

Gainful employment is critical to a person’s successful reentry to society after incarceration and the single most important predictor of whether or not a person will return to prison. But 75 percent of formerly incarcerated people are unemployed a year after release because of employer discrimination against people with criminal records. For Black people, a criminal record means not getting a job interview 40 percent more often than white people with similar histories. With 650,000 Americans returning to communities from prison each year, employers must eliminate barriers to jobs. 

Now, the federal government will serve as a model for fair chance hiring, along with 35 states, the District of Columbia, and over 150 cities and counties that have ban the box policies. This cohort includes many private sector entities as well, with over 100 companies joining the Fair Chance Pledge issued by the Obama White House, which coincided with federal ban the box regulations implemented under that administration in 2015. The impetus for the Obama administration’s actions was the Fair Chance Act that had first been introduced months before in the 114th Congress.             


Four years later, the Fair Chance Act is now law, standing to benefit more than 700,000 new job applicants every year. Fair Chance is a laudable accomplishment for congressional leaders, like Congressman Cummings, and criminal justice reform advocates, like our organizations, who understand that a criminal history should not deny anyone an opportunity to succeed in our economy. Though our work will continue to advance additional fair chance hiring practices in local and state government and the private sector, this week’s win on Fair Chance is a critical step in the right direction.

A Fair Chance at Opportunity: The U.S. Government Bans the Box

When Rep. Elijah Cummings (D-Md.) reintroduced the Fair Chance Act earlier this year, he said: “This bill would give individuals who are reentering society from prison a fair chance at truly achieving the American dream.” The Fair Chance Act would ban the box that employers use to ask about arrest and conviction history on job applications. It also requires that federal agencies and contractors subject a prospective employee to a criminal background check only after a conditional job offer is made. 

As such, qualified workers with arrest or conviction records can now compete fairly for employment with the largest employer in the world, the U.S. government.

This week, Rep. Cumming’s — who until his death in October, was advancing “common sense criminal justice reforms” for Marylanders and the more than 70 million Americans who have criminal histories — dream has been realized with Congress sending the Fair Chance Act to the president’s desk.

In addition to Congressman Cummings, Rep. Doug Collins (R-Ga.) and Sens. Cory Booker (D-N.J.) and Ron Johnson (R-Wis.) led the effort to “ban the box” at the federal level. Our organizations were pleased to rally for this bill’s enactment as part of a bipartisan coalition that included All of Us or None, JustLeadershipUSA, Center for American Progress, and Justice Action Network

Gainful employment is critical to a person’s successful reentry to society after incarceration and the single most important predictor of whether or not a person will return to prison. But 75 percent of formerly incarcerated people are unemployed a year after release because of employer discrimination against people with criminal records. For Black people, a criminal record means not getting a job interview 40 percent more often than white people with similar histories. With 650,000 Americans returning to communities from prison each year, employers must eliminate barriers to jobs. 

Now, the federal government will serve as a model for fair chance hiring, along with 35 states, the District of Columbia, and over 150 cities and counties that have ban the box policies. This cohort includes many private sector entities as well, with over 100 companies joining the Fair Chance Pledge issued by the Obama White House, which coincided with federal ban the box regulations implemented under that administration in 2015. The impetus for the Obama administration’s actions was the Fair Chance Act that had first been introduced months before in the 114th Congress.             


Four years later, the Fair Chance Act is now law, standing to benefit more than 700,000 new job applicants every year. Fair Chance is a laudable accomplishment for congressional leaders, like Congressman Cummings, and criminal justice reform advocates, like our organizations, who understand that a criminal history should not deny anyone an opportunity to succeed in our economy. Though our work will continue to advance additional fair chance hiring practices in local and state government and the private sector, this week’s win on Fair Chance is a critical step in the right direction.

10 LGBTQ Moments that Defined 2019

1. Aimee Stephens goes to the Supreme Court

In October, the Supreme Court heard its first trans civil rights case ever. The case was brought by our client Aimee Stephens, who was fired from her job at a funeral home solely for being transgender. That’s sex discrimination and it violates Title VII of the Civil Rights Act of 1964. 

We have yet to see whether the Supreme Court will uphold the civil rights of trans people. But no matter what, history has already been made. 

“I’ll never forget the feeling of coming out of the Supreme Court and seeing a crowd of trans people and allies chanting to Aimee,” said Chase Strangio, Deputy Director of Transgender Justice. “It’s a special reminder that it’s not about what happens in court, it’s about how we move forward.” 

https://twitter.com/JamesEsseks/statuses/1181928975720955904

Hear Aimee’s story in her own words — from the brave letter she sent to her boss coming out, to the notice of termination she received in response.

https://twitter.com/ACLU/statuses/1192977606259273728

At the Emmys this year, actress and LGBTQ activist Laverne Cox used her red carpet moment to raise awareness about Aimee and her historic case.

https://twitter.com/nowthisnews/statuses/1175943124989947905

2. Transgender people’s access to healthcare under attack

This year the Department of Health and Human Services proposed a change to the Affordable Care Act that would restrict healthcare access and insurance coverage for all trans and nonbinary people. It’s part of a coordinated effort to redefine sex discrimination across federal law. Over 20,000 ACLU supporters submitted comments to HHS opposing this rule, and if it goes into effect, we will sue. 

3. Another historic win for Gavin Grimm

Gavin Grimm’s high school denied him access to the boys’ restroom and refused to give him an accurate transcript listing him as a boy. We sued, and in August, a federal court agreed with us and ruled in Gavin’s favor. 

“It is such a relief to achieve this closure and vindication from the court after four years of fighting not just for myself, but for trans youth across America,” said Gavin. “I promise to continue to advocate for as long as it takes for everyone to be able to live their authentic lives freely, in public, and without harassment and discrimination.”

https://twitter.com/JoshABlock/statuses/1159921329023397889

4. The fight against the trans military ban continues

Soon after President Trump came into office, his administration banned transgender people from serving in the military. We sued on behalf of trans service members like Brock Stone, an 11-year Navy veteran who served in Afghanistan. In March this year, the Supreme Court ruled to uphold the ban while litigation continues. We’re still fighting for Brock Stone, because transgender people belong in the military — trans people belong everywhere. 

https://twitter.com/ACLU/statuses/1154848613920628737

5. The 50th Anniversary of Stonewall

In 1969, trans women of color led riots against police brutality and harassment at the Stonewall Inn, in one of the most important events in the history of LGBTQ activism. Their legacy continues 50 years later as we fight in the Supreme Court to protect transgender people and others from discrimination. Congress can do its part by passing the Equality Act to close the gaps in our civil rights laws and ensure explicit and comprehensive legal protections.

ACLU Trans Justice Campaign Manager LaLa Zannell discussed Stonewall and Pride 2019 on Full Frontal with Samantha Bee. 

6. Trans Day of Remembrance

Trans lives are on the line every day — and in 2019 alone, 25 trans women of color were murdered. Tragically, their lives were taken because they lived in this world that too often fails to value black, brown, and gender non-conforming bodies.

In an interview with Democracy Now, LaLa Zannell explained that Trans Day of Remembrance “is a day for trans people across the country to take a moment to celebrate the living while using that moment to honor the ones we have lost in this movement.” 

7. Trans student athletes fight for the right to participate in sports

Terry Miller and Andraya Yearwood are following their dreams as track stars at their Connecticut high school, but anti-trans advocates want to keep them out of sports. That’s discrimination. 

Thousands have pledged their support for Terry and Andraya and for all transgender athletes who have the right to live as their authentic selves, including in sports. Girls who are transgender are girls.

https://twitter.com/ACLU/statuses/1146516964879343618

The ACLU also stopped a bill attacking trans student athletes in South Dakota. We’re already seeing bills like this planned for 2020 state legislative sessions.

https://twitter.com/ACLU/statuses/1088229141411966977

8. Government greenlights workplace discrimination

Nearly one-quarter of employees in the United States work for an employer that has a contract with the federal government. If the Department of Labor goes through with a new proposed rule, government-contracted employers could soon be able to fire employees for being LGBTQ or belonging to another minority or marginalized group. Over 64,000 ACLU activists submitted comments opposing the proposed rule.

https://twitter.com/ACLU/statuses/1161655208256184320

9. California court rules against anti-trans discrimination in healthcare

ACLU SoCal won a landmark case protecting the rights of transgender patients trying to access medical care. The plaintiff, Evan Minton, was denied medical care because he is transgender, in what has become an increasing pattern of healthcare providers using religious freedom to discriminate against trans people. Religion should never be a license to discriminate. 

https://twitter.com/EvanMMinton/statuses/1174099759189020672

10. We won an Emmy

Our documentary film Trans in America: Texas Strong won an Emmy Award for best documentary. The film is an intimate portrait of Kimberly and Kai Shappley, a mother and daughter navigating life in a religious community where Kai’s rights as a trans girl have been under attack — including her right to use the girls’ bathroom at school. 

https://twitter.com/ACLU/statuses/1176699096473751553

https://twitter.com/chasestrangio/statuses/1202307858752253954

A Tennessee City Banned Surgical Abortion Within the City Limits. We’re Taking Them to Court.

For 30 years, I have worked in reproductive health care. In my current role as Chief Operating Officer of carafem, a nonprofit with a national network of health centers, I know the difference compassionate and comprehensive reproductive health care makes in the lives of our clients. I have witnessed the personal impact when people who have the legal right to have a child or to have an abortion are denied those rights due to outrageous societal barriers. Abortion providers are used to opposition, but we’ve never experienced the kind of explicit targeting we received from politicians in the city of Mt. Juliet, Tennessee. It took the local politicians less than 48 hours after we opened our doors to try and shut us down, but after serving the community for the past nine months with services limited by politics, today, we’re fighting back in court.

At carafem, we strive to expand access to compassionate and convenient abortion care as well as other reproductive health care services. With offices in three different states, we served clients in the Atlanta, Washington D.C., and Chicago communities. Late in 2018 we learned that many people in Tennessee were forced to drive hours to reach an abortion care provider, as we started to see many clients from Tennessee at our health center in Atlanta, Georgia. We decided then that carafem needed to bring services to central Tennessee so we looked for space in the area to open our fourth health center. Soon thereafter, we found an accessible location in the Nashville suburb of Mt. Juliet, where we could provide medical services in a private, secure, and professional environment.

We quickly learned that our presence was not welcomed by city government when we were met with open hostility by local politicians. But, unlike many politicians who seek to restrict access to abortion, Mt. Juliet’s public officials did nothing to even attempt to hide their intent or political agenda. Instead, they promised loud and clear to do whatever they could to prevent individuals from exercising their legal right to abortion.

One city commissioner stated, “The members of the commission I have talked to are 100 percent behind shutting this abomination down.” Another said, “I was disgusted to hear they plan to open in my district and my town. If there is anything we can legally do to keep them from opening in Mt. Juliet, we will do it.”

These politicians immediately followed through on their threats. As soon as Mt. Juliet’s zoning commission got word that we had opened a health center, it convened and amended its zoning code to treat surgical abortion care providers differently from all other medical services. In effect, the new ordinance makes it impossible for us to offer surgical abortion care within city limits.

We are still able to provide medication abortion in Mt. Juliet and have provided care to hundreds of clients in this office — but medication abortion isn’t an option for everyone, and we’ve been forced to turn away many clients who need aspiration, or surgical, abortion care. The provision of aspiration abortion is central to carafem’s mission of ensuring full access to reproductive health care. 

It’s clear that this ordinance is yet another attack by hostile politicians on reproductive rights. If this zoning ordinance remains in place, Mt. Juliet politicians will have prevented us from providing comprehensive care options to our clients and will have denied our clients the right to choose what is medically best for them. Those seeking a procedure will be forced to travel elsewhere to access the kind of abortion care they want or need — care that we could otherwise provide.

This is not just wrong — it’s illegal. We are filing this lawsuit with the ACLU because we will not be intimidated. The people of central Tennessee deserve access to safe, comprehensive abortion care — rather than having their options limited by some political agenda. Mt. Juliet officials have tried their best to stop us, but we have decided to fight.

A Secret CBP Team is Targeting and Detaining Innocent Travelers. We’re Suing.

U.S. Customs and Border Protection is deploying secret teams that target, detain, and interrogate innocent travelers. We’re suing to expose their activities.

In November 2018, three CBP officers detained Andreas Gal, a former chief technology officer at Mozilla Corporation and current Apple employee, at San Francisco International Airport after he landed from a business trip to Sweden. Andreas was offered no reason for the detention, except a receipt from a Global Entry kiosk that was marked with the letters “TTRT.”

The officers asked Andreas questions that focused on his First Amendment-protected speech and activism. Andreas is an outspoken proponent of online privacy and has spoken publicly about his opposition to warrantless mass surveillance and views on the current administration’s policies. The officers also repeatedly sought to search Andreas’ electronic devices, which included the contact information of his family and friends, correspondence, and further information about his opinions and views.

Andreas, a U.S. citizen, was eventually allowed to leave. Abdikadir Mohamed, an immigrant, was not so lucky.

Abdi was at JFK International Airport in December 2017. On his way to board a connecting flight to reunite with his pregnant wife and his daughter in Columbus, Ohio, two CBP officers approached him. By that point, Abdi had already cleared immigration and security screenings. Nevertheless, the officers asked to examine Abdi’s stamped documents, and his boarding pass, which he provided. Unsatisfied, they asked him to come to a separate room for additional questioning, and told him to unlock his cell phone.

After 15 hours of interrogation, the officers declared Abdi ‘inadmissible’ and sought to deport him. Abdi chose to contest his deportation and seek asylum, following which he was sent to ICE detention in New Jersey. After 19 months in detention, an immigration judge granted Abdi’s asylum claim and reunited him with his family in the United States.

CBP’s treatment of Andreas and Abdi is disturbing, and they are not isolated incidents. We now know that the officers that targeted Andreas and Abdi are part of a secretive team CBP has deployed to at least 46 airports and other U.S. ports of entry. We also learned during Abdi’s asylum proceeding that these teams are called Tactical Terrorism Response Teams, which we now know explains the acronym, TTRT, printed on Andreas’ Global Entry receipt.

While TTRTs operate largely in secret, we know from public statements by CBP officials that the teams are explicitly targeting individuals who are not on any government watchlist — as flawed as even those are — and who the government has never identified as posing a security risk. Even more concerning, former CBP Commissioner and former acting Secretary of Homeland Security Kevin McAleenan has indicated that TTRT officers may rely on their “instincts” or hunches to target travelers.

An officer’s reliance on “instincts” creates the risk that these secretive teams are targeting travelers based on explicit or implicit biases. Such targeting may result in unlawful profiling if officers detain, search, and/or question travelers on the basis of their race, religion, ethnicity, or national origin. It may also result in officers detaining and questioning travelers because of their speech or associations, which may be protected by the First Amendment. Finally, these teams’ activities raise due process and fairness concerns when information inappropriately gathered by them results in further government scrutiny, such as placement on a government watchlist. 

In fiscal year 2017 alone, these teams denied entry to over 1,400 individuals with valid travel documents.

There is still a lot that we don’t know about these secret teams, and CBP failed to respond to our request for information. Now, together with the New York Civil Liberties Union, we’re asking a federal court to order the agency to turn over information about these secretive teams.

The public has a right to know how these teams operate, how their officers are trained, and whether the guidelines that govern their activities contain civil liberties and privacy safeguards. We also want to know just how many individuals are subject to detention, questioning, and/or denial of entry into the U.S. by these teams, and the basis for these decisions.

There can be no meaningful accountability if there is no transparency. For too long, the government has acted as if it has carte blanche at the border. It’s time to shed light on the shadowy operations of CBP’s secret teams.

We’re Suing to Make Sure that CBP Can’t Keep Asylum Seekers from Their Lawyers

This year has been one filled with outrage over the appalling conditions that asylum seekers face while in the custody of Customs and Border Protection (CBP). We’ve read about children and teenagers dying, people being denied medication, and one hielera — or “icebox” due to its freezing temperatures — where some people were reportedly forced to drink out of a toilet.

Now, that very facility is also where the Trump administration is rolling out its newest attempt to destroy the asylum system. For the first time, it is where vulnerable, exhausted people who’ve fled persecution will face the interviews that will determine whether they’re able to pursue their claim for asylum or protection. The purpose is to make it as hard for them as possible by rushing them through the process in horrible conditions, without meaningful access to lawyers.

At the Border Patrol station, located in El Paso, Texas, the government is piloting a new policy where asylum seekers are held effectively incommunicado throughout the asylum screening process. Asylum seeking families and individuals are prevented from reaching attorneys and others who can help them while they are rushed through a “credible fear” interview and review by an immigration judge over the phone. If they don’t pass, they are sent back to the country they’ve fled. That’s it — the whole process starts and finishes within a few days, and it’s all playing out in a Kafkaesque CBP detention site at the border.

If you haven’t heard about this, you’re not alone: the administration secretly rolled out the policy back in October through two programs — “PACR” (for non-Mexican asylum seekers) and “HARP” (for Mexican asylum seekers).

Like so many of the Trump administration’s policies designed to harm asylum seekers, these programs break with decades of agreement that people fleeing threats and violence should have a fair chance to prove they need protection. Never before have asylum seekers been jailed in CBP custody during the credible fear process. That’s because the conditions in CBP facilities are completely incompatible with what’s needed to ensure that the process is conducted fairly.

These facilities have always been short-term jails used to process people who cross paths with Border Patrol. They have never been adequate even for those short-term stays, and they do not provide people detained in them with access to attorneys, family, or the public. People detained in them can’t meet with a lawyer or make regular phone calls. There aren’t even beds, so they must sleep on aluminum blankets, mats, or directly on cold concrete floors. The agency has even said it has “no obligation to notify family or counsel” that it is holding someone.

Before PACR/HARP was launched, asylum seekers in the El Paso area were typically transferred to ICE jails for their credible fear interviews. Those jails are at least required to facilitate access to attorneys and permit calls to family members — though they often fail to do so. The credible fear interview is intimidating — it involves a detailed discussion of what are often the most traumatic moments people have ever experienced — and newly arrived asylum seekers may not understand the purpose or critical importance of the interview. The government has a legal obligation to let asylum seekers work with attorneys in preparing for and going through the credible fear process. CBP detention makes it impossible.

Because of these new policies, asylum-seekers who deserve protection could be wrongly sent back to the countries they fled. It is all but guaranteed that some of them will die as a result.

So we sued. We intend to stop the Trump administration from implementing PACR and HARP. It’s their latest attempt to eviscerate our most basic asylum protections.

Our plaintiffs include two families who are both now hiding in El Salvador after being rushed through the asylum process with no access to an attorney. CBP held them incommunicado in tents and hieleras without beds for days during their credible fear process. They each had only a single thirty-minute window in which to make phone calls to the outside world. Officials gave them a list of lawyers known as “the list of ghosts,” because no one ever picked up or returned their calls.

Since there was no way for attorneys (or loved ones) to call them back or otherwise reach them while they were in CBP custody, and no other opportunities to make phone calls, they went through their credible fear processes alone. No attorney explained to them what was happening or how an asylum officer would be evaluating their case.

Both families fled after gang members threatened to kill them and the Salvadoran police said they could not protect them. Without an attorney, they did not pass their credible fear interviews. The government put them on a plane back to El Salvador, where they are now hiding in fear from the gangs they fled, afraid to even leave the place in which they are living.

This administration is systematically destroying our longtime commitment to asylum. We must fight back. People seeking safety in the U.S. deserve a meaningful opportunity to plead their case before being sent back to danger and possible death — both the law and our values require it.

A Little-Known Privacy Battle Is Being Waged Over Encrypting the Nuts and Bolts of the Internet

An important fight is brewing over the nuts and bolts of the Internet that has significant implications for the privacy and security of all Internet users. The fight has already pitted Google and Cloudflare against American telecommunications companies, which are lobbying Congress to complain about the search giant. The fight is complicated, but at its core are questions about control over data, centralized power, and who should bear privacy risks. We believe that everyone deserves to be able to use the Internet without being subject to mass surveillance.

This particular fight centers over a new layer of encryption that Internet technologists (including one of us) have developed to further protect the privacy and security of Internet users. The ACLU is increasingly engaged with these kinds of battles over technical standards that shape Internet infrastructure in important ways — determining, for example, whether that infrastructure facilitates the violation of privacy and centralization of power, or autonomy and secure communication for all. These fights usually take place far outside of the limelight, but the brewing fight between the telecoms and providers like Google and Cloudflare is getting more attention than most.

To understand what is at stake requires explaining a little about how the Internet works — specifically about something that people online use every day: the Domain Name System (DNS). If you enter “aclu.org” into your browser, your computer reaches out to a server known as a DNS “resolver,” which tells your computer the IP address that it needs to download a web page. The DNS server then tells your browser that the web site with that name can be found at the IP address 151.101.58.217. Obviously, for humans, that’s a lot harder to remember than “aclu.org,” but your browser needs the IP address to reach our site.

Where does your computer find that DNS resolver? One of the strengths of the Domain Name System is that there are many DNS resolvers that can give you the same answer. You can manually direct a computer, router, or application to talk to a specific DNS resolver, but if you’re like most people, then your devices default to using whatever resolver your Internet service provider (ISP) offers, or to the resolver recommended by the WiFi or other network you’re connected to.

There are two major problems with the DNS, however.

The first is that whoever operates the DNS resolver gets to see the names of all the web sites that you visit (and potentially other Internet metadata as well). These days, that’s a valuable set of information, and a significant privacy problem. The second is that our communications with DNS servers have long been carried out in unencrypted plaintext. That means that your Internet activity is visible not only to whoever operates your DNS resolver, but also to anyone in the network who passes along the data that is exchanged between you and the DNS server. This not only creates privacy problems, but also security problems as it opens up avenues for hostile hackers to phish people, trick people into unknowingly visiting spoof web sites, or deliver malware or ads.

The first problem is to some extent unavoidable, but we can mitigate it in two ways: a) people should connect to DNS resolvers run by entities that are not in the businesses of collecting, storing, and monetizing people’s online activities; and b) make sure that there is a large diversity of actively used DNS resolvers, so that our information is not all centralized in one place.

The second problem — the lack of encryption — has been solved by new standards that use encryption to protect your data as it flows between your device and a DNS resolver. Such “private DNS” techniques, however, are relatively recent standards, and are offered only by some DNS resolvers.

That is where the telecoms’ complaint to Congress comes in. Google has proposed programming its Chrome browser and its Android operating system to automatically default to using Private DNS whenever a user’s existing DNS resolver supports it. That would certainly be a good thing. But the telecoms are also accusing Google of planning to route all Chrome and Android DNS traffic (a substantial portion of the world’s DNS queries) to Google’s own (private) DNS resolvers, thereby leading to a dangerous centralization of DNS lookups.

But contrary to the telecoms’ claims, Google’s stated plans do not actually involve centralizing DNS lookups to a specific resolver. Rather, they intend to automatically upgrade existing cleartext DNS traffic to private DNS when the user’s existing resolver is known to offer a secure channel. The nonprofit Mozilla Foundation, maker of the Firefox browser, has, however, announced that it plans to route DNS traffic generated by some future Firefox browsers to the resolvers run by a single entity, the company Cloudflare. Th. Firefox has been scrupulous in only doing this under a strict privacy agreement with Cloudflare, but users under different legal jurisdictions from Cloudflare might not appreciate their data ending up at this service provider, despite the privacy agreement.

Critics have pointed out that the telecoms are hardly being good Samaritans by pushing back against private DNS here. After the major ISPs successfully pushed the Trump administration and Congress to roll back ISP privacy protections, the telecoms have continued gearing up to try to make money by spying on their customers’ Internet usage. One of their big worries appears to be that they’ll lose out on their money-making surveillance if their customers are induced to shift to DNS servers that are not run by them and that are encrypted so they can’t spy on them.

Rather than hindering the deployment of private DNS and its resultant gains to end user privacy, the ISPs should upgrade the resolvers they already operate to also offer private DNS. If an ISP is a good steward of user data, then they should make it easy for people to use their services securely. They should be advocating for, not against, private DNS.

The ISPs are not wrong, however, in pointing out that centralization of DNS lookups would be a bad thing — including for privacy. We wouldn’t want one company having access to a list of all the people who visited narcotics.com, for example, or a list of all the sites that a particular person has visited. (In 2017, President Trump signed a measure removing privacy protections that prohibited ISPs from doing just this kind of spying; those need to be restored.)

We want private DNS to become the standard, available to all, and we want a diversity of DNS resolvers so that lookups and the information they reveal don’t become centralized — especially in the hands of any company bent on monetizing personal information. The way to fix centralization is through diversity, not by preserving the spying ability of ISPs.

There are tensions between these goals that will need to be solved along the way. Asking all users to make technical choices about which DNS resolver their devices and applications use is probably not the way to go — yet if particular private resolvers are selected globally by default by major players, that risks centralizing DNS queries around a few companies and undercutting the distributed nature of the Internet.

These tensions are resolvable, however. Among other things, we need more user-interface research to improve the experience of choosing among diverse DNS resolvers, and better systems for making reasonable, non-centralized choices for users who don’t have the time or interest to choose for themselves. Ultimately, the important thing is that policymakers, people who work in the tech community, and other interested Internet users should all push for the dual goals of making private DNS the standard and ensuring a diversity of DNS resolvers.

Private DNS protocols can help protect privacy online, and an increasing amount of software is capable of taking advantage of them, or will be soon. But it doesn’t stop there. There is a larger journey toward a more private and secure Internet that is underway. Diverse private DNS resolvers are one step in that journey, but there are others that also need to be taken (such as protecting DNS traffic between resolvers and “authoritative” DNS servers and minimizing metadata leakage in other Internet protocols). Piece by piece, we’re making the Internet more privacy-friendly and more secure.

Menstruation-Related Discrimination is Sex Discrimination —We Don’t Need to Erase Trans or Non-Binary People to Make That Point

Around the country and the world, people are mobilizing for menstrual equity. Central to the policy agenda: accessible and affordable period products for everyone who needs them. As legislative interventions gain traction, advocates are also readying legal arguments to challenge unfair policies. Constitutional law scholar and dean of UC Berkeley Law Erwin Chemerinsky recently co-authored a Los Angeles Times op-ed proposing that the failure of states to exempt menstrual products from sales tax — the tampon tax — amounts to denial of equal protection under the Constitution.

In forging these claims, a question emerges: How can we recognize that barriers to menstrual access are a form of sex discrimination without erasing the lived experiences of trans men and non-binary people who menstruate, as well as women who don’t? Some arguments that challenge discriminatory laws based on sex-linked characteristics have made the point that “only women” menstruate, get pregnant, or breastfeed. But that is not a full or accurate portrayal — and menstrual stigma and period poverty can hit trans and non-binary people particularly hard: 

  • Trans people are three times as likely to be unemployed and more than twice as likely to be living in poverty as the general population. Those who are disabled, people of color, or undocumented immigrants are especially likely to be unemployed and living in poverty.
  • While free menstrual products are not uniformly provided in women’s restrooms, they are almost never available in men’s restrooms, even for pay. Men’s restrooms are also less likely to have a place to dispose of these products conveniently, privately, and hygienically.   
  • Similarly, women’s homeless shelters sometimes provide menstrual products, but men’s typically don’t. Some domestic violence shelters exclude trans and non-binary people — even though more than half have experienced intimate partner violence. Those shelters often provide a variety of types of support, including access to menstrual products for those who need them.
  • While access to menstrual products in women’s prisons is often inadequate, it is far worse in men’s prisons. Trans and non-binary people may be incarcerated in either.
  • Menstruation is not the only reason trans and non-binary people may need menstrual products. Trans women and non-binary people may also need pads and liners for months after vaginoplasty, and occasionally at other times. Some who take estrogen also experience period symptoms such as pain and nausea and may need medication to manage these symptoms. Those who experience endometriosis or adenomyosis, conditions that can cause continuous heavy bleeding, often face barriers to treatment, as well as an ongoing and often unmet need for pads and tampons.

Simply stated: because limited access to and the cost of menstrual products can hit trans and non-binary communities especially hard, as a matter of policy, a holistic agenda for menstrual equity and access must include trans people. (We have a Menstrual Equity Toolkit for those interested in how to create one

But what about in the court of law?

The constitutional argument is straightforward. Any law that targets one sex — or one race, or one religion — is inherently discriminatory. In the context of the tampon tax, for example, Dean Erwin Chemerinsky harkened to a famous remark by Supreme Court Justice Antonin Scalia that a tax on yarmulkes is a tax on Jews. By analogy, a tax on menstrual products is a tax on women — even though not all women menstruate, and some men and non-binary people do.

Legally, the focus is on the intention behind the action. Targeting something associated with one group can show intent. This doesn’t require that allor only people from the targeted group do the activity.

Take yarmulkes again. Not all Jewish people wear yarmulkes, and some people who aren’t Jewish do wear yarmulkes (for example, if attending a Jewish religious service). Still, if a legislature decided to tax people for wearing yarmulkes, or to impose sales tax on yarmulkes but not similar items, that would be anti-Semitism, and it would violate the constitution. Similarly, imposing a sales tax on menstrual products but not similar items is sexist, and violates the constitution.

Discrimination is illegal even when it affects members of multiple groups. Feminist scholars have long pointed out that sexism can harm people other than women. For example, Paula England has pointed out the tendency to devalue labor traditionally done by women, even when it is done by men. Ruth Bader Ginsburg famously challenged a rule that denied widowed fathers benefits that widowed mothers received. The rule both discriminated against women workers, who couldn’t earn the same benefits for their families that men did, and against men who wanted the opportunity to care for their children.

We don’t need to erase trans or non-binary people to show that barriers to menstrual equity, such as the tax on menstrual products, are unconstitutional sex discrimination. This tax targets a bodily function associated with women for less favorable treatment. It relies on sexist ideas that women’s needs are frivolous and unnecessary. It is irrational, and it directly affects cis and trans women, trans men, and non-binary people. It’s unfair, unconstitutional, and illegal.

It’s Clear: In Oklahoma Cash Bail is Being Used as Ransom to Keep People Who Are Poor Behind Bars

Imagine you are one of the 4,000 people arrested every year in Canadian County, Oklahoma, a county with less than 200,000 people. Maybe the police find marijuana in your car during a traffic stop, maybe the police have mistaken you for someone else, or perhaps you can’t afford the $40 per month you owe the court from a different charge.

After you’re arrested, things will go one of two ways. You may spend an hour or two in the jail for booking and then go home until your court date. Or, you might sit in jail for weeks or months until your court date, eating substandard food and sleeping on a linoleum floor.

What decides which way things will go for you? It’s not how serious the charges are. It’s not whether or not you pose a flight risk. The calculus is simple, and illegal: If you have money, you get out. If you are poor, you stay in. That’s why we sued.

Our client, Jermaine Bradford, was arrested on November 20, 2019 for misdemeanor charges and brought to the Canadian County Jail. He didn’t see a judge until he’d been in jail for almost a week.

When he was finally able to see a judge, it was hardly the kind of fair, robust hearing you would expect after being held in a cage and forced to sleep on the floor while longing for a chance to explain why you should get your freedom back. During the hearing, neither the judge nor Jermaine were in a courtroom. The judge met with Jermaine on a video monitor from her office, behind a closed door, away from the prying eyes of the public. The system provided no lawyer to represent Jermaine. The judge did not ask Jermaine he could afford for bail or let Jermaine ask any questions. At the end of the hearing, the judge told Jermaine his bail was set at $2,000. The whole encounter lasted less than three minutes.

Jermaine has now been sitting in jail for 19 days because he can’t afford his $2000 bond. Because he is poor, he can’t even afford the $200 he would have to pay a bondsman to get out. He is sitting in jail because the state is demanding a ransom for his freedom that he cannot pay. Ironically, he is caught in an awful cycle where every day he sits in jail he accrues even more fines that he cannot pay. To make matters much worse, if Jermaine could scrape together enough money from family or friends to pay the bond amount, he would lose his constitutional right to a public defender. In Canadian County, if you bond out of jail, you are deemed too wealthy to qualify for a public defender. Thus, every poor person is faced with having to choose between their constitutional right to freedom and their constitutional right to a lawyer.

This cycle is cruel, and unconstitutional. And that’s why we sued. Jermaine — and every person locked in the Canadian County jail — deserve a real, in-person hearing with a lawyer to represent them, in a courtroom open to the public and presided over by a judge who asks questions about whether they have a job and what they can pay. Jermaine — and all of us — deserve a system that makes sure he doesn’t sit in jail, just because he’s poor.

In the Midst of Trump’s Attacks, Offshoots of Progress in Congress for Immigrants’ Rights

From the continued separation of families, to attacks on asylum-seekers, to the largest immigration raid ever in a state, to an unprecedented number of immigrants jailed by ICE, this year was filled with new lows for the Trump administration.

The ACLU, partners, and activists have been fighting nonstop for immigrant communities across the country. ACLU activists took over 400,000 actions against Trump’s anti-immigrant agenda and in support of humane immigration policies. Even in today’s challenging political climate, we are seeing our immigrants’ rights movement grow and gain momentum. This year, Congress introduced important legislation and carried out a steady stream of oversight hearings. Below are some highlights from this year.

The Trump administration rescinded a number of critical programs that protected two million immigrants from deportation, including protections for Dreamers through Deferred Action for Childhood Arrivals (DACA), and immigrants from countries including Nepal, El Salvador, and Liberia through Temporary Protected Status (TPS) and Deferred Enforced Departure (DED). In June, after months of advocacy and massive public support, the House of Representatives passed the Dream and American Promise Act (H.R. 6). This was the first bill focused on granting a pathway to citizenship to pass a chamber of Congress since 2010. ACLU activists sent over 10,000 messages in support of the bill. 

The House of Representatives passed Rep. Veronica Escobar’s bill, the Homeland Security Improvement Act (H.R. 2203), which would increase oversight and provide meaningful accountability of ICE and CBP’s actions. Senator Udall introduced a Senate counterpart of the bill.

There were also a number of bills introduced this year that serve as the gold standard for a future administration and Congress committed to immigration reform. Last week, Rep. Chuy Garcia introduced the New Way Forward Act, which if enacted would lead to a dramatic and large scale reform of our existing punitive immigration enforcement system. The Act corrects injustices embedded in our immigration laws, many of which have enabled this administration’s cruel and inhumane assaults on noncitizens in our country and at the border. This bill would dismantle the draconian immigration laws passed in 1996 and would restore fundamental principles of due process and compassion to a deeply imbalanced immigration system.

Other important bills include Representative Jayapal and Senator Booker’s bill the Dignity for Detained Immigrants Act; Senator Durbin’s bill on solitary confinement; legislation by Senators Leahy and Murray to curtail the existing “100-mile border zone;” and Representative Brown’s bill on access to counsel for immigrants. 

And right now, funding for the Department of Homeland Security — specifically its sub-agencies ICE and CBP — is at the center of budget negotiations for the next fiscal year. Through extensive advocacy from organizations and constituents, there is an ongoing fight to ensure that our government’s budget does not give another raise to the president for continued attacks on immigrants. ACLU activists have made and sent almost 30,000 calls and emails to their representatives on the issue. 

Legislation, however, is just the tip of the iceberg. One of the best ways Congress wields its power is demanding answers of government officials through oversight hearings. Members can also call on non-government witnesses to provide a firsthand account of the impact of immigration laws and policies on real people. The ACLU has testified or been involved with numerous hearings this year — perhaps more than we’ve ever seen in a single calendar year. 

ACLU staff and clients provided expertise, submitted statements, and testified this year on numerous issues including: family separation; the deportation of veterans and service members; the lack of oversight, expansion, and abuses in detention; Trump’s attacks on asylum and immigrants along the border; deferred deportation for people with serious medical conditions; and the unprecedented Mississippi ICE raids

The threat to immigrants’ rights is far from over. The ACLU will continue the fight against Trump’s abuses and hold members of Congress accountable to our values and the Constitution. 

Part of an end of year wrap-up series. Read more:

2019 was a Watershed Year in The Movement to Stop Solitary Confinement

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

The 2020 Election Promises Record Turnout

Under Attack by Trump, Immigrant Justice is Advancing in the States

The Battle for Abortion Access is in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

2019 was a Watershed Year in the Movement to Stop Solitary Confinement

Back in 2016, then President of the United States, Barack Obama, called solitary confinement “an affront to our common humanity” and ordered the Justice Department to implement reforms to the practice in U.S. prisons. Although just three short years ago, in too many ways it seems a different age: We have seen a resurgence of the “tough on crime” rhetoric that favors harsh policies and approaches that we know don’t work. Despite these painful setbacks in other areas, the strength of grassroots movements, political leadership, and growing public awareness have created a robust and growing movement to end solitary conferment — known to those of us in the justice community as Stop Solitary — dedicated to ensuring that this torturous practice ends up in the dustbin of history where it belongs.

In 2019, we saw national momentum to reign in the abusive use of solitary confinement expand faster than ever before. This year was record-setting in terms of reforms we saw introduced in state legislatures. Twenty-eight states introduced legislation to ban or restrict solitary confinement, and twelve states passed reform legislation: Arkansas, Connecticut, Georgia, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Mexico, Texas, Washington, and Virginia. Some of these new laws, such as those in Connecticut and Washington, present tentative and piecemeal approaches to change. But most represent significant reforms to existing practices that promise to facilitate more humane and effective prisons, jails, and juvenile detention centers.   

New Jersey passed the strongest law yet in the nation, limiting the length of solitary confinement to 20 consecutive days for all prisoners and detainees. Before the passage of this law, New Jersey put people in solitary for months or even years at a time. The new law ends that practice and also protects vulnerable populations from the harms of solitary, including people under 21 and over 65, pregnant and post-partum people and those who have recently suffered a miscarriage or terminated a pregnancy, LGBTQ people, those with serious medical conditions, and those with various forms of mental health or developmental disabilities.

Nebraska’s law also stands out: It bans any practice that looks like solitary for minors, pregnant people, and those with serious mental illness, developmental disabilities, or traumatic brain injuries. New Mexico also moved aggressively to ban solitary for minors and pregnant people and ban its use on individuals with serious mental illness. Several states, including Georgia, Texas, Montana, and Maryland passed laws prohibiting the use of solitary on pregnant people, and Montana, Maryland, and Arkansas also passed prohibitions on the use of solitary confinement on minors. In total, five states limited the use of solitary confinement on minors, and six prohibited its use on pregnant people. We even saw this issue taken up at the federal level, with the first briefing in the U.S. House of Representative highlighting The Solitary Confinement Study and Reform Act of 2019, a bipartisan bill which would establish a national commission to study the problem of solitary confinement and recommend national standards for reducing its use.

The one major disappointment came from New York, where the widely-supported HALT Solitary Bill was never brought to a vote after legislative leaders cut a deal with New York Governor Cuomo to let the prison administrators write their own reform policies. Those proposed rules have already been widely panned as woefully inadequate to stop the torture of solitary in New York State. Despite these setbacks, advocates in New York continue to push for passage of HALT and the implementation of real reform in the state, including a 15-day limit on solitary confinement that conforms with the international human rights standards set forth in the United Nations Standard Minimum Rules on the Treatment of Prisoners, now known as the Mandela Rules. If HALT passes in 2020, New York will be the first state in the nation to incorporate the Mandela Rules into its laws.  

Advocates across the country are now gearing up to introduce more legislation to Stop Solitary and to ensure that the significant reforms passed in 2019 are actually implemented by corrections institutions as the laws require. State by state and community by community, solitary survivors, civil rights advocates, faith leaders, medical professionals, politicians, and interested members of the public are joining together to bring an end to the torture of solitary confinement in the United States. Much has changed since President Obama spoke of “our common humanity” in 2016, but that humanity remains the same. It demands that we end solitary confinement once and for all — to the protect the people it harms and the communities they will return to, but also so we can be the type of country we aspire to be.           

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We won on Multiple Fronts

The Battle for Abortion Access is in the States

The 2020 Election Promises Record Turnout

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

Trump’s War Pardons Are Sabotaging the Military Justice System

Last month, in an unprecedented move, President Trump pardoned war crimes charges against three U.S. military service members. The decision provoked opposition from former military leaders and many veterans, but was applauded by some lawmakers and media.

The three men forgiven by the president — Lt. Clint Lorance, Maj. Mathew Golsteyn, and Chief Edward Gallagher — had committed or were accused of horrifying crimes. Lorance was serving a 19-year prison sentence for ordering the murder of two unarmed Afghan villagers. Platoon members who turned him in described Lorance as aggressive, ordering them to shoot indiscriminately at civilians in order to “make them afraid of us.” Golsteyn was set to go on trial next year for killing an unarmed Afghan man.  

Gallagher was charged with shooting at civilians for sport, including an Iraqi school girl and an elderly man. Witnesses testified that he stabbed a wounded teenage captive multiple times and posed with his mutilated corpse. Eventually convicted on a minor count of bringing discredit to the armed forces, Gallagher was demoted one step. Overriding internal military processes, the president restored his rank.

President Trump’s intervention evinces a callous disregard for the lives of victims and survivors, the rule of law, and the military justice system. For him, it was irrelevant that the service members violated clearly established laws of war. The fact that they did so while wearing an American uniform made them beyond reproach. “We train our boys to be killing machines, then prosecute them when they kill!” he lamented on Twitter in October.

Citing harms to the integrity of the military legal system and undue command influence, former military leaders expressed concern that the pardons may encourage more impunity for war crimes. They aren’t wrong, but they are very late.

This country has been on a war footing for more than 18 years, with no end in sight. Since U.S. troops were first stationed in Afghanistan and Iraq, there have been numerous reports of war crimes committed by service members and military contractors. A self-described “kill team” was accused of hunting Afghans for the thrill of it. There was systemic abuse of prisoners by the military and the CIA in Afghanistan and at Abu Ghraib. Contractors massacred Iraqi civilians in Fallujah and Haditha and Nisour Square.

American systems of civilian and military legal accountability for crimes and other abuses committed since 9/11 have not held up. Some of the troops accused of being involved in these horrific incidents were never charged or were acquitted. Others received a slap on the wrist. Virtually no senior level official has been held meaningfully accountable for systemic wrongs. The record of incomplete accountability for war crimes in Afghanistan prompted the International Criminal Court prosecutor to seek authorization for a war crimes investigation, an effort that the Trump administration tried to scuttle but is now on appeal — arguments took place in the Hague last week.

It may be tempting to view the Trump pardons as exceptional, yet another example of denigrating established norms. It is true that no other president has pardoned war crimes as Trump has done. It is also true that the record of accountability for abuses committed in the name of America’s fight against terrorism is abysmal.

But that poor accountability record started in the Bush administration and continued during the Obama administration. By looking forward as opposed to looking backward, this country failed to reckon with some of the most shameful episodes in its recent history. No senior U.S. government official has been held accountable for authorizing the CIA’s torture program. The military detention camp at Guantánamo Bay, where many survivors of CIA and military torture were imprisoned without charge, still holds 40 men.

Victims and survivors of illegal and abusive U.S. counterterrorism policies have found it exceedingly difficult to obtain justice in U.S. courts. Courts give excessive deference to executive branch justifications and secrecy in cases implicating national security. As a result, government officials have largely been shielded from liability. Courts have also abstained from deciding the legality of controversial counterterrorism policies such as the lethal strikes program abroad, which has targeted U.S. citizens with drones and killed many hundreds of civilians, at least.

Litigants challenging abuses committed on U.S. soil have hardly fared better. In the immediate aftermath of the September 11 attacks, the FBI detained hundreds of Arab and South Asian immigrant men and treated them as terrorism suspects because they were Muslim. The detainees were confined for months in maximum-security prisons and subjected to harsh treatment. In two separate cases challenging this detention policy, the Supreme Court ruled in favor of limiting accountability for federal officials. The Court even made it harder for victims to bring civil rights lawsuits and limited the ability of plaintiffs to obtain damages when federal officials violate their constitutional rights.

As avenues for redress for victims narrowed over the years, the military legal system offered some reassurance — however imperfect — that flagrant violations of the law would at least be investigated. Trump’s pardons are sabotaging even that avenue. We owe it to the victims of America’s abuses to start grappling with the tremendous harm that our counterterrorism policies have caused, and strive to repair this harm by holding perpetrators accountable.

The Death Penalty in 2019: A Year of Incredible Progress, Marred by Unconscionable Executions

America made big strides in 2019 on its path to dismantle the racist, unfair, and inhumane death penalty. Today, dramatically fewer states permit the death penalty than any time in the modern era, and the number of people on death row is at a 27-year low.

Bi-partisan supermajorities in the New Hampshire legislature abolished the death penalty in May, making it the 21st state to formally reject the punishment. Governor Gavin Newsom imposed a sweeping moratorium on executions in California, closing the death chamber in the state with the largest death row in the country and prohibiting the execution of 737 death row prisoners. Four states — California, Oregon, Colorado, and Pennsylvania — are now under official Governor-imposed moratoria, bringing the total number of states that wouldn’t carry out an execution to 25. Ten years ago, just 12 states prohibited executions. In other words, the number of states prohibiting executions has more than doubled in the last decade — a remarkable pace of change.

The shift in states rejecting the death penalty is mirrored by the movement in public opinion away from capital punishment. The Gallup Poll has tracked public opinion about the death penalty versus life imprisonment since 1985. This year, for the first time since Gallup began tracking public opinion on this issue, a majority of Americans (60 percent) prefer life imprisonment to the death penalty. 

Part of this shift is the clear proof that the government does not always get it right — innocent people have been sentenced to death, including the 166 people who have been formally exonerated. This year brought even more proof that the death penalty cannot shake its innocence problem. In 2019, two men, Charles Ray Finch and Clifford Willians Jr., both of whom were convicted and sentenced to death in 1976, were exonerated and released. Additionally, the Texas Court of Criminal Appeals granted an indefinite stay to Rodney Reed after a groundswell of public opposition clamored against his execution in light of powerful new evidence of his innocence. Other names like James Dailey, Richard Glossip, and Larry Swearingen also made headlines for credible innocence claims. For Swearingen, those news stories came too late

While a year of much progress, 2019 was also a year plagued by shameful state executions and the reckless attempt by the federal government to rush the executions of five men after a nearly two decade de facto moratorium. The Supreme Court allowed Alabama to execute Dominque Ray, a Black Muslim who was denied access to the spiritual advice of his Imam — a comfort guaranteed to Christian prisoners. Just weeks later, the Court stopped the execution of Patrick Murphy, a white Buddhist man, triggering concerns that race and religion played a role in the disparate outcomes. 

Other unconscionable executions from 2019 include: Georgia’s execution of Ray Cromartie without permitting a simple DNA test that could have fully exonerated him; Missouri’s execution of terminally ill Russell Bucklew in the face of evidence that his execution was likely to be torturous; and Tennessee’s execution of legally blind Lee Hall, Jr. The Supreme Court and the government of South Dakota alike failed Charles Rhines, allowing his execution despite evidence that his jurors sentenced him to death because of their anti-LGBT prejudice.    

This year was mixed in terms of the courts willingness to grapple with intractable problems of racial discrimination in the death penalty. The U.S. Supreme Court declined to hear cases from Oklahoma that challenged the systemic racial bias in the imposition of the death penalty, as well as from California, where the state supreme court had upheld the outrageous claim that a prosecutor’s decision to exclude jurors who did not oppose the OJ Simpson verdict was unrelated to race.

But the North Carolina Supreme Court granted review in six cases where the petitioners were yanked from death row, to life without parole, and back again — without due process or new trials — after they had proved racism infected their cases and the state legislature repealed its anti-discrimination law. And the U.S. Supreme Court issued a powerful decision in Flowers v. Mississippi, reaffirming its commitment to overturning cases in which prosecutors secured death sentences by systematically excluding qualified Black jurors from jury service. 

The modern death penalty has churned along for over 40 years since the Supreme Court permitted its reinstatement in Gregg v. Georgia, after finding it unconstitutionally biased and arbitrary in 1972. After more than 40 years, none of the major problems with the death penalty have been addressed. An outgrowth of lynching and slavery, the modern death penalty is still racially biased. Supposed to be reserved for the “worst of the worst” defendants, the death penalty is handed down more often for those with the worst lawyers — not the worst crimes. Geography, money, and race are still the best predictors of who will receive the death penalty. The good news from 2019 is that the country is accelerating in its efforts to finally break with the inhumane and unjust punishment.      

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

The Battle for Abortion Access is in the States

The 2020 Election Promises Record Turnout

ICE and CBP Are Secretly Tracking Us Using Stingrays. We’re Suing.

Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are using incredibly invasive surveillance technology as part of their continued efforts to target and tear apart communities across the country. They’re doing so in near-total secrecy and without any public accountability.

The ACLU has been asking ICE and CBP for basic information about this program for years, and now we’re asking a federal court to intervene.

In October 2019, Univision reported that an ICE deportation officer used a Stingray — a surveillance device that secretly mimics a cell-phone tower — to track down an immigrant suspected of “unlawful reentry” into the country. Little is publicly known about the use of Stingrays in ICE and CBP immigration enforcement operations, but we know they’ve used the technology repeatedly.

Stingrays, also known as cell-site simulators, track and locate cell phones — and the people using them. Pinging away as they are carted around in unmarked vehicles by law enforcement agencies, these devices ensnare not only a suspect’s cell phone, but innocent bystanders’ phones as well.

The use of powerful, surreptitious surveillance equipment is concerning in any context, and all the more so when done by ICE and CBP — agencies with a long history of abusive surveillance practices that include unlawfully tracking journalists and advocates and subjecting people to invasive searches of their electronic devices at the border. And when those agencies use these tracking technologies in secret, stonewalling our requests for information, we should all be concerned.

That’s why today the ACLU and the New York Civil Liberties Union have filed a lawsuit asking a federal court to order CBP and ICE to produce a range of records about their use, purchase, and oversight of Stingrays.

Transparency is a crucial first step to accountability. For more than two years, ICE has been “processing” our FOIA request for more information on its use of Stingrays. For its part, CBP has claimed that they were “unable to locate or identify any responsive records” — but that’s a completely implausible response. As we’ve cited multiple times, a December 2016 report from the House Committee on Oversight and Government Reform discloses that, as of 2016, CBP and ICE had spent a combined $13 million to purchase and operate at least 92 cell-site simulators.

The public has a right to know if and how often ICE and CBP are using Stingrays, which were originally intended for use by the military and intelligence agencies, for civil immigration enforcement operations. We also have a right to know if the agencies have taken any steps to protect the privacy of bystanders swept up by Stingrays, whether they inform people in immigration court proceedings when a Stingray has been used against them, and what limits, if any, exist on the use of this technology.

It is only with a better understanding of how Stingrays are being utilized within the Trump administration’s immigration enforcement operations that we help ensure people are being protected from unjustified surveillance and targeting.

Devin Nunes’ Cow Has a First Amendment Right to Call Rep. Nunes a ‘Treasonous Cowpoke’

You might think that Rep. Devin Nunes (R-Calif.), the Ranking Member of the House Intelligence Committee, would be too busy to file baseless defamation lawsuits against anonymous Twitter accounts. But you’d be wrong.

Last year, Rep. Nunes sued a number of people who were mean to him online, including the Twitter parody accounts Devin Nunes’ Mom and Devin Nunes’ Cow. Now, he’s trying to unmask the Cow by subpoenaing the author’s identity from a local law firm. The ACLU and Public Citizen have filed a friend-of-the-court brief urging the court to block Nunes’ subpoena because it violates the First Amendment right to anonymous speech.

From Sam Adams to Mark Twain, Americans throughout history have used pseudonyms to criticize public officials. People adopt pseudonyms for a number of different reasons, such as protecting privacy and preventing official retaliation. The Supreme Court has made clear that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of freedom of speech protected by the First Amendment.”

To protect anonymous speech, courts require defamation plaintiffs to satisfy a number of criteria before allowing them to use subpoenas and other discovery tools to unmask anonymous speakers. As particularly relevant here, a plaintiff must demonstrate that the defendant’s statements are plausibly defamatory (i.e., not protected opinion, parody, or political rhetoric) and produce evidence showing that the defendant’s statements were actually false. These requirements prevent plaintiffs from using meritless defamation claims as a vehicle to identify anonymous critics for purposes of retaliation, while allowing plaintiffs with legitimate claims to proceed. As we argue in our friend-of-the-court brief, these safeguards are not just good policy – they’re required by the First Amendment.

Rep. Nunes has utterly failed to satisfy these constitutional requirements. His defamation claims against the Cow are based on constitutionally protected statements of opinion and political rhetoric, such as the contention that Rep. Nunes is a “treasonous cowpoke” whose “boots are full of manure.” Rep. Nunes may not like these characterizations, but the First Amendment vigorously protects the right to use creative expressions of contempt when criticizing government officials. Even if Rep. Nunes had managed to identify a plausibly defamatory statement in his complaint, his subpoena would still fail because he has not submitted any evidence demonstrating that the allegedly defamatory statements about him are false.

Unfortunately, Rep. Nunes’ quest to unmask the Cow is no laughing matter. If he succeeds, government officials, large corporations, and other powerful figures will have a readymade playbook for abusing the judicial process to identify, punish, and silence their critics. Here’s hoping the court throws cold water on Rep. Nunes’ overheated claims. Maybe then he’ll finally learn to leave the Cow alone.

The 2020 Election Promises Record Turnout

Due to high levels of enthusiasm and interest, election experts are predicting record-setting turnout rates in the upcoming 2020 election. In anticipation of this historic election, the ACLU, volunteers, and supporters of voting rights across the country have been advocating for state legislatures to adopt policies that improve registration, the voting process, and ensure that more citizens are eligible to participate.

This year, no state made greater improvements to the registration and voting process than New York. State legislators made voting reforms a priority and passed legislation to enact early voting, create a pre-registration system for 16 and 17-year olds, provide an online voter registration system with greater accessibility, and allow portability of voter registration records. Furthermore, the state legislature took initial steps in passing state constitutional amendments that will enable New Yorkers to request an absentee ballot without an excuse and to register and vote on the same day. These common-sense reforms will help ensure that more people will be able to participate in future elections. 

In addition to the advancements made in New York, other states improved their registration and voting processes this year. Maine enacted automatic voter registration to ensure that more eligible citizens are registered to vote before Election Day. Nevada and New Mexico enacted laws to allow for same-day voter registration. Virginia enacted no-excuse early in-person voting – a policy the state legislature has an opportunity to expand upon next year by passing additional pro-voter legislation. Lastly, Illinois enacted legislation to ensure that pre-trial detainees in jails can cast their ballot during elections. ACLU People Power volunteers in Illinois began campaigning for this policy change back in 2017. 

We’re all better off when more Americans participate in our democracy. In order to ensure that more citizens are eligible to participate in the upcoming election, the ACLU advocates for state legislatures to remove draconian voter disenfranchisement laws. These laws have racist roots and continue to fuel racial disparities in voting by disproportionately affecting African Americans. This year, progress was made in Colorado and Nevada, where individuals now have the right to register and vote immediately upon release from incarceration.

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

ACLU works to ensure that all eligible citizens have the right to register to vote, cast their ballot, and have their ballot counted. We will continue to advocate for policies to help ensure that all eligible voters can have their voices heard in the 2020 election.    

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

The Battle for Abortion Access is in the States

The Battle for Abortion Access Is In the States.

This past year has been a critical one in the fight for reproductive freedom. For decades, politicians who want to interfere with people’s personal decisions about pregnancy have worked to push abortion care out of reach. They’ve quietly passed 483 state abortion restrictions since 2011 — including 59 new restrictions passed in 2019 alone. And after Trump was able to put two new justices who are hostile to abortion rights on the Supreme Court, politicians decided to go for broke. 

Since Justice Kavanaugh’s confirmation, seven states have passed laws banning abortion from the earliest days of pregnancy, all of which have now been blocked. The ACLU has challenged five of the new early bans, stopping these laws from going into effect in Alabama, Georgia, Kentucky, Missouri, and Ohio. Because of our work alongside our partners, abortion is still legal in all 50 states.

The threat to abortion access is real, and with such a volume of anti-abortion laws being passed, it can be hard to stay hopeful. But even as we saw extreme attacks throughout the South and Midwest, 2019 was also a banner year for historic wins.

In seven states, legislators passed eight bills to protect and expand access to abortion care. New York and Illinois passed Reproductive Health Acts, laws recognize the right to prevent, end, or continue a pregnancy as fundamental; treat abortion as health care rather than a crime; authorize nurse practitioners and other advance practice clinicians to provide abortion care; and remove outdated abortion restrictions from their books.

This victory was especially important in Illinois, which is surrounded by states that are hostile to abortion rights and already serves as a refuge for those who cannot obtain care — like in neighboring Missouri, where the last abortion clinic hangs by a thread.

Vermont and Rhode Island also acted to ensure that the right to make decisions regarding pregnancy will remain protected in their states, regardless of what the Supreme Court might do to Roe v. Wade. And Nevada, whose voters had already ratified abortion rights at the ballot in the 1990s, repealed a law that put people at risk of prosecution for ending a pregnancy on their own and updated its informed consent law to be aligned with the current standard of care.

In California, a coalition of student organizers from across the state led the campaign to pass a first-in-the-nation law to guarantee access to abortion pills on state college campuses and universities at student health centers. More than half of all students in University of California and California State Universities are low income, and students of color, low-income students, first-generation college students, and students who are already parents or supporting their families are particularly harmed by barriers to accessing comprehensive reproductive care. This move ensures that thousands of students can get timely and affordable access to abortion care on campus when they need it.

Maine enacted two new laws. The first allowed qualified, non-physician health care professionals to provide abortion care, increasing the number of publicly-accessible health centers where someone could get an in-clinic abortion procedure from 3 to up to 18 locations. The second guaranteed that abortion will be covered in public and private health care plans, ensuring that people don’t have to choose between paying their bills and getting the abortion care they need.

We haven’t seen such robust protections enacted since the early 1990s — the last time people feared that the Supreme Court might overturn Roe. Recognizing the unique moment in which we found ourselves, ACLU staff at national and state offices worked to help secure these wins and channel fear and anger into action, whether by providing testimony and expert analysis, collaborating with coalition partners and lawmakers to successfully fend off attacks, or mobilizing constituent support.

The threat to abortion rights has by no means passed and the work isn’t over. We know that states passed these abortion bans in the hopes that the Supreme Court will take up one of the cases challenging them and rule to overturn or further dismantle Roe. And we know that more states are lining up to join them by passing additional bans when their legislatures reconvene in January.

Abortion opponents never rest, but neither do we. We will continue to prepare for and combat the worst effects of the Trump era while working to build a world in which all people can make the reproductive decisions that are best for them and can obtain the care they need.

Part of an end of year wrap-up series. Read more:

Under Attack by Trump, Immigrant Justice is Advancing in the States

In 2019, We Fought Across the Country to Dismantle Mass Incarceration. We Won on Multiple Fronts.

In 2019, we fought across the country to dismantle mass incarceration. We won on multiple fronts.

This year, despite deep political divisions, one area of growing consensus from stakeholders on both sides of the aisle was the need to reform our country’s criminal legal system. 

Implementation of the First Step Act coincided with Democratic presidential candidates making criminal legal reform a cornerstone of their policy platforms — so much so that 14 of the original field of candidates supported a 50 percent decarceration goal. Here at the ACLU, we continued to deepen our commitment to challenging racism in the criminal legal system and getting people out of prison and jail.

The problem 

The numbers are astonishing. Since 1970, our incarcerated population has increased by 700 percent ­­— more than 2.1 million people are in jail and prison today. Extreme sentences keep more people in jail for longer periods of time, prosecutors have almost unlimited power, and nearly 700,000 people are in jail daily.

In 2019, our Campaign for Smart Justice alone engaged with almost 6,000 volunteers across the country and met directly with more than 2,000 state legislators on legislation aimed at challenging injustice in the criminal legal system. These efforts ultimately helped pass 75 bills in statehouses across the country, translating into thousands fewer people incarcerated.

Here are some highlights from the fight this year:

Sentencing Reform

Mandatory minimum sentences, “three strikes” enhancements, and restrictions on release are a piece of the twisted equation that holds millions of people in jail and prisons far longer than they should be. Scrapping these tough-on-crime laws is key to dismantling the architecture of mass incarceration. 

In Delaware, we played a leading role in an incredibly productive legislative session that saw 11 reform bills passed, including H.B. 5, which restored judges’ power to impose concurrent sentences and eliminated requirements that sentences run consecutively for most crimes. Lawmakers also passed S.B. 47, which eliminated racially discriminatory sentence enhancements for drug possession within 300 feet of schools and parks, and revised drug weight classifications to reflect usage patterns accurately. 

In Missouri, together with the Missouri Sentencing Coalition, we helped pass H.B. 192, which requires the parole board to evaluate those currently serving mandatory minimum sentences and decide if they should be released. After four years, this reform is projected to decrease the state’s prison population by 925 people.

