ACLU News

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.

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

This year was another of devastating attacks on immigrants’ rights by the Trump administration. However, in both red and blue states, we fought and won new measures that stymie Trump’s deportation machine. These local wins, though often overshadowed by the president’s xenophobia, are powerful. Here are some of the most surprising and significant of our 2019 immigrant justice victories in the states.

In Michigan, a former marine’s arrest prompts police reform

Grand Rapids, Michigan police kept veteran and U.S. citizen Jilmar Ramos-Gomez in immigration detention for 3 days — even though he was carrying his U.S. passport when he was arrested. The stunning case prompted a public outcry. Following advocacy by the ACLU of Michigan, the Grand Rapids Police Department issued a new policy prohibiting police stops and interrogations based solely on suspected violations of immigration law; and the Kent County Sheriff issued a new policy requiring a judicial warrant for all Immigration and Customs Enforcement detainees.

A landmark 60 Massachusetts localities have opted out of ICE collaboration

Years into an effort to end the entanglement of state and local police collaboration with ICE, the number of Massachusetts towns and counties opting out of ICE collaboration has reached 60. The latest: In November, the rural community of Greenfield — home to many undocumented farm workers —overrode the mayor’s veto to pass a Safe City ordinance. This policy stops police from asking about immigration status and prohibits giving ICE information about people in local custody. Shortly after the decisive victory, opponents tried to repeal the ordinance through a ballot initiative, but the ACLU of Massachusetts worked with a broad coalition on the ground to defeat it.

New Jersey makes statewide advances on immigrant justice

The New Jersey Attorney General issued a major directive: New Jersey’s counties can no longer participate in 287(g) agreements, which allow ICE to deputize local law enforcement as federal immigration officers. These agreements have a record of contributing to racial profiling and the harassment of immigrant communities. Additionally, the state legislature approved a 50 percent increase in funding for free legal counsel to people detained in New Jersey who face potential deportation. Finally, the governor signed a bill severely restricting the use of solitary confinement in state prisons and county jails, including those that detain immigrants.

Las Vegas and Nashville sheriffs end anti-immigrant agreements

The Las Vegas, Nevada police department withdrew from its 287(g) agreement with ICE and announced it will end its practice of honoring ICE detainers, prompted by the ACLU of Nevada and several groups. The sheriff in Nashville, Tennessee ended a rent-a-bed program that allowed ICE to use the local jail for immigration detention.

New York and Oregon make driver’s licenses accessible to all

Across the country, hundreds of thousands of undocumented people struggle to get to work and take their children to school because they don’t have access to driver’s licenses. Driving without a license can lead to their arrest, detention, and deportation. Expanding access to driver’s licenses to all eligible individuals regardless of immigration status is good for public safety because it ensures more people on our roads are tested, trained, and qualified. New York passed a driver’s licenses for all bill in June and Oregon did so in July. Now there are a total of 14 states making driver’s licenses eligible to residents regardless of immigration status, plus D.C. and Puerto Rico.

Nebraska school districts agree to anti-discrimination measures

Following an ACLU of Nebraska report on barriers to immigrant and refugee kids registering and enrolling in school, major school districts in Omaha, Norfolk, and Crete agreed to make changes. The state’s Department of Education is beginning to develop new regulations in response to the report.

Utah, Colorado, and New York pass laws to protect non-citizens from deportation

This spring, Utah became one of the few Republican-led states to pass a so-called 364-day law. Colorado and New York passed similar bills. These measures reduce the maximum jail sentence for misdemeanor offenses by one day, from 365 to 364 days, protecting immigrants from serious consequences imposed by federal immigration law that kick in at 365 days or more — even if the person’s actual sentence is just a few days. Those consequences include detention, deportation, and loss of opportunity for individuals to adjust their immigration status. These reform measures ensure that convictions for minor offenses like shoplifting don’t carry devastating consequences.

There are a lot more wins, including major reform legislation in California, Illinois, and Washington.

The threat to immigrants’ rights is far from over. Still, we can expect that states will continue to take action as public opinion evolves on immigrants’ rights. Six in 10 Americans now oppose the Trump administration’s agenda of deporting immigrants without lawful status. In 2019, state and local officials got the message: Our communities must and will fight back.  

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

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

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

“Look at the camera.”

“I want to opt-out.”

“Look at the camera.”

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

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

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

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

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

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

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

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

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

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

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

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

Senators Reveal Their Plans to Protect Consumer Privacy Online

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

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

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

Preserving State-Level Privacy Protections

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

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

Strong Enforcement Mechanisms

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

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

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

Preventing Online Discrimination

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

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

Clear and Strong Data Usage Rules

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

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

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

Congress Must Act to Protect the Right to Vote

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

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

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

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

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

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

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

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

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

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

Reducing HIV Transmission Requires Decriminalizing Sex Work

Transgender people are criminalized for our bodies.

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

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

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

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

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

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

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

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

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

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

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

“If I Could Just Look at Her”

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

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

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

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

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

This post first appeared on Buzzfeed News.

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

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

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

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

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

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

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

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

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

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

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

We’re Grateful for the Constitution

Saying thanks for recent wins from ACLU lawyers

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

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

Immigrants’ Rights

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

Reproductive Freedom

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

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

Racial Justice

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

Transgender Justice

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

Voting Rights

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

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

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

The First Amendment …

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

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

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

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

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

And the Fourth

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

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

Criminal Justice Reform

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

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

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

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

Protecting Prisoners’ Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Julia had just turned 18.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We’re in court to secure his freedom.

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

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

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

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

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

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

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

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

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

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

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

Congress Just Temporarily Extended the Government’s Spying Powers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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