The DEA’s "Cold Consent" Encounters: Definitely Cold, Not So Consensual

January 30th, 2015 No Comments   Posted in ACLU Nationwide
By Hugh Handeyside, Staff Attorney, ACLU National Security Project

When law enforcement officers stop and question people for no particular reