ACLU News

Your Friendly Neighborhood Bank: The Post Office

One in four Americans are unbanked or underbanked. This is in part because because banks across the country are closing branches, or penalizing those who don’t have large savings. This means that 64 million Americans — disproportionately Black and Brown people — can’t easily access basic financial services and are forced to pay thousands a year in fees for alternatives.

But one solution to this disparity is within our reach, it’s actually just down the street from you: the post office.

The U.S. Postal Service has the infrastructure to provide basic financial services at all of its branches. With an office in every ZIP code nationwide and trust within the community, banking at the most accessible institution in America could create a public option needed to put millions of families in greater control of their finances.

Joining us on At Liberty this week to talk about why postal banking is key to closing the racial wealth gap is Rakim Brooks, a senior campaign strategist at the ACLU who is managing our new Systemic Equality campaign.

https://soundcloud.com/aclu/your-friendly-neighborhood-bank-the-post-office

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The Oversight Board’s Trump Decision Highlights Problems with Facebook’s Practices

The ACLU condemns the bald-faced lies that President Trump repeatedly propounded after decisively losing the Nov. 4 election, and we called for his impeachment for his concerted effort to subvert our democratic process, leading to the Jan. 6 assault on the U.S. Capitol. We also recognize that Facebook is a private entity with its own First Amendment rights to control the content it publishes. But Facebook’s decision to ban Trump nonetheless illustrates serious shortcomings in its content-related decision making — as its own Oversight Board (OB) properly declared yesterday in reviewing the decision. Facebook exercises quasi-monopoly power over a critical forum in our marketplace of ideas, and for many of the same reasons that we would be suspicious of a central government authority controlling what can and cannot be said, we have concerns with Facebook exercising such unchecked power.

The OB ruled that Facebook’s initial decision to suspend former President Trump’s account for 24 hours on Jan. 6, 2021, after the attack on the Capitol, was proper, but that its subsequent decision to suspend his account indefinitely — a sanction that is not mentioned in Facebook’s policies — was inappropriate. The board put the decision about a permanent ban back in Facebook’s hands, to be made in the next six months according to the rules the company applies to other users.

As pernicious as Trump’s speech was, the decisions by Facebook and other social media companies to remove Trump from their platforms highlight the immense power these corporations wield over our collective ability to speak online. For the foreseeable future, Facebook, Twitter, and a handful of other corporations will make some of the most consequential decisions affecting free expression. They present themselves as platforms for free speech rather than edited or curated newspapers. But historically they have failed to apply their own rules consistently, equitably, and transparently, or to adhere to basic notions of fair process in how they exercise the awesome power to decide what gets published on, and who can access, their forums.

Perfectly consistent content moderation is impossible in light of the scale at which these platforms operate. But Facebook’s failure to abide by basic principles of fairness and transparency are unacceptable given the influence they exert over our national debate. Facebook and similar platforms should err on the side of free expression, not censorship, while also offering users direct control over the content they see. Facebook effectively determines the boundaries of political speech for billions of users, even as it remains beholden to its bottom line, not the public interest.

In an attempt to add some accountability and transparency, Facebook created an Oversight Board to help it review hard questions regarding content moderation. But the company still holds too much unaccountable power over the process. The OB rightly highlighted many concerns with Facebook policies and practices that we share, but the decision also leaves crucial questions unanswered. Below we break down our take on this issue and the board’s decision.

What does the ACLU think of the Oversight Board’s decision?

Facebook’s initial decision to suspend Trump’s account for a defined and limited time, and the OB’s decision to uphold it, is understandable in light of the events of Jan. 6 and Trump’s part in spreading outright lies about the electoral process in the weeks and days leading up to those events. But the rule Facebook claimed to apply here — its community standard prohibiting “praise and support of dangerous individuals and organizations” — is too vague, and its application in this case offers little clarity. That standard, which Facebook explains is meant “to prevent and disrupt real-world harm,” bans those who “proclaim a violent mission or are engaged in violence” from the platform, including those engaged in “terrorist activity,” “organized hate,” and “organized violence or criminal activity.” It also bans content that “expresses support or praise for [the people and organizations] involved in these activities.”

That’s a disturbingly nebulous and far-reaching standard. Indeed, it’s worth keeping in mind that on Jan. 6, Facebook also banned “calls for protests – even peaceful ones — if they violate the curfew in D.C.” It’s not hard to imagine Facebook’s rule against “organized … criminal activity” getting misapplied to any plans for protests after curfews, whether in Kenosha, Wisconsin last summer or Elizabeth City, North Carolina today.

In addition, as the board’s lengthy opinion makes clear, when assessing the potential for speech to cause “real-world harm,” context matters. Words typed on a screen are often not enough to stoke “real-world harm” on their own, nor do they suffice to assess likely impact, yet that is often all that Facebook relies upon. In this week’s decision, the board properly calls on Facebook to consider context when assessing “issues of causality and the probability and imminence of harm” for posts by politicians and other “influential users.” We call on Facebook to consider context for all users.

As the board also properly noted, the penalty of indefinite suspension raises concerns. Unlike removing content, suspending an account for a limited period of time, or removing an account entirely, “indefinite suspension” appears nowhere in Facebook’s own rules. Facebook needs to make clear to users when, how, and according to what standards the company will indefinitely suspend accounts — particularly given that such a blunt tool removes a speaker from the platform entirely rather than focusing on specific content that violates policies in a more tailored way. Again, we condemn the pernicious, baseless, and demonstrably false statements Trump often made, but the issue here is bigger than Donald Trump.

Should there be special rules for political figures?

The ACLU believes that political speech deserves the greatest protection to ensure the functioning of our democratic system. We have parted company with other advocacy organizations that have been more willing to limit the speech of political leaders on social media platforms. The ACLU believes that the speech of former President Trump should be presumed important to the functioning of our democratic system given his prior role in government. Most of what politicians and political leaders say is, by definition, newsworthy, and can at times have legal or political consequences. While their words may have greater capacity for harm, there is also a greater public interest in having access to their speech. For example, courts considered President Trump’s tweets as evidence in several challenges to his official acts, including the transgender military ban and the Muslim ban. Given the importance of protecting political speech by political figures, Facebook’s primary recourse should be striking discrete statements by President Trump that run afoul of its standards, rather than imposing a lifetime, outright ban.

At a minimum, statements of political leaders relate to government transparency. We agree with the OB that for transparency and accountability purposes, if Facebook decides to censor a public official, the company should have a consistent plan in place for preserving the offending speech for transparency, research, and historical record purposes. In addition, Facebook should publicly explain its rules for removing posts and accounts of political figures. And its rules, as the OB recommended, must take into account the needs of human rights advocates, researchers, journalists, and others to access rule-violating content.

What else did we learn about Facebook’s relationship with the Oversight Board in this decision?

This week’s decision also highlights a number of the problems with Facebook’s approach to the Oversight Board. The board is only as powerful as Facebook lets it be, and that is problematic. For example, as the board’s decision makes clear, Facebook refused even to answer several questions the OB found relevant to its review. These included “questions about how Facebook’s news feed and other features impacted the visibility of Mr. Trump’s content,” “whether Facebook has researched, or plans to research, those design decisions in relation to the events of Jan. 6, 2021,” “questions related to the suspension of other political figures and removal of other content,” and “whether Facebook had been contacted by political officeholders or their staff about the suspension of Mr. Trump’s accounts.” Facebook should answer these questions.

In addition, Facebook denies users whose accounts it has suspended any opportunity to appeal to the board. That means that if Facebook permanently bans Trump’s account, the OB will have no say over the decision — unless, of course, Facebook itself asks for the OB’s opinion a second time. Facebook should enable users who are subjected to Facebook’s bluntest tools the option to appeal to the Oversight Board.

The OB is purportedly an effort to ensure that content moderation decisions are accountable. We approve of that impulse. We don’t want Mark Zuckerberg making these important decisions alone. The process and transparency the OB has the potential to provide are important, but this week’s decision makes clear that many roadblocks still stand in the way of fulfilling that goal.

Will this decision have an impact on regular Facebook users?

Not really — and that suggests a problem with the selection process of cases for the board. High-profile decisions like this might be interesting, but they’re not the ones that actually matter for most users, including, importantly, those who don’t have other outlets to speak online — as President Trump does. Account suspensions and deactivations can be devastating for such users.

The board’s decision doesn’t tell regular users looking at Facebook’s standards — including the “praise” standard applied here, what those standards mean for them. And regular users whose accounts are suspended don’t have the opportunity to appeal to the Oversight Board. The precedent set by this decision is very limited. The board repeats throughout that its ruling is fact-bound. In other words, it doesn’t address important questions about regular people’s use of Facebook.

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Cast An Informed Vote for Philadelphia District Attorney on May 18

In the election for Philadelphia District Attorney, make sure you’re informed about a name that isn’t on the ballot —- the Philadelphia Fraternal Order of Police.

The Philadelphia FOP supports policies that increase mass incarceration and violate civil rights, and they oppose policies that would increase transparency and accountability.

Philadelphians can choose transparency and fairness over mass incarceration.

Whoever you vote for in the District Attorney election, be sure to cast an informed vote. Vote on May 18.

Voting in Person

Find your voting location here.

Voting by Mail

You can drop off your ballot in a ballot drop box until 8 p.m. on Election Day, Tuesday, May 18th. More information on ballot drop boxes can be found here.

You can also drop off your ballot at your local Election Office by 8pm on Election Day, Tuesday, May 18th.

You can find additional vote by mail information here.

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Trump’s Secret Rules for Drone Strikes and Presidents’ Unchecked License to Kill

This article was first published on Just Security.

On Friday night, in response to transparency lawsuits filed by the ACLU and the New York Times, the Biden administration released a redacted version of President Trump’s rules for the use of lethal force against terrorism suspects abroad. During the Trump administration, the Times and other media reported that the Trump rules weakened even the loose policy safeguards put in place by the Obama administration in 2013, which were also released in response to litigation in 2016. Despite redactions, the newly-revealed Trump rules show how far that administration went in casting aside any meaningful constraint on the United States’ use of lethal force abroad without meaningful oversight by Congress or the judiciary, and with devastating consequences for people’s lives.

Trump’s rules are in many ways an unsurprising extension of U.S. government logic and policy justifications for killing couched in legal language. Over now four administrations, the U.S. government has sought to justify an unlawful lethal strikes program that has exacted an appalling toll on Muslim, Brown, and Black civilians in different parts of the world. Now, almost 20 years into the U.S. government’s war-based approach, it’s clear that U.S. legal or policy justifications for this program do not actually demonstrate adherence to domestic or international law, they fundamentally undermine it.

Here are initial takeaways:

Message to Agencies: Lethal Force is Core to U.S. Strategy and Rules and Safeguards May Easily Be Cast Aside

From the outset, Trump’s Principles, Standards, and Procedures for U.S. Direct Action Against Terrorist Targets (PSP) is striking for the bellicose and nationalistic tone it sets and the message it sends to agencies involved in lethal operations. It starts by emphasizing flexibility to take “direct action”—a euphemism for lethal force as well as capture operations—as “a critical component” of U.S. counterterrorism strategy. It signals that heads of agencies have primary responsibility for proposing and taking these actions, and the president can swiftly give them more flexibility if they ask for it. It refers to “core principles” of the law of armed conflict, but in doing so, further transforms these legal rules that give states greater license to kill in the exceptional context of war into a blur of policy and preference that may, at the discretion of the president, apply outside of any recognizable battlefield. This is not new in assertions of unilateral authority by American presidents to kill in the last 20 years, but where President Obama sought to signal policy constraint, regulation, and layers of internal executive branch oversight for his killing rules, Trump explicitly signaled that the gloves were off to “further U.S. national security interests.”

To understand the Trump rules, it helps to understand what they changed, with the caveat that at least some of the redactions in the PSP likely hide important information, which could include further articulations of legal and policy positions, the role of agencies like the CIA, and procedures governing foreign governments’ involvement (or not) in lethal or capture operations.

By the end of the Obama administration, the U.S. government had established a policy and bureaucracy framework for use of lethal force against terrorism suspects that applied to “areas outside of active hostilities.” The Obama administration did not define “areas outside of active hostilities,” a term that has no basis in domestic or international law, but it was commonly understood to mean locations outside of recognized battlefields, where the laws of war clearly apply. Afghanistan, Iraq, and Syria were (and are) armed conflict zones, and the U.S. government asserted it would adhere to its law-of-war obligations in those conflicts. The Obama-era rules were understood to apply to the rest of the world, and more specifically, at various points, in Pakistan, Yemen, Somalia, and Libya.

For those “areas outside of active hostilities,” the Obama administration cobbled together a set of made-up rules that cherry-picked from a variety of legal frameworks that are intended to safeguard individual life and international peace and security—the laws of war, human rights law, and law governing states’ use of extraterritorial force in self-defense. In doing so, as rights groups, United Nations experts, and scholars have explained, the U.S. government has invoked war-based rules to permit killing that under international and domestic law is prohibited and constitutes extrajudicial execution. Even as it sought to justify unilateral executive use of lethal force, the Obama framework tried to impose policy limits based loosely on a combination of proxies for geographic scope, who could be killed, and with what precautions.

Perhaps most significantly, the Trump rules further scrambled—and surely created greater uncertainty about—what legal constraints applied where, and to whom. Unlike the Obama rules, the public PSP contains no mention of “areas outside of active hostilities.” The PSP doesn’t even bother referring to “affiliate forces” of ISIS or Al Qaeda in identifying potential targets of operations—rather, it refers to their purported networks “across the globe.” As a result, the Trump killing rules applied to all parts of the world outside the United States, including countries in which there is recognized armed conflict. With this sweeping application, the Trump rules may have destabilized the entire 20-year-old cobbled-together U.S. lethal force regime—and possibly set it up to further fail as a matter of law and practice. Like the Obama rules, the Trump rules authorized lethal strikes in countries where Congress has not authorized force and human rights law strictly prohibits extrajudicial killing. Unlike the Obama rules, the PSP applied to recognized conflicts, likely requiring commanders to obtain permission to apply humanitarian law, with its more permissive killing rules—or perhaps even act under a mix of the made-up rules.

The first Trump “Policy Standard” (Section 2A) authorizes use of force against any “terrorist group” against which the United States may “lawfully” use force and that is “engaged in ongoing hostilities” against the United States or pose a “continuing imminent threat.” This standard appears to be a loose articulation of authority to use force against a broad, unidentified range of unspecified groups. A later standard (Section 2G) reinforces the breadth of authority Trump claimed, asserting that the United States could use lethal force if “reasonably necessary to U.S. efforts to address the threat posed by” a terrorist group.

In other words, where international law generally only countenances use of force in the territory of another state in response to an “armed attack,” and the Obama administration stretched that concept to a “continuing and imminent threat,” the Trump rules further departed from law by allowing force in response to a mere “threat.” In doing so and despite the lip service the PSP pays to the requirements of international law, Trump could easily cast aside the fundamental U.N. Charter rules that are a cornerstone of international law and the international community’s means of protecting global peace and security.

The Obama rules also instructed the U.S. lethal force bureaucracy to account for other related important policy considerations in deciding to use lethal force: the sovereignty of states in whose territory strikes are carried out; considerations of consent by those states; whether a state was “unwilling or unable” to address threats. In this way, smart administration lawyers sought to advance technical arguments navigating the requirements of international humanitarian and human rights law and the U.N. Charter even as they fundamentally deviated from them. Smart scholars debated in these pages and elsewhere the efficacy and legality of the Obama frameworks and U.S. rules.

Trump easily did away with virtually all the policy constraints and scholarly debates. His rules glance at law, and lay bare how easily a president thinks it may be set aside in service of vague “national security interests.” It’s hard not to see these rules as a license to kill.

Measures to Protect Civilians and Prioritize Capture are Malleable

The Obama rules included a few measures to protect life and serve intelligence-gathering goals, such as a requirement of near certainty that no civilians would be harmed in the locations where the policy applied; a requirement of near certainty that a target actually was present at a strike location; and, a preference for capture instead of killing. These too, were easily set aside.

The Obama administration required “near certainty” that “non-combatants” would not be injured or killed, but nevertheless permitted exceptions to that (and other) policy standards (see Section 5B of the Obama Rules). The Trump rules repeat the near-certainty language (Section 2C) but do not include the requirement in a redacted Annex (Annex A) that sets out the minimal operating principles by which agencies must abide, again sending the signal that civilian life may be devalued. In the body of the PSP, agencies are told only to ensure “near certainty” with “reasonably available information and means of verification.” And as Charlie Savage reports, Biden administration officials discovered that Trump officials used the Trump rules’ latitude to kill men in some countries under a lower standard: “While it kept that [near certainty] rule for women and children, it permitted a lower standard of merely ‘reasonable certainty’ when it came to civilian adult men.”

The New York Times had reported that the Trump rules lowered the requirement of “near certainty” that a target would be present at a strike location to “reasonable certainty.” It appears that change was made in the relevant section of the Trump rules (Section 2B) but the Biden administration inexplicably has chosen to redact it, and it’s unclear how this redaction is at all justifiable.

The preference the Obama administration aimed to set for capture over killing is similarly watered down to the point of potential meaninglessness. The Obama rules required agencies to assess if capture would be feasible in their “operational plans”; the Trump rules express that capture is “general preferred,” and to be based on an extraordinarily low, discretionary, and vague standard of whether capture is “practical based on a risk analysis.” (Of note, the Obama rules asserted that in the event of capture, “in no event will additional detainees” be brought to Guantanamo; the PSP explicitly posits military commissions—currently only held at Guantanamo—as an option.)

Open-Ended Authorization to Kill

In short, the Trump rules served as open-ended authorization for the United States to kill virtually anyone it designates as a terrorist threat, anywhere in the world, without reference to the laws prohibiting extrajudicial killing under human rights law. The Trump rules may seem more extreme but in core ways they merely continue an unlawful U.S. extrajudicial killing program that is now a cornerstone of the “forever wars” that President Biden has pledged to end.

On his first day in office, President Biden suspended the Trump rules, and his administration then reportedly initiated a review and consideration of new policies, which was initially to take 60 days. It could now extend to 6 months, according to the New York Times. Meanwhile, although the president has announced the withdrawal of troops from Afghanistan by early September, Pentagon and other spokespersons have been careful to carve out the authority to launch remote lethal strikes regardless of the end of that conflict. This is a dangerous signal that the administration could be poised to repeat bad and harmful mistakes.

The U.S. lethal strikes program began under Bush and escalated under Obama and then Trump. The Obama administration prioritized flexibility and threat prevention, entrenching an architecture for a potentially global killing program with little transparency, no accountability, no meaningful public assessment of human and strategic costs and consequences, and a failure to properly consider the precedent it was setting. President Trump took what President Obama left, and did not have to do much to cast policy restraint aside. After all, just over a year ago, the Trump administration unilaterally took this country to the brink of conflict with Iran with the killing of Iranian General Qassem Soleimani. That’s in addition to his administration’s escalation of lethal strikes—and civilian deaths—in Yemen and Somalia.

Today, this country faces new domestic and global challenges in the form of climate change, the pandemic, mass displacement and migration—too often caused by conflicts our country has helped to unleash or sustain. President Biden has the opportunity to set a rights-promoting approach to foreign policy, including especially in the majority-Muslim countries in which people are devastated by U.S. lethal force without even acknowledgement or any accountability. If President Biden does not withdraw and disavow this country’s long-standing war-based approach to national security, his legacy could undermine our collective human security. The president can and should set the country on a new and necessary path.

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A Federal Appeals Court Will Decide if Trans Students Can Continue to Play School Sports

This year, more than 30 states introduced laws banning trans students from participating in school sports. This is part of an ongoing assault on trans youth — particularly transgender girls — that has been brewing for years. In 2020, Idaho became the first state to pass such a law and the ACLU quickly filed suit along with Legal Voice and Cooley LLP. Yesterday, my colleague Chase Strangio argued in the first case about a law banning trans women and girls from sports to reach an appeals court. The decision in this case will be pivotal as other states adopt similarly discriminatory laws.

Shortly after the law in Idaho passed, runner Lindsay Hecox, a student at Boise State University, and Jane Doe, a cisgender high school athlete, challenged Idaho’s law in federal court. Last August, a federal judge barred the state from enforcing the law, ruling that the law discriminates against Lindsay based on her sex and transgender status and against both Lindsay and Jane because they are women. The judge observed that women athletes like Lindsay, who have been on hormone therapy for a year, have no competitive advantage over other women, so it is discrimination to treat them differently from other women. The NCAA, the International Olympic Committee, and World Athletics all recognize the same reality and allow women who are transgender to compete in women’s events.

The court’s injunction allowed Lindsay to try out for the Boise State women’s cross country team. She didn’t make the team, but that’s the way athletics are supposed to work — she was simply asking to be evaluated based on her athletic abilities, not pre-judgments by a profoundly misguided legislature. Yesterday in the U.S. Court of Appeals for the Ninth Circuit, the ACLU defended that right.

While Idaho was the first state to pass a ban on trans athletes, it was not the last. In 2021, the national ACLU and our state affiliate offices have fought sports bans in more than 30 state legislatures so far, with those bans becoming law in Alabama, Arkansas, Mississippi, Tennessee, and West Virginia. The Florida legislature passed its version of a ban just last week. We are preparing court challenges to several of these new laws as well, building on the decision in Lindsay Hecox’s case.

ACLU/Joshua Roper

Lindsay isn’t the only trans athlete to have had recent success in court. Andraya Yearwood and Terry Miller are two athletes who ran track in high school in Connecticut. Several cisgender high school girls sued the state athletic conference for allowing Andraya and Terry, who are transgender, to compete on the girls’ team. They argued that it is illegal to protect trans people from discrimination — an extreme claim that, if accepted by the courts, would have prevented states and schools from taking action to protect trans students from discrimination. Andraya and Terry joined in the lawsuit so that they could help the athletic conference defend its trans-inclusive policy. Just last week, a federal judge dismissed the cisgender girls’ lawsuit, leaving Connecticut’s affirming sports policy intact. It was a great moment for inclusive education.

This year’s fight is just beginning, but we’ve seen these types of cruel and misguided attacks before. The organizations leading these coordinated attacks on trans student athletes are the same ones that pushed false myths about trans people in restrooms a few years ago. Just as those legislative efforts were not actually about restrooms, these laws are not about sports. They are about excluding transgender people from public life and trying to prevent people from being transgender. They are about creating “solutions” to “problems” that do not exist while harming some of the most marginalized youth in the country.

No matter how long it takes, the ACLU will work alongside trans people like Lindsay, Andraya, and Terry to ensure that everyone gets an equal opportunity to participate in all aspects of public life, including sports.

What you can do:Support Trans AthletesAdd your name

To Address Systemic Racism, We Must Dismantle Housing Discrimination and Segregation

Equal access to housing is a civil right, but systemic racism within our housing institutions has long kept communities of color from accessing fair housing opportunities. The Fair Housing Act with its Affirmatively Furthering Fair Housing provision (AFFH) is a critical piece of legislation that aims to address our country’s legacy of systemic racism, by dismantling housing discrimination and segregation. But during Trump’s presidency, they came under attack. Now, the Biden administration must work to restore important housing protections to ensure all people have equal access to fair housing.

The Fair Housing Act of 1968 was a key part of Congress’ response to a report commissioned by President Johnson to investigate civil unrest in Black and Brown communities between 1965 and 1967. The Kerner Commission’s report warned Congress that “America is dividing into two societies, Black and White, separate and unequal.” It also named residential segregation, which relegated Black communities to crowded and under-resourced urban areas, as one of the primary manifestations of this inequality. After the assassination of Martin Luther King, Jr. and in response to the report’s findings, Congress passed the Fair Housing Act in 1968 in an effort to curtail widespread segregation and discrimination in housing and protect marginalized communities from discrimination when purchasing or renting a home.

Congress also used the Fair Housing Act to charge the Department of Housing and Urban Development (HUD) to use its programs to “affirmatively further” fair housing. With this provision, Congress intended for HUD to take active steps to dismantle housing segregation and to expand access to fair housing opportunities for everyone. While this obligation has been in the Fair Housing Act since 1968, there was no road map for jurisdictions to implement this requirement until HUD adopted the 2015 Affirmatively Furthering Fair Housing regulation (AFFH). This 2015 rule established a community centered process for analyzing patterns and causes of segregation and neighborhood disparities that could serve as the basis for local jurisdictions to establish actionable steps for achieving fair housing goals.

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

While the 2015 AFFH rule made the affirmatively furthering fair housing requirements of the Fair Housing Act enforceable, in July 2020, HUD rescinded the 2015 AFFH regulation and replaced it with the “Preserving Community and Neighborhood Choice” rule. This regressive rule eliminated the requirement for jurisdictions to take active steps to end segregation and allows municipalities to decide for themselves whether they are “affirmatively furthering fair housing.” This removes any accountability and permits complacency among jurisdictions that have failed to take proactive steps to ensure fair housing opportunities are open to all.

We’re urging the Biden Administration to withdraw the Trump-era replacement for the AFFH rule and reinstate the 2015 AFFH regulation, which would require local jurisdictions to take active steps to end housing segregation and address systemic racism in housing. This includes requiring jurisdictions to:

  • promote integration and ensure all neighborhoods are well-resourced and residents have equal access to opportunities;
  • consider data analysis or public input on local patterns of segregation and integration;
  • address disparities in access to community resources and amenities; and
  • address discrimination and systemic racism.

Reinstating the 2015 AFFH regulation would mean that students now living in segregated, low income communities could have an opportunity to live in a neighborhood with better funded schools, families living in communities where they are more likely to be exposed to environmental toxins would have opportunities to live in healthier neighborhoods, and people living in communities that are food deserts would now have an opportunity to live in a neighborhood with access to grocery stores that sell fresh foods.

Leaving the “Preserving Community and Neighborhood Choice” rule intact is a tacit endorsement by the Biden administration, and a signal that fair housing isn’t a priority. The administration must take action now to reinstate the 2015 AFFH regulation. This will combat housing segregation and provide families of color with equal access to safe and stable housing, thus advancing systemic equality across our nation.

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The Supreme Court Considers a Cheerleader’s Off Campus Free Speech Rights

This week, the Supreme Court heard arguments in a case that has huge implications for the free speech rights of students. The case involves then 14-year-old Brandi Levy, a cheerleader at Mahanoy Area High School in Pennsylvania, and her post on the social media platform Snapchat. One of her cheerleading coaches saw the post, which used an expletive, and suspended her from the team for a year — even though Brandi had posted on a weekend, while off of school property.

Brandi and her family sued the school for violating her First Amendment rights. Brandi prevailed in two lower federal court rulings but now, the Supreme Court has the opportunity to uphold the win or rule for the school. On Wednesday, ACLU Legal Director David Cole argued before the court on Brandi’s behalf.

“[The case] really has the potential to be a landmark case for student speech rights,” Vera Eidelman, staff attorney at the ACLU’s Speech, Privacy and Technology project told us on At Liberty. Eidelman is working on Brandi’s case with the ACLU of Pennsylvania.

In addition to Eidelman, Brandi and her father, Larry joined us on this week’s episode to share their story.

https://soundcloud.com/aclu/supreme-court-considers-a-cheerleaders-free-speech

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Biden Must Be Bolder on Immigration. The Lives of Millions Depend on It.

One hundred days ago, President Joe Biden took the helm of a decimated immigration system, which candidate Biden had promised to restore. The lives and safety of millions of people, and the lawfulness and moral standing of our country, depend on the president’s ability to deliver on that promise. But 100 days later, his record is decidedly mixed.

The Trump administration exploited and abused executive powers in our immigration laws to an unprecedented degree, aiming to harm Black and Brown communities. He deliberately destroyed the United States’ ability to effectively process asylum claims and admit people with legitimate claims to protection — people who we’ve been proud to welcome as future Americans under U.S. law. The impact of his ruthless actions is still being felt along the border and in communities across the country and the globe.

In the first 100 days of his administration, President Biden has often hit the right notes and his administration has begun to unwind some of the most noxious aspects of Trump’s legacy. But on far too many issues, the Biden administration has continued or only temporarily paused Trump policies — at the risk of perpetuating a new, Trumpian normal, with devastating human costs.

This must change.

Now is the time for Biden to use his executive authority and his presidential bully pulpit to do what voters elected him to do: reverse Trump’s anti-immigrant agenda, and do everything within his power to bring humanity and fairness to our immigration system.

At the 100-day mark, Biden’s to-do list is still long. Here is a status report on the progress that’s been made, the promises that have been broken, and the work still left to do on some of the most urgent immigration priorities.

REBUILDING ASYLUM AND HUMANE BORDER POLICIES

The Trump administration made it nearly impossible for anyone to receive asylum, no matter how strong their claim, even though this fundamentally important right to protection from persecution is guaranteed in federal law. President Biden committed to restoring our asylum system, and has emphasized the need to treat people humanely and with dignity. But progress has been far too slow and the asylum system remains shut down to most people who are seeking protection.

  • Biden suspended Trump’s illegal “Return to Mexico” policy, but must act more quickly to permanently rescind the policy and address its harms. Trump’s so-called Migrant Protection Protocols (MPP), which forcibly returned thousands of people to dangerous conditions in Mexico, rather than allowing them to pursue their asylum claims from within the U.S., was illegal, as we established in court; it was also a humanitarian disaster. MPP denied people a meaningful opportunity to obtain asylum, while forcing them to remain in places where they were — entirely foreseeably — targets of kidnapping, rape, torture, and other abuse. President Biden suspended this policy pending a formal review and began a program to bring those subjected to MPP back to the U.S. The operation has offered dignified treatment to many who have made it back, but the administration must pick up the pace and commit to full redress for all migrants harmed by this policy, many of whom remain severely traumatized by their experiences under MPP. It must also commit to permanently rescinding the policy and to not reinstituting a similar policy in the future.
  • Biden has largely continued Trump’s illegal misuse of “Title 42” public health authority to expel people seeking asylum. Like Trump before him, Biden is relying on Title 42 to illegally bypass the immigration laws and expel asylum seekers and migrants without a fair process, pushing them back into perilous conditions in Northern Mexico or flying them directly into harm’s way and political turmoil — indeed, according to a recent report, the Biden administration has used Title 42 to send more migrants back to Haiti over the course of several weeks than the Trump administration did in a whole year. Biden must stop these dangerous Title 42 expulsions and rescind this policy, which was never justified on public health grounds and has always been illegal, as the ACLU and its partners have established in several lawsuits.
  • Unlike Trump, Biden is not expelling children at the border, but must do more to ensure safe and humane treatment. Biden did not continue the Trump administration’s unlawful policy of expelling unaccompanied children — a crucial decision for which it deserves credit. And the Biden administration has marshaled resources across agencies to temporarily house children while their placement with sponsors is vetted. However, the Biden administration must do more to get children out of CBP custody; to rapidly expand capacity within licensed, small-scale shelters; and to safely release children to sponsors without unnecessary delay.
  • Biden suspended construction of the border wall – but continues Trump’s lawsuits against landowners. As a candidate, Biden promised “not another foot of wall” during his administration. President Biden appeared to make good on that promise, announcing on day one that his administration would immediately suspend construction. But Biden has not yet issued a promised report on Trump’s illegal transfer of military funds for wall construction, and has only “paused” wall construction that the ACLU and Sierra Club successfully blocked in lower courts — a case that is now in the Supreme Court. The federal government has continued litigation initiated by the Trump administration against landowners, and in April, a federal judge awarded the Biden administration title to property owned by South Texas landowners. It is imperative that the Biden administration return the property, withdraw the eminent domain cases initiated by the Trump administration, and take steps to repurpose or terminate wall projects and to mitigate the severe harms caused by the Trump administration’s illegal and rushed construction through public lands.
  • A task force is not enough: Biden must address the irreparable trauma inflicted by Trump’s family separation policy. On February 2, Biden issued an executive order creating the Family Reunification Task Force with a broad mandate and a commitment to reuniting families in the U.S. However, the Biden administration has yet to reunite a single family in the U.S., and thousands more families continue to suffer from the trauma this policy inflicted. Every family torn apart by this policy must be reunited in the U.S. without delay, and be given the citizenship, care, and resources they deserve.

ENDING ICE ABUSES

Immigration and Customs Enforcement (ICE) has targeted immigrant communities and engaged in repeated and systemic civil rights violations. Biden must act swiftly to end these abuses once and for all, and fully break from the racist and unfair policies of the past.

  • ICE has continued to deport thousands. President Biden issued a 100-day deportation moratorium on day one, but the moratorium only covered certain deportations and, as it turned out, it was blocked by a federal court in response to a lawsuit from the Attorney General of Texas (the ACLU intervened in the case). And throughout the last three months, ICE has continued to deport thousands of people, in many cases flying them directly into harm’s way. The Biden administration has the authority to immediately halt these expulsions, which disproportionately impact Black and Brown immigrants, and it must do so.
  • ICE arrests have fallen dramatically overall, but Black and Brown immigrants continue to be disproportionately targeted. ICE arrests have dramatically fallen in the first months of the Biden administration. However, the Biden administration’s immigration enforcement guidelines have continued to import the racial bias of the criminal legal system, leading to the disproportionate deportations of Black and Brown immigrants. We are urging the Biden administration to change its policies to prioritize keeping families together and giving people a fair chance to pursue legal relief.
  • Biden has yet to end programs that co-opt local law enforcement as “force multipliers” for ICE. During his campaign, then-candidate Biden voiced his concern about ICE programs that rely on state and local law enforcement to conduct federal immigration enforcement, including ICE detainers and the 287(g) program, which is notorious for encouraging racial profiling and undercutting trust between local law enforcement departments and immigrant communities. The Biden administration must end these programs, which were a key enabler of the Trump administration’s turbocharged deportation agenda.
  • Immigrants are still languishing in detention for no good reason. Although ICE set up a new case review process that purports to provide new avenues for people to challenge their unjust detention, immigrants are still languishing in ICE detention, including in facilities with horrific records of abuse and detention centers located in remote areas with poor access to legal counsel and medical services. Many of these immigrants are subjected to detention without any hearing before an impartial immigration judge. Thousands of people could be safely released to live at home while navigating their cases. With lower arrest rates, the Biden administration has a historic opportunity to shutter these ICE facilities.

UNDOING HARM TO MUSLIM, ARAB, BLACK, MIDDLE EASTERN, AND SOUTH ASIAN COMMUNITIES

  • Biden rescinded the Muslim Ban and its expansion targeting Africans, but has failed to provide relief to many of those harmed. President Biden rescinded Trump’s Muslim ban and its expansion targeting Africans on day one of his administration. However, the Biden administration has failed to make whole those who have been impacted by this ban for four years. Thousands of diversity visa lottery winners were stripped of their precious opportunity to come to the U.S. solely because of the ban, but the administration has not done anything to remedy their situation. Additionally, most people denied other visas under the Trump administration will have to reapply, pay new fees, and go through another excruciating wait, rather than reopening their applications. These decisions threaten to forever prevent thousands of Black and Brown immigrants who meet all of the legal requirements to immigrate to the U.S. from doing so, perpetuating the effects of the discriminatory bans.
  • Biden’s flip-flopping on refugee admissions continues to harm people around the globe. Candidate Biden promised to prioritize refugee admissions and return the country to its global leadership position as a haven for those fleeing persecution. Unfortunately, he quickly betrayed that promise when the administration announced it would keep refugee admissions for Fiscal Year 2021 at Trump’s historic low. Following public and congressional outrage, the White House claims that a “final, increased refugee cap” for this fiscal year will be determined by May 15. Whether Biden will follow through on this new promise remains to be seen.

PASSING CITIZENSHIP LEGISLATION

The American people soundly rejected the hateful and divisive anti-immigrant policies pursued by the Trump administration. Now it’s imperative for Biden and Congress to seize on this momentum to finally get citizenship legislation done.

  • Biden has proposed landmark citizenship legislation, but must press harder on Congress to act. On day one of his tenure, President Biden proposed immigration legislation creating pathways to citizenship and legal residency for millions of undocumented Americans. Biden’s immigration legislation — and the long-debated Dream Act — are now waiting for action by Congress, even as the country braces for a decision in litigation concerning the Deferred Action For Childhood Arrivals (DACA) policy. A negative decision will jeopardize the livelihoods of more than 800,000 people who have long called this country home. It is long past time for Dreamers to be out of limbo and on a path to citizenship. The Biden administration must work with Congress to pass citizenship measures, including through the reconciliation process.

From economic relief to infrastructure, the Biden administration has been praised for its boldness in doing the right thing, and for refusing to temper its aspirations or retreat from its values for the sake of mollifying extremists on the opposing side.

That same bold leadership and moral clarity is needed now on the issue of immigration. Far-right politicians are mimicking Trump’s extremist and racist rhetoric in a cynical appeal to their base. Biden should ignore them. Biden has the power to make good on his promises to fix this broken system and build a future where all are welcome and all are free. He must use it.

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Biden Must Make the Current Enhanced Child Tax Credit Permanent

*This op-ed was originally published in Newsweek

Two children could be born on the same day in Anytown, USA.

Both born to loving families, healthy and at an average weight of seven pounds. However, one child is born into poverty and the other is not. The child born into poverty is more likely to experience toxic stress, suffer from environmental exposure to lead, develop diseases like asthma and experience trauma.

Growing up, the child is more likely to live in a school district with low-quality education, and as an adult, more likely to encounter barriers to employment and become entangled with the criminal legal system.

By the time both children are 30, the child born into poverty, on the same day as the other child, is more likely to remain poor—no matter how hard they’ve studied or worked.

This is what poverty in America looks like for the 1,541 babies born into poverty every day.

Our collective decades advocating for children leads us to an inescapable conclusion: Child well-being is not only the responsibility of parents and neighbors, but also of government—especially a government that speaks and acts in the name of children without their consent and has the ability to help address the significant obstacles poor children in Anytown face. We both believe that to fulfill the government’s responsibility to the nation’s children, we must enact a permanent child tax credit.

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The Biden administration made an admirable down payment on that responsibility. In March, President Biden and Congress enacted the American Rescue Plan. The Rescue Plan expanded the existing Child Tax Credit (CTC) for one year and increased the maximum credit from $2,000 to $3,600 per child under six and $3,000 for children aged six to 17. The plan also ensured that families with little to no income receive it, a crucial change from the previous credit’s design. The credit will likely be distributed in monthly installments, rather than one lump sum (like a tax return), starting in July.

The impact of the child tax credit expansion cannot be overstated. Before the onset of the COVID-19 pandemic, children were the poorest age group in America, with children of color and young children suffering the highest poverty rates.

Nearly one in seven children—more than 10.5 million—were living in poverty in 2019. America’s child poverty crisis is unmatched among countries. And the disproportionate impact on children of color isn’t an accident: It tracks with decades of disinvestment from communities of color and systemic racism, leading to large racial wealth and income divides. The median white family has roughly eight times more accumulated wealth than the average Black family.

After its successful implementation, the CTC expansion will lift 4 million children out of poverty and expand eligibility to the 23 million children—mostly Black and Latinx children—who were previously excluded from the benefit. For Black, Latinx and Indigenous children, poverty will be cut by 52 percent, 45 percent and 61 percent respectively. Moreover, while the cash benefit will have an obvious, near-immediate impact for the many families struggling to make ends meet during the pandemic, its benefits will extend far beyond the current economic crisis. Additional income has long-term benefits for children, improving outcomes in a child’s education, employment and health.

Child poverty is a national tragedy with profound moral and practical costs. Over the years, the American Civil Liberties Union (ACLU) brought many cases against state and county agencies all over the country on behalf of children who were neglected, provided inferior services and discriminated against in institutions and foster care systems.

Across the country, Children’s Defense Fund (CDF) advocates and organizes with the vision of a nation where marginalized children flourish, leaders prioritize their well-being and communities wield their power to ensure they thrive. We know just how crucial income support from the government can be for so many children, and how reforms like those in the stimulus package can advance racial equity, narrow the racial wealth gap, reduce child poverty and provide a brighter future for all children.

The obligation to our children is past due and leaders must shift their policy frameworks to child-centered priorities that advance equity and justice. This should start with making the enhanced Child Tax Credit permanent to finally end child poverty for all the nation’s children.

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What President Biden Needs to Do Beyond the First 100 Days

One hundred days have passed since the Biden-Harris administration assumed office. From the start, the administration faced the monumental task of undoing the vast harms of the Trump presidency while addressing an ongoing pandemic. Concurrently, a nationwide reckoning with systemic racism, particularly in the policing and criminal legal systems, serves as a reminder that many of this country’s systems were broken long before Trump. Now is our chance, as we pick up the pieces, to reform and rebuild our institutions based on the painful truths that have been further highlighted over the past four years.

Trump policies such as family separation shocked the nation and the world, yet beyond reuniting the families we separated, further action must be taken to build an immigration system that is truly humane, inclusive, and makes all communities feel safe. The disastrous government response to the COVID-19 pandemic shined a spotlight on major disparities in access to key needs — such as housing and broadband — that have harmed communities of color for generations. And as we begin to hold police accountable for killing Black and Brown people, we must also continue the broader fight to end mass incarceration and reform the racist criminal legal system. These systems are in urgent need of change — and while Biden has made progress in his first 100 days, it will take more to build institutions that truly herald justice, fairness, and equality for all.

Immigrants’ Rights

The Trump administration was the worst in modern history for civil rights and liberties across the board, but from day one, attacking immigrants and eviscerating our already dysfunctional immigration system was its cornerstone. One of Trump’s first executive actions in office was signing the Muslim ban, and not long after, his administration abandoned Dreamers and enacted a cruel policy of separating families at the border. We commend the Biden administration for its swift response in rescinding the Muslim ban and renewing DACA, among other important actions impacting immigrants’ rights. But the work isn’t yet done, and on far too many issues, the Biden administration has continued or only temporarily paused Trump policies.

Family separation remains a lasting stain on this country’s history. Years later, the parents of roughly 400 children have not yet been located. Thousands more continue to suffer trauma and continued separation. Even families that were reunited have been irreparably traumatized. The Biden administration has an obligation to find and reunite every single one of these families in the U.S. and work with Congress to provide a pathway to citizenship. These families also deserve resources, care, and a commitment that family separation will never happen again.

The asylum system is also in need of reform. Current policies are causing families to split in Mexico and send their kids unaccompanied to the U.S. in hopes of a better life. The Biden administration should help build a humane asylum and immigration system that does not break up families and force people to risk their lives out of desperation, and help dismantle the deportation and detention machine that has disproportionately harmed Black and Brown immigrants.

Fair Housing and Homelessness

The eviction crisis that accompanied the onset of the COVID-19 pandemic highlighted long-standing inequities in housing access, particularly when it comes to race and gender. On average, Black renters are nearly twice as likely to be evicted as white renters, and Black women are evicted at an even higher rate. And because landlords frequently discriminate against prospective tenants with a prior eviction record, it can be difficult or nearly impossible to secure housing in the future. Housing instability hinders the physical and emotional wellbeing of families, particularly children.

In response to housing instability caused by the pandemic, the Biden administration has taken action by extending the federal moratorium on evictions, relieving the burden of paying for housing for people who may continue to face unemployment, medical concerns, and other financial obstacles related to the public health crisis. The administration has also begun to address discriminatory practices and policies that prevent too many families from accessing their right to fair housing. Looking ahead, we need more and more committed action related to combating exclusionary zoning and segregation.

Broadband

In today’s world, broadband is not a luxury, it’s a basic necessity like water, gas, and electricity. Still, millions of people in America are living without access to broadband, and they are disproportionately people of color, rural, and low-income. Because broadband is linked to opportunities in employment, education, and other important means of connection, broadband access is not only a platform for speech, but also a key driver of systemic equality.

President Biden has signaled commitment on this issue by including $100 billion in funding for broadband access in the American Jobs Plan, which would help deploy reliable, high-speed internet to every household in the U.S. Congress and the Federal Communications Commission have also taken important steps by implementing and extending the Emergency Broadband Benefit (EBB) as part of the latest stimulus package. The EBB will provide families with a $50 ($75 on Tribal lands) subsidy for internet access for the duration of the pandemic. But internet access will remain just as necessary after the pandemic, and the government must act accordingly by ensuring that every person in America has access to a free, open, and affordable internet.

Criminal Legal System Reform

The American criminal legal system has been a key driver of racial inequality since the country’s founding. The over-policing of Black and Brown communities and unjust sentencing practices have made America the largest incarcerator in the world. Many people sitting in jails have not even been charged, because our bail system criminalizes poverty and puts a price tag on freedom for those awaiting trial. Many more are serving outrageously long sentences due to war on drugs policies that disproportionately impact people of color.

By directing the Justice Department not to renew contracts with federal, privately-operated prisons, the Biden administration has just scratched the surface. To truly fight mass incarceration and meaningfully improve our criminal legal system, the administration must end the war on drugs, better leverage clemency powers, end the federal death penalty, and reduce the role of police in communities, including by embracing a strict use of force standard for all police departments so we reduce the tragically high levels of police violence.

Racial Justice

The injustices of the criminal legal system are examples of the systemic racism that permeates all of our institutions. To build a more equitable country for all, the Biden administration must make racial justice a priority across the board. In voting rights, that means expanding access to the ballot for all voting age Americans, including those who are incarcerated. In education, that means, among other measures, forgiving $50K in student loan debt per eligible borrower — a debt which disproportionately harms people of color. The economy can be made more equitable by making the enhanced child tax credit permanent. It will take a comprehensive approach to seriously address America’s legacy of racism and systemic discrimination.

Beyond the 100 Days

One hundred days into the Biden-Harris administration, many needed reforms remain more urgent than ever. Each day that passes is another day too long for people sitting in jail without charge, whose lives have been swallowed by the mass incarceration and policing systems. Each day that passes is another day too long for families living without a roof over their heads, for people who cannot take part in modern society because they can’t afford broadband, and for Black, Indigenous, and other people of color contending with systemic racism instead of systemic equality.

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How Broadband Access Advances Systemic Equality

If you’re reading this article, you’re probably not one of the millions of people living without broadband access in America. People living without broadband access — who are disproportionately non-white people, low income, or rural — do not have access to equal opportunities in education, employment, banking, and other important components of connection and social mobility. That was the case before the pandemic, and it’s even worse now.

The digital divide is what separates those without broadband from those with it, and it encompasses all the broader social inequalities associated with an increasingly digitized world. Along with discrimination in housing, banking, employment, and other areas of life, it is both a result of and contributes to systemic inequalities faced by people who are Black, Latinx, Indigenous, and other underserved groups.

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What is broadband and why do we need it?

Broadband is the term used to describe high-speed, reliable internet — the kind of internet that allows us to stream movies, take part in Zoom calls, and connect with our social networks. Since 2015, the Federal Communications Commission has defined broadband as a minimum of 25 megabits per second (Mbps) download and 3 Mbps upload. But while internet upload and download speeds have changed significantly over the years, the FCC has not updated its definition. That makes it difficult to get an accurate picture of how many people are living without access to the internet that’s usable given today’s higher technology demands.

Over the past year, schools, workplaces, health care providers, and many other basic services and functions have moved online, allowing for life to continue during lockdown. The numbers reflect this societal shift: Data use on home networks was 47 percent greater in March 2020 than the year before. But as broadband has become even more integral to our everyday lives, not all communities have had equal access. For communities living without broadband, the pandemic has only exposed and exacerbated the digital divide.

How does broadband contribute to systemic equality?

The deepest rift in the digital divide is when it comes to race: Black and Latinx adults are almost twice as likely as white adults to lack broadband access. Due to systemic inequities in education and employment, people who are Black or Latinx have lower average incomes than white people, and for many of these households, a broadband subscription — at an average rate of $68 per month — may simply be unaffordable.

Check out the chart below for a rough monthly expense estimate for a family of four (two adults and two minors) living in Washington, D.C, a historically majority-Black city. At about $6,515 per month, the estimated monthly expenses amount to over $2,000 more than the median individual monthly income, according to U.S. Census Bureau data from 2019. Even in a household with two income earners, there is almost no room for any unexpected expenses.

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Adults living without broadband face significant barriers in accessing employment, education, and other necessities — but children are also impacted. Access at home is an important factor in a student’s success, and is associated with higher grades and homework completion. This need was amplified by the pandemic. Many of the millions of Black and Latinx children who live in households without broadband access have not been able to attend virtual classes, potentially falling behind their classmates by an entire school year or more.

Children without broadband also miss out on developing digital skills that are necessary in today’s job market. As a result of the digital divide, more than half of Black and Latinx people could be under-prepared for 86 percent of jobs by 2045, according to Deutsche Bank. These digital skills are also crucial to innovation and entrepreneurship. Black-owned businesses have increased 37 percent from 2007 to 2012. The 2019 American Express State of Women-Owned Businesses Report shows that Black women-owned businesses are the fastest growing at 21 percent of all women-owned businesses but only have an average annual earning of $24,000. Limited broadband access compounds the numerous systemic inequity barriers to Black-owned and Black-women owned business growth.

Access to home broadband by race

Source: Free Press analysis of July 2015 Current Population Survey Computer and Internet Use Supplement

The systemic inequity posed by limited broadband dovetails with a science policy concept called “public value failure.” Public value failures describe the failure of a society to provide a public value, such as rights, benefits, or privileges of citizens provided by governments and policies. There are nine public value failure categories, which cover the political, economic and social aspects of this theory: mechanism for values articulation and aggregation; legitimate monopolies; imperfect public information; distribution of benefits; provider availability; time horizon; sustainability vs. conservation; and ensuring subsistence, human dignity, and progressive opportunity.

Focusing on all of these public failures simultaneously won’t lead to substantive and sustainable change. So, we tackle what we can. Broadband access falls most fully into the distribution of benefits and provider availability categories, with arguably a large dose of the progressive opportunity category as well. All of our classrooms — regardless of a person’s socio-economic status, urban/rural location, or in-person/remote delivery — require broadband access to hear an instructor’s lecture, see a helpful tutorial, and practice the new skill. Identifying and improving in these areas hinges on building better equity in education, particularly in data skills attainment.

How do we bridge the digital divide?

There are steps the government can and must take to expand broadband access to Black, Latinx, Indigenous, and other underserved communities. In Congress, new legislation introduced by Rep. Jim Clyburn, the Accessible, Affordable Internet for All Act, would help sustain equitable broadband access by providing an additional $6 billion in funds for the Emergency Broadband Benefit, an FCC program created to help households struggling to afford broadband during the pandemic. The legislation would also improve data collection and transparency on broadband access, expand digital inclusion and equity efforts, preempt state laws that prevent municipalities from expanding broadband access, and prioritize infrastructure deployment to unserved areas, such as Tribal lands.

At the executive level, President Biden has already taken important steps by including broadband in his American Jobs Plan, but he can do more. Biden must also nominate a new FCC commissioner who supports broadband access and will restore net neutrality protections, and work with Congress to enact sustainable solutions to close the digital divide.

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The Unhappy 25th Birthday of Two Tough-on-Crime Era Laws That Have Deadly Consequences for Incarcerated People

This week, 25 years ago, Congress enacted a pair of laws that severely restricted the ability of incarcerated people to raise constitutional challenges against egregious conditions of their confinement, as well as unjust and wrongful convictions. In doing so, it furthered its ongoing project of reducing incarcerated people to second-class citizens. Over the last 25 years, this cruel pair of laws — the Prison Litigation Reform Act (PLRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) — have all but closed the federal courthouse doors to life and death lawsuits.

Let’s start with the PLRA. You or I can freely file a lawsuit against a neighbor who assaults us or a doctor who fails to detect or treat a cancer diagnosis, but the PLRA denies incarcerated people this right for similar violations. It builds a maze of procedural hurdles that effectively render an incarcerated person unable to challenge dangerous conditions of confinement. The PLRA is classic discrimination: It singles out one disfavored group of people and categorically denies them equal access to the courts.

One of the biggest obstacles under the PLRA is the requirement that, before they can go to federal court, an incarcerated person must first ask the prison or jail system — almost always the perpetrators of their problem — to fix it. They are required make this request using the precise words, phrases, and timing mandated by the system, and they must try every possible remedy provided by their jailer before they can file a lawsuit.

This is blandly called “exhaustion,” but in practice, a prisoners’ failure to dot every “i” and cross every “t” the jailer requires means their suit will be tossed. Exhaustion creates a perverse incentive for jails and prisons to create a Byzantine grievance process — one that becomes an unsurpassable barrier to justice. This is especially true for people who have learning, cognitive, or developmental disabilities, have mental illness, are not fluent in English, are segregated in solitary confinement, or for incarcerated children.