In Oklahoma, alongside Oklahomans for Criminal Justice Reform, we succeeded in passing HB1269, a compromise measure aimed at making our 2016 drug and property reclassification ballot initiative retroactive. This law ultimately led to Governor Stitt approving the release of 527 people through commutation, the largest single-day commutation in U.S. history.

Prosecutorial Reform 

Voters are increasingly recognizing the power that prosecutors hold as gatekeepers of mass incarceration. To address the disproportionate power that prosecutors wield, this year in Connecticut, we led the effort to pass S.B. 880, a first-of-its-kind law that would create the most comprehensive transparency requirements for prosecutors anywhere in the country. Our campaign was led by formerly incarcerated people and focused on centering directly impacted populations.

S.B. 880 requires prosecutors’ offices to collect and share data on charges, diversionary programs, bail requests, plea deals, contact with victims, sentencing recommendations, demographic information, and more. 

In Louisiana, our work this session included passage of S.B. 146, a landmark bill to limit prosecutors’ practice of unjustly jailing sexual assault and domestic violence victims using material witness warrants. This victory built off of our lawsuit in 2017 challenging Orleans Parish District Attorney Leon Cannizzaro’s use of fraudulent subpoenas to jail witnesses of crimes.

This progress continued with passage of Oregon’s H.B. 3224, which requires every district attorney to create policies for the core functions of their office and make them available to the public.

Bail Reform

In 2019, we fought to end wealth-based incarceration and pass bail reform in more than 30 states. One highlight took place in Colorado, where together with partners we successfully advocated for H.B. 1225, which eliminates cash bail for petty and low-level offenses, and S.B. 91, which mandates quick release once bond is posted and eliminates fees assessed against the bond amount.

Re-Entry 

Incarceration often prevents people from accessing jobs, housing, and educational opportunities long after serving time in prison or jail.

In August of this year, the ACLU of Kentucky and its partners in the Smart on Crime coalition celebrated the passage of S.B. 57, a bill that expanded expungement opportunities for an important category of felony offenses.

The ACLU of New Mexico’s Smart Justice Campaign led the advocacy campaign with its partners in the New Mexico SAFE coalition for passage of a package of criminal legal reform bills, including legislation to “Ban the Box” and expand expungement opportunities for an array of offenses. 

The deeply entrenched systems that we confronted this year not only destroy lives; they ultimately do not make communities safer and increase the likelihood that people return to prison.

Dismantling the labyrinth of racist policies that make up the criminal legal system is no easy task, and much work remains to be done in 2020 and beyond. But the ACLU’s work to advance justice, expand freedom, and fight racism continues to grow, deepen, and win significant legislative victories throughout the country.

Three Ways the “Fairness for All Act” Doesn’t Protect LGBTQ People from Discrimination

On Friday, Congressman Chris Stewart (R-Utah) and several of his Republican colleagues in the House of Representatives introduced the so-called “Fairness for All Act.” The bill is being described by its supporters as a compromise that protects both LGBTQ people and religious liberty.

In reality, the bill facilitates the Trump administration’s ongoing efforts to give a greenlight to those who would turn LGBTQ people away from jobs, health care, housing, even taxpayer-funded programs, simply because of who they are. The bill also weakens some longstanding protections in federal and state laws for everyone, not just LGBTQ people.

Creates a Different Standard for Anti-LGBTQ Discrimination

By singling out LGBTQ people for lesser protections than other characteristics under federal law – such as race, ethnicity, and religion – the new legislation signals that LGBTQ people are less worthy of protection. It does this by providing religious organizations and service providers with the ability to discriminate based on sexual orientation and gender identity where they are explicitly prohibited under current federal law from discriminating based on other protected characteristics.

Grants a License to Discriminate in Child Welfare

One of the most dangerous aspects of the new legislation is its proposal to upend the child welfare system to allow for sweeping taxpayer-funded discrimination. It would do this through the creation of a new voucher system whose sole purpose is to allow religiously-affiliated child welfare providers – with whom the government contracts with to find stable, loving homes for children who are in state care – to discriminate against LGBTQ people or those, such as Jewish parents or single parents, who do not meet the agency’s religious criteria.

In places where the only providers work exclusively with conservative Christians, children of minority faiths – such as those who are Muslim or Jewish – or those who are LGBTQ would only be placed with parents who would be free to refuse to respect the identities of the children in their care.

Undermines Existing Protections from the Courts

Within the next seven months, the Supreme Court is poised to rule in a trio of cases concerning the existing rights of LGBTQ people under federal law. This new bill would undermine a potentially favorable ruling in those cases by authorizing discrimination in many contexts where it would be prohibited under existing law.

Proponents of this bill claim that it will somehow result in less litigation. They claim that by allowing discrimination by people of faith in many contexts, it will somehow end court fights over whether people of faith have a right to discriminate against LGBTQ people generally. But the opposite is true. The bill would lead to more litigation by providing less clarity about the balance Congress first struck between religious liberty and nondiscrimination protections a half century ago in the Civil Rights Act of 1964. The courts have spent the past 65 years interpreting that balance and implementing existing law and this proposal would upend that carefully developed body of law in the service of expanding discrimination against LGBTQ people.

And it would also exclude people seeking reproductive health care from protections against sex discrimination, undermining and stigmatizing access to care that is constitutionally protected.

We Aren’t Finished Until we are all Protected

We need legislation that provides LGBTQ people with comprehensive, nationwide nondiscrimination protections and closes gaps in our civil rights laws for everyone. Earlier this year, the House of Representatives did exactly that – on a bipartisan basis – when it passed the Equality Act. It is now time for the Senate to act.

The vast majority of Americans – from across the political spectrum and a wide range of religious beliefs and backgrounds – believe that it is both wrong to discriminate against LGBTQ people and that our nation’s civil rights laws should protect people from discrimination on the basis of sexual orientation and gender identity. LGBTQ people deserve nothing less. The Equality Act is the only bill which meets that standard.

Immigrants have been denied due process for years. In New England, that’s about to change.

One of the bedrock principles of our judicial system is that the government can’t just lock people up without showing why it’s necessary.

For noncitizens caught up in Trump’s deportation machine, though, that principle doesn’t always apply. But now because of our litigation in New England that’s about to change.

Gilberto Pereira Brito was detained in March by ICE – snatched from his wife and three children, all of whom are U.S. citizens – and brought before an immigration judge for a bond hearing. To keep him in detention, the government had to prove nothing, whereas Gilberto had to prove a negative: that he shouldn’t be in jail.

When someone is accused of a crime in the criminal justice system, the government bears the burden of proof when arguing that they should be jailed while they wait for trial. But for the last 20 years in immigration court the process is flipped, with detention being the default position that someone facing proceedings must argue their way out of. Tens of thousands of people like Gilberto have thus been either locked up for months or years, or forced to pay exorbitant bond fees to secure their release.

In June, the ACLU of Massachusetts and the ACLU of New Hampshire filed a class action lawsuit on behalf of Gilberto against the Department of Justice, arguing that forcing immigrants to bear the burden of proof in this way is unconstitutional. On November 27, a federal judge ruled in our favor, ordering the government to provide fair bond hearings for hundreds of people currently detained by ICE in New England. The ruling will also affect thousands more who are likely to be detained in the future by President Trump’s deportation machine. 

This victory represents the first time a judge has granted this type of relief for an entire class of people.

Chief Judge Patti Saris ordered several crucial remedies. First, the government must provide fair bond hearings for all future detainees, at which it must prove that someone is either a flight risk or a danger to society and that no conditions of release could mitigate any risk. Second, the government must also allow everyone who is still in detention to petition for new hearings. Finally, the government must take into account a person’s ability to pay when setting bond above $1,500, and must consider alternatives to detention, such as GPS monitoring.

At its core, this issue is about keeping families together. Nobody should have to spend months locked away from their loved ones, unable to provide for their partner and children or be near them while they face the prospect of a life-changing deportation. We secured the release of Gilberto and two other clients shortly after the case was filed. Now he’s back where he belongs, and thanks to his bravery, hundreds of others will soon have their fair shot at freedom as well.

Judge Saris’s ruling is limited to New England, but it paves the way for similar challenges nationwide. At a time when much of the immigration system is governed in secret by the cruel whims of racist White House officials, it’s more important than ever to hold agencies like DOJ, ICE, CBP and USCIS accountable for their unlawful practices.

The Court’s decision takes effect on December 13, and we’re gearing up for the next phase of the fight. To ensure that people in ICE detention get new, adequate bond hearings, civil rights lawyers are preparing to file hundreds of individual habeaspetitions on behalf of those whose rights have been systematically violated. It’s a monumental task, but when liberty is at stake, the ACLU doesn’t blink.

This is how we dismantle the Trump Administration’s unlawful deportation machine: step by step, piece by piece, to build a better future for immigrants and their families.

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