The result is antithetical to justice. In one instance, a 15-year old boy who was repeatedly raped and assaulted at a facility had his lawsuit dismissed for failure to exhaust the grievance process, despite his repeated complaints to staff while abuse was ongoing, and his mother’s repeated pleas to prison and court officials for protection for her child. The court held that the child needed to file his formal complaints within 48 hours of being assaulted and raped in order to have his case heard on the merits.

In addition to the exhaustion requirement, the PLRA requires that an incarcerated person be “physically” injured by the unlawful behavior. No matter how sadistic the mental or emotional injuries, the law bars any compensation absent physical injury. Applying this rule, federal courts have tossed lawsuits of incarcerated persons alleging abuse by staff, including when one group of people was “sexually battered … by sodomy,” and in another instance where a person alleged that a staff member reached between his legs and rubbed his genitals. The courts found that these claims failed because the persons had “only” suffered emotional injury and not physical injury.

The PLRA’s nefarious twin, AEDPA, passed in supposed response to the deadly, racist Oklahoma City bombing of 1995, has caused equally absurd and unjust outcomes. For example, Quintin Alonzo was 21 when he was arrested in Texas in 2001 for a murder he didn’t commit. Ten years later, the federal courts cited AEDPA in denying his claim that law enforcement hid evidence of his innocence at his trial. He then fought eight more years before a prosecutor in 2019 admitted that constitutional error infected his trial and that he was innocent, leaving Texas with no option but to release him.

Warren Hill wasn’t so fortunate. After the federal courts, citing AEDPA, turned away his constitutional claim that he could not be executed because every expert to have ever examined him believed he was intellectually disabled, the State of Georgia executed him. To explain how AEDPA facilitated these injustices, we need to explain the legal system before AEDPA’s birth.

For much of our nation’s history, people in state prisons whose convictions and sentences were tainted by violations of their federal constitutional rights could look to the federal courts and two pillars of the American justice system for redress. One pillar is the basic principle that federal courts have the authority — and the responsibility — to say what federal law is and when it has been violated. In other words, when it comes to federal law, federal judges call the balls and strikes. The second is the right to federal habeas corpus — lawyer speak for the right of an incarcerated person to go to federal court and demand release (or reprieve from a death sentence) if a federal judge determines that a state court conviction or sentence is unconstitutional.

For people in state prisons, federal habeas review is crucial. Appointed federal judges with lifetime tenures are much better positioned to police federal constitutional violations than state judges who must stand for election and have frequently done so on tough-on-crime platforms.

Then came AEDPA, which takes away the authority of federal judges to do these basic parts of their jobs. The law creates a maze of Kafkaesque procedures that create the danger of an incarcerated person’s petition being thrown out at every turn for a failure to follow even the most minute rule — regardless of whether their claims have merit. In those rare cases in which federal judges reach the constitutional claim, AEDPA says it doesn’t matter whether the judge believes federal law was violated. Rather, under AEDPA, relief may only be granted if the prisoner first made their claim in the state courts and, in turn, the state courts not only erred by failing to uphold the federal constitution, but also badly botched their review of a prisoner’s federal claim for relief.

Quintin Alonzo lost eight years of his life because he could not find his way through this statutory maze. Warren Hill lost his life altogether, because the Georgia courts were not wrong enough in denying his constitutional claim. That both of these men are Black should not surprise anyone — the racism inherent in the criminal legal system is part and parcel of its design and origin.

One of the original justifications provided on both sides of the political aisle for these laws was the need to stem the flood of allegedly frivolous lawsuits brought by incarcerated people to federal courts. The reality is that most cases filed by incarcerated people both before and after the PLRA and AEDPA raise serious issues, and courts are equipped to handle frivolous cases whether they are filed by incarcerated people or people in the community. Further, the barriers posed by these laws don’t just make it harder to file meritless lawsuits: They make it nearly impossible for any incarcerated person to meaningfully seek relief in federal court, no matter the validity of their claims.

As former Justice Anthony Kennedy famously observed: “Prisoners retain the essence of human dignity inherent in all persons.” Repealing and/or amending these deeply flawed laws is the least we can do to acknowledge the humanity of the people confined in jails and prisons across the land, and ensure they have access to justice.

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New ACLU Report Finds Debt-Based Driver’s License Suspension Laws Impose Harm and Waste Resources

In the tragic killing of Daunte Wright, police claimed they stopped him because when they ran his plates, they found he had unpaid fines and fees. Fines and fees are part of a nationwide problem where state and local governments rely on law enforcement for revenue generation. When policymakers allow counties and states to rely on fines and fees to fund essential services, they perversely incentivize the over-criminalization and over-policing of innocuous conduct. More laws fining minor offenses create more opportunities to issue money-making tickets and, consequently, provide more excuses for police to engage in race-based surveillance under the guise of the law.

Wright’s death is just the most recent example of the devastating harm caused by employing law enforcement officers as debt collectors. Every year, there are 30 million cases related to minor infractions punishable by fines and fees ⁠— many of which give cops an excuse to make pretextual traffic stops. Our new report, “Reckless Lawmaking,” proposes a simple fix to stop over-policing and decrease income inequality: end debt-based license suspension.

In our study, we reviewed the state policy landscape and conducted in-depth semi-structured interviews with 16 people who had unpaid fines and suspended licenses. Each interview proved that debt-based suspensions make it nearly impossible for drivers to pay off their debts.

Suspensions are counterproductive to improving collection outcomes. If a driver can’t afford a parking ticket, they also can’t afford the late fee for the missed payment. Take Dario, one of our interviewees, who was pulled over by the police for “tinted windows.” When he couldn’t afford to pay the initial ticket of $225, he got slapped with an extra $807 in fees, for a grand total of $1,032. Neither the police nor the court cared that Dario couldn’t afford the charges and his license was suspended pending repayment. But because he worked 35 miles from his home, the suspension cut his income in half.

“Since I couldn’t drive to work, I lost my job,” Dario explained ⁠— a story that repeated itself across multiple interviews.

A $225 fine becomes a $1,032 debt when additional fees are added. (represents Dario’s debts).

Suspending Dario’s license for tinted windows keeps nobody safer, but the policy behind the suspension endangers many people. When policymakers rely on predatory fines and fees to fund government services, they not only impoverish drivers, they also incentivize unnecessary encounters with the criminal legal system and waste city resources. Our interviewees faced required court appearances, compounding criminal charges, and even jail time for failure to pay. For example, our interviewee Jessica from Florida had her license suspended when she could no longer afford her car insurance premium. When she missed a court date, she was arrested for failure to appear.

Police enforcement of fines and fees also increases contact between drivers and police. Because cops can identify unpaid fines and fees with license plate readers, police enforcement of missed payments justifies pretextual police stops. At best, these stops result in additional fines for drivers struggling to pay original fines. At worst, these encounters escalate to violence or death. Just last week, an unpaid fine gave former officer Kim Potter a pretext to stop Daunte Wright. The stop ended with Potter fatally shooting Wright.

Even when pretextual policing doesn’t result in death or police brutality, it still has devastating mental and emotional health consequences for impacted individuals. “When I got to court, I almost had a nervous breakdown,” relayed our respondent Rosie from Colorado. “I thought, ‘This is just one ticket.’ Then I saw I was facing actual criminal charges. I couldn’t breathe.” Another respondent, Katy, shared, “I had my small child with me at the time. It was very traumatic. The cop was very aggressive and threatening.”

Our report gives policymakers multiple recommendations:

  • Driver’s license suspension should not be used as a penalty for failure to pay or failure to appear, regardless of the underlying offense: States should make it easier, not more difficult, for people to comply with payment by instituting reasonable payment plans, retroactively reinstating suspended licenses, and waiving reinstatement fees.
  • All fees should be eliminated: The government should end fiduciary reliance on fines and remove perverse incentives for law enforcement to criminalize drivers based on income level.
  • Existing prescribed dollar amounts for fines should be replaced with income-based measurements: For example, payments could be based on one day’s pay or 1 percent of monthly income.
  • Lawmakers and court administrators should provide robust, timely notice of payment and court obligations: Information about payment and license reinstatement should be easily accessible.
  • States should collect demographic data for debt-based driver’s license suspensions: Given the racial and economic disparities throughout the criminal legal system, states should routinely collect demographic data in all cases where fines and fees are imposed and collected.
  • States should regularly collect relevant data needed to assess the fiscal impact of fine and fee related license suspensions: Fiscal notes related to license suspensions should consider the scope of the impact, the cost of enforcement, and collateral costs to drivers from job loss, eviction, and economic mobility.

Our legal system should benefit the people it serves. Taking away driver’s licenses from people struggling to pay their debts is bad public policy, plain and simple. We need policies that reflect the economic reality of Americans surviving a pandemic, recession, and gilded-era wealth inequality. It’s common sense: Debt-based license suspensions are bad public policy.

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People of Minority Faiths Could Be Turned Away From Taxpayer-Funded Programs

Any moment now the Supreme Court could issue a decision that would permit taxpayer-funded government programs to turn people away because they are Jewish, Muslim, Mormon, or otherwise do not meet a government contractor’s religious requirements.

In Fulton v. City of Philadelphia, a taxpayer-funded foster care agency, Catholic Social Services (CSS), asked the court to rule that it has a constitutional right to opt out of the city’s non-discrimination requirement that applies to all foster care agencies and turn away prospective foster families headed by same-sex couples. CSS says because it has a religious objection to certifying same-sex couples as foster parents, the right to religious liberty entitles it to discriminate while providing this government service.

If the court agrees with CSS, those most directly affected will be children in foster care — wards of the government — who deserve care from all families who meet child welfare standards. The stakes are also high for LGBTQ+ families, who could face discrimination not only by foster care agencies but in all sorts of other contexts should the court rule that non-discrimination requirements cannot be enforced against discrimination that is religiously motivated.

These issues are of profound concern for many people of faith, including Reform Jews. The Torah’s repeated command to care for the widow and orphan teaches us to care for the most vulnerable among us, who include children in foster care. And we understand the Torah’s teaching in Genesis that God creates human beings “B’tzelem Elohim” (in the image of God) as embracing a broad, inclusive community, including LGBTQ+ people. As Rabbi Hilly Haber put it, “[o]ur sages hold before us a vision of a broad, inclusive community, one which powerfully links together the love of God and the loving work of human beings.” For many Reform Jews and other religious communities, LGBTQ+ equality is a critical expression of our belief in the dignity and worth of all people and, thus, a fundamental tenet of our faith.

But in addition to these consequences, what those seeking religious exemptions from non-discrimination laws fail to reckon with is the fact that the very rule they are asking for would jeopardize religious liberty by authorizing discrimination against people because of their faith. Non-discrimination laws also protect against discrimination based on religion, or lack thereof. The Jewish community, as well as Catholics, Mormons, Muslims, and other minority faith communities, have depended on these protections to overcome histories of religious intolerance and achieve full participation in society.

The concern about the implications for discrimination against people because of their faith are not hypothetical. CSS has a religious objection to accepting same-sex couples, but agencies elsewhere have religious objections to accepting foster families that do not share their faith. For instance, the largest taxpayer-funded foster care agency in South Carolina accepts only evangelical Protestant Christian families and has turned away Catholic and Jewish families.

The arc of American Jewish history reminds us there was a time when the Jewish community was explicitly told “Jews Need Not Apply.” This painful history is shared by other minority faith communities. In the 21st century, no religious minority — or any community — should be told they are not welcome, especially when seeking to participate in taxpayer-funded government programs.

Congregation Rodeph Shalom of Philadelphia’s community service to its neighbors in need is in part federally funded and facilitated in partnership with Catholic and other faith groups. There remains a critical role for faith organizations to partner with one another and with the government for the good of the community. But when we provide these public services, we understand we must provide them to all who are eligible.

Philadelphia, along with cities and states across the country, ought to be permitted to remain steadfast in enforcing their non-discrimination policies for publicly funded foster care programs, and all government programs. This is not because civil rights ought to eclipse religious liberty, but because civil rights encompass religious liberty. As Americans, let us not falsely pit one against the other.

Rabbi Jill Maderer is the senior rabbi at Congregation Rodeph Shalom in Philadelphia, one of the nation’s oldest synagogues, dating back to 1795.

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

We Don’t Lose Our Privacy Rights When We Travel

Every year, millions of people cross the U.S. border through airports, land crossings, and other ports of entry. Each will pass through customs before entering the country. For some travelers, however, the process isn’t simple. A growing number of travelers are being detained and subjected to warrantless and suspicionless searches of their phones, laptops, and other electronic devices by border officers who may cite a host of reasons for doing so, or no reason at all. By searching travelers’ electronic devices, border officers can access a vast array of personal, sensitive information, including photos, texts, emails, internet browsing history, and location data. This happens to U.S. citizens, permanent residents, tourists, and business travelers.

In 2017, along with partners at the Electronic Frontier Foundation (EFF) and the ACLU of Massachusetts, the ACLU brought a lawsuit against the Department of Homeland Security challenging this fast-growing practice — and won. In 2019, a federal district court ruled that border agencies’ policies on electronic device searches violate the Fourth Amendment, and that border officers must have reasonable suspicion that a traveler’s device contains digital contraband before searching it. However, a three-judge panel of the First Circuit Court of Appeals reversed this decision in February 2021.

Today we are petitioning the Supreme Court to take up the case on behalf of our clients, including a military veteran, an artist, a NASA engineer, journalists, and others whose devices were searched at the border by Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) officers. Several are Muslims and people of color. Their stories are stark examples of what happens in airports and other border crossings every day.

Zainab

As a Muslim woman who wears a hijab, Zainab has undergone prolonged, intrusive border searches repeatedly and has written about her experiences on her personal blog. One of those incidents occurred in 2017, while she was a graduate student at Harvard University. On her way back from a trip to Canada, CBP officers stopped her and demanded she unlock her phone and laptop, threatened to seize the devices if she did not comply, and questioned her about her religion, her travels, and even her blog. The invasive search drove Zainab to tears. She worried that the officers, who were men, would see photos on her phone showing her without her headscarf. When the officers finally gave her phone back, the Facebook app was open and displaying her friends list. It hadn’t been open when she turned over the phone.

Sidd

Sidd, an optical engineer from California, was on his way back from a solar-powered car race in Chile when CBP officers detained him and seized his phone at a Houston airport. When they demanded Sidd’s password, he tried to refuse, explaining that the phone belonged to his employer. The officers gave him a form stating “collection of this information is mandatory at the time that CBP or ICE seeks to copy information from the electronic device.” Without a meaningful choice, he finally surrendered his password.

When the officers returned Sidd’s phone, they told him they had used “algorithms” to search it — indicating they used forensic tools to capture and analyze the information contained in the device, including emails, texts, and other private information.

Akram

Akram, a native New Yorker and independent filmmaker, hesitated to hand border officers the password to his phone. They asked if he had something to hide. He ended up complying because he had no meaningful choice. Just days later, border officers again detained Akram and demanded his phone after a day trip to Canada. This time, he refused. Three officers responded with force, holding his arms and legs while choking him and inflicting severe pain as they took his phone from his pants pocket. Akram feared for his life.

Matt

In the spring of 2016, Matt, a software programmer from Colorado, traveled to Southeast Asia to visit friends and take part in ultimate frisbee tournaments. When he returned home, CBP officers in Denver detained him and confiscated his laptop, phone, and camera, and told him it could be as long as a year before he’d get them back.

Later, after submitting a Freedom of Information Act request with EFF, Matt learned that the government had extracted data from his camera and his phone’s SIM card, and attempted to use a forensic tool called MacQuisition to copy everything on his laptop. CBP disclosed to Matt that it did not find any “derogatory” information about him in his devices or otherwise.

Diane

Diane is a former Air Force captain and a university professor of homeland security and conflict studies. During her return from a trip to Norway in 2017, border officers in Miami pulled her aside, held her in a small room, and demanded she unlock her phone and laptop. As she watched the officers search her devices, she worried they would read her emails and texts, look at her photos, download her personal information and contacts, and share the data with other government agencies. She was released about two hours later, feeling humiliated and violated.

Isma'il

In July 2017, Isma’il, a freelance journalist, crossed the U.S.-Canada border on his way home from a short trip to Montreal with his classmates in a Middlebury College language program. Border officers demanded access to his phone and questioned him about his work as a journalist. He was released three and a half hours later.

 

The petition for certiorari, filed in partnership with EFF and the ACLU of Massachusetts, asks the Supreme Court to overturn the First Circuit’s decision and hold that the Fourth Amendment requires the government to obtain a warrant before searching electronic devices, or at least have reasonable suspicion that the device contains digital contraband. The Supreme Court must ensure that we don’t lose our privacy rights when we travel.

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Derek Chauvin Verdict Means Accountability, Not Justice

Last year, the world watched Minneapolis police officer Derek Chauvin kill George Floyd in plain sight after arresting him for an alleged counterfeit bill at a convenience store. The footage released from the encounter sparked an international movement as protesters took to the streets for months, calling for racial justice and an end to police brutality.

On Tuesday, after weeks of arguments, the jury released a verdict in the Derek Chauvin trial: guilty on all three counts. For many, the verdict felt both inevitable and impossible: In spite of Chauvin’s egregious act being caught on camera, convictions against police officers who commit blatant acts of violence are a rarity thanks to the laws and systems that protect them and allow them to act with impunity.

On our podcast this week, we hear reactions on the ground in Minneapolis following the verdict’s announcement, and check in with the ACLU’s Policing Policy Advisor, Paige Fernandez. As one demonstrator, Osman, told us, the sense of victory was tempered by the knowledge that much work remains ahead:

“The man murdered another man in front of the world. There’s a lot more that needs to be done. There’s too many George Floyds that were not caught on camera…We’re not asking for change, we are demanding change.”

https://soundcloud.com/aclu/daunte-wright-should-have-never-been-stopped

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Privacy Rights Do Not Come With a Price Tag

Apps you use every day on your phone collect and sell sensitive data, including your location over time. That data could wind up in government hands without you even knowing it — and it’s already happening to millions of people across the country. When the government wants to obtain our private information, like our location data, the Fourth Amendment requires it to go to court and obtain a warrant, but over the past year, we’ve learned that the government has been buying its way around this requirement. Agencies are purchasing location data and other sensitive information from private companies without ever setting foot in a court.

Today, Sen. Ron Wyden and Rep. Jerrold Nadler led a bipartisan group of legislators in introducing the Fourth Amendment is Not For Sale Act, a critically important bill that will prevent agencies from circumventing core constitutional protections by purchasing access to data they would otherwise need a warrant to obtain. The ACLU is urging members of Congress to cosponsor the bill and to support all efforts to enact it quickly.

Last year, news outlets began reporting that federal agencies have been purchasing private location data and other sensitive information from several companies in the business of aggregating and selling data, including “data brokers” like Venntel and X-Mode. These companies often obtain the data through common apps like weather or dating apps, without users realizing it. The federal agencies that purchased the data, which include the Internal Revenue Service and the Department of Homeland Security, have used it to track people’s location without a warrant or probable cause — or even suspicion that anyone whose information was in the dataset had committed any wrongdoing. These reports raise significant concerns that the government is evading Fourth Amendment protections and violating our privacy rights.

In November, reports emerged that the U.S. military is purchasing location data harvested from apps aimed at Muslim users, including a dating app and a prayer app with over 98 million downloads worldwide. This revelation is an example of how data brokers can pose a serious threat to not only privacy but to religious freedom. For Muslim communities long subjected to intrusive government surveillance, it was yet another instance of intrusion into personal beliefs and lives.

We are working hard to uncover the full scope of the government’s purchase of private data and hold it accountable. But we can’t stop there. We must prevent these privacy invasions from occurring in the future. To do that, we need to bolster the protections in the Electronic Communications Privacy Act (ECPA). The ECPA, like the Fourth Amendment, prohibits the government from obtaining location data or similarly sensitive information from email, social media, phone, or internet service providers without court approval. In other words, if the government wants location information held by Verizon, for example, it must first get approval from a court.

When it comes to cell phone location information, the court approval must take the form of a warrant based on probable cause, as the Supreme Court held in a decision in an ACLU case in 2018. The problem is that the ECPA does not address situations where the government obtains that same data without a court order from data brokers and other entities that do not have a direct relationship with consumers. That means that when apps on your phone sell your data to data brokers like Venntel, that data could wind up in the hands of the government without a court ever reviewing the decision — as long as the government is willing to pay.

That outcome is at odds with the Fourth Amendment. It’s unclear whether the courts will ever address this problem, but what is clear is that Congress can fix it now. The Fourth Amendment is Not For Sale Act would do just that by preventing government agencies like Immigration and Customs Enforcement from buying access to our private data and skirting the Constitution in the process.This bill is necessary to protect our privacy and ensure the government doesn’t sell away our Fourth Amendment rights.

In addition to preventing government agencies from buying their way around important legal protections, the Fourth Amendment Is Not for Sale Act would:

  • Stop law enforcement and intelligence agencies from buying personal data if the data was obtained from a user’s account or device, or via deception, hacking, violations of a contract, privacy policy, or terms of service;
  • Extend existing privacy laws to infrastructure firms that own data cables and cell towers; and
  • Take away the attorney general’s authority to grant civil immunity to providers and other third parties for assistance with surveillance not required or permitted by statute. Providers would retain immunity where a court orders them to assist with surveillance.

The ACLU sent a letter to Congress today urging members to endorse and pass this important legislation. We must make sure that government agencies like ICE and the IRS cannot violate our Fourth Amendment rights. Our privacy rights do not come with a price tag.

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The Public Should Have Access to the Surveillance Court’s Opinions

For decades, a special court—the Foreign Intelligence Surveillance Court, or “FISC”—has issued secret legal opinions authorizing the U.S. government to conduct sweeping programs of electronic surveillance. These opinions have had a profound impact on Americans’ rights to privacy, free expression, and free association. But many of them are entirely hidden from public view.

Secret law undermines democracy and the legitimacy of the judicial system—especially when the law being withheld from the public affects the rights of millions of people. So today, the ACLU is asking the Supreme Court to order the FISC to publish its secret opinions, redacted only as necessary to prevent genuine harm to national security. The petition—filed by ACLU lawyers, former Solicitor General Ted Olson, the Knight First Amendment Institute at Columbia University, and the Media Freedom and Information Access Clinic at Yale University—argues that the First Amendment gives the public a presumptive right of access to significant judicial opinions, including those of the FISC.

Today’s Supreme Court petition has its origins in the disclosures made by Edward Snowden, which exposed profound changes in the role of the FISC in overseeing government surveillance. In 2013, journalists working with documents provided by Snowden reported that, in the years after 9/11, the FISC had secretly authorized the NSA to engage in bulk surveillance. Days later, the ACLU and co-counsel filed a motion in the FISC seeking access to opinions that had authorized the NSA’s bulk collection of telephone call records. And in 2016, after the breadth of the FISC’s secret law had become even clearer, we filed another motion asking for access to the court’s opinions addressing novel or significant issues raised by the government’s surveillance applications.

The FISC operates behind closed doors and does not customarily publish its decisions. Although Congress required the government to review significant FISC opinions for declassification and public release when it passed the USA FREEDOM Act in 2015, that review is conducted solely by executive branch officials, not a court. In addition, the government has refused to apply this requirement to FISC opinions issued prior to June 2015.

Publication of the FISC’s opinions is crucial to public understanding of the nation’s surveillance laws. The FISC has interpreted those laws in deciding the legality of novel and sweeping surveillance programs, including the government’s warrantless and suspicionless searches of private emails; the government’s bulk collection of internet and telephone metadata; and the government’s surreptitious installation of malware. As long as the FISC’s opinions remain secret, it’s impossible to know the full extent to which our surveillance laws have permitted intelligence and law-enforcement agencies to collect information on Americans’ communications and activities.

But last year, the FISC held that because it is a specialized court that deals mainly with issues related to national security, the public has no First Amendment right to view its opinions—even major ones that affect fundamental liberties. Months later, both the FISC and its special court of appeals—the Foreign Intelligence Surveillance Court of Review (FISCR)—adopted an even more extreme position, holding that they lack jurisdiction even to consider First Amendment motions like the ones we filed.

As we argue in our petition, the FISC and FISCR were wrong about the First Amendment. Our legal system is founded on the presumption that laws are public. That presumption applies to all judicial opinions containing significant interpretations of law. There’s no special exception for opinions involving government surveillance and national security. In fact, federal courts around the country routinely publish opinions on those very topics. The FISC’s significant opinions, which affect the rights of millions, are no different. Like all courts, of course, the FISC may redact its opinions when necessary to conceal legitimate national security secrets. But to justify these kinds of redactions, the government must satisfy the First Amendment’s stringent standards.

The FISC and FISCR were also wrong about their jurisdiction. Courts around the country routinely consider First Amendment motions for access to their records—motions just like the ones we filed in the FISC. This makes sense. All courts created under Article III of the Constitution, including the FISC and FISCR, have inherent authority over their own records. If they didn’t, they wouldn’t be able to function properly, because they could not manage their own proceedings or ensure public access to the judiciary’s central work—its legal opinions.

Federal courts have uniformly held that because they have inherent authority over their own records, they can decide motions for access to those records. The same is true of the FISC and FISCR. They may be more specialized than most courts, but their inherent control over their own opinions gives them the power to consider motions for public access. This was the FISC’s own position until it reversed course in September 2020.

By placing its opinions outside the reach of the First Amendment, the FISC has deprived the public of information that’s vital to understanding how the FISC has interpreted the law, and the government surveillance that it has authorized. The Supreme Court must right this ship. The First Amendment gives the public a presumptive right to know how the FISC has shaped the nation’s laws and our liberties, and it’s time for the Supreme Court to enforce that right.

This piece was originally published by Just Security.

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Daunte Wright Should Never Have Been Stopped

The story of 20-year-old Daunte Wright, shot and killed by Brooklyn Center, Minnesota police after being pulled over for minor traffic violations on Sunday, is heartbreakingly familiar. It is so familiar, in fact, that protests are happening just 10 miles from the courtroom where Derek Chauvin is on trial for the death of George Floyd. Police interactions with citizens shouldn’t end in death, and yet hundreds die at the hands of police every year. In order to protect and serve Black Americans, we need immediate solutions. 

What do these solutions look like? To Paige Fernandez, the ACLU’s policing policy advisor, and Somil Trivedi, senior staff attorney with the ACLU’s Criminal Law Reform Project, solutions lie in the decriminalization of low-level offenses, divestment from the police, and reinvestment in community resources. Fernandez and Trivedi joined At Liberty to discuss the reality of policing in America and what comes next. We also hear from activists on the ground in Minnesota.

“Crime is, first of all, a social construct,” said Fernandez. “And second of all, it’s not random. People have to engage in it when we can’t meet their needs. So I think there really needs to be a focus on: How do we allow people to thrive in this country?” 

“Policing targets overwhelmingly low income people,” she added. “So what if we provided them with the resources to have a job that pays them well, a living wage, and provides them with housing? So many of the criminal laws on the book criminalize poverty.” 

https://soundcloud.com/aclu/daunte-wright-should-have-never-been-stopped

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COVID-19 May Fade, But Will the Tracking Tools Built to Fight It?

At the start of the pandemic, technologists and policymakers touted the promise of technology to track and warn individuals of potential COVID-19 exposure and high-risk areas. But whether due to overburdened contact tracers or the lack of early and coordinated adoption, those technologies never became a central part of the public health effort against the disease.

With attention now on various schemes for “vaccine passports,” a concept posing threats to privacy and other civil liberties, and as the country nears one in five adults fully vaccinated, civil society, policymakers, and the public must remain wary of efforts to cement health and contact-tracing apps into everyday life, and continue to ask targeted questions of their use.

If not, such health surveillance apps — justified as necessary to monitor lingering cases, verify vaccination and health status for travel, and predict future outbreaks — may well become a lasting and increasingly invasive feature of public life.

Since the outbreak of the virus, at least 24 states and Washington, D.C. have rolled out exposure notification apps through Google and Apple’s Exposure Notification framework, GAEN (using Bluetooth signals and randomly generated keys to track possible exposures), and Exposure Notifications Express (allowing public health authorities to access the framework without maintaining or building their own app). These tools are more privacy-protective than other location-based tracking proposals we have seen. Save for a few worrying instances, the vast majority of state contact tracing apps have remained voluntary and largely developed through GAEN, something many other countries cannot say.

Still, several privacy-violative deployments in the U.S. should not be replicated. In North and South Dakota, the developer of the states’ Care19 app — designed to “anonymously” cache locations visited by users for more than ten minutes — was found to have secretly violated its own privacy policy by sharing users’ location data and personal identifiers with third-party apps, including Foursquare. In Utah, a $2.75 million app called Healthy Together, touted to utilize GPS and Bluetooth to augment contact tracing, became largely “a waste” three months after its launch when state officials shut off the location tracking feature because of widespread refusal to download the app.

College campuses were home to some of the most egregious cases of technology-assisted contact tracing, reflecting administrators’ wide latitude to effect mandatory policies as well as the influence of aggressive tech company marketing on unwitting administrators. At Michigan’s Albion College, a mandatory app called Aura used real-time location tracking to ensure students never left grounds, nor switched off their location — and, if they did, were locked out of buildings and faced suspension. One savvy student looking into the app’s source code found the security keys to the app’s backend servers, revealing students’ names, addresses, test results, and dates of birth.

Other schools like Harvard University and University of California, Irvine have used Wi-Fi tracking to monitor students’ movements and crowd flow. As a general rule, the use of location tracking is extremely problematic. It is both insufficiently accurate for contact tracing and violates the Fourth Amendment when used by law enforcement without a warrant.

We were also unhappy to see policies like those at James Madison University that mandated the use of tracking apps. With no formal appeals process, students and faculty could be reported to campus police and academic heads for failing to pass a five-question symptom survey, and campus community members were encouraged to inform on one another regarding suspected violations. Beyond being an instance of health theater, such coercive policies heavily incentivize false responses and risk being disparately enforced.

We’ve also seen the deployment of facial recognition and physiological surveillance on some campuses to fight COVID-19. Molloy College, for example, installed face recognition temperature kiosks, despite the technology’s highly dubious effectiveness, placing them in central campus buildings and dormitories and linking them to campus identification systems. The University of Southern California, one of the earliest campuses to adopt fingerprint scanning technology for access to certain campus buildings and dorms, recently replaced them with mandatory facial recognition scanners. In Michigan, Oakland University has distributed a wearable device, known as the BioButton, with a 90-day battery life to continuously log skin temperature, respiratory rate, and resting heart rate. Although voluntary, the technology is an example of continuous surveillance hastily implemented, without large-scale testing or FDA certifications as to effectiveness — and which puts the burden on students to ensure their private health information is expunged from third-party company records.

Though these instances of campus and state overreach are far from the norm, overbroad efforts to curb and track COVID-19 leave the door open to an abiding surveillance apparatus that won’t be dissolved once the public emergency dust settles. As the Biden administration looks into the interoperability of contact tracing apps, tech companies like sp0n — the creators of the controversial neighborhood safety app Citizen — are partnering with cities for digital contact tracing, while others investigate how contact tracing apps might double as digital immunity and vaccination passports for global travel.

As always, we ought to remain open to creative and privacy-protective ways of using technology during disease outbreaks. Concurrently, we have a duty to ensure that temporary COVID-19 data surveillance infrastructures do not take hold to outlast the effects of this once-in-a-century pandemic.

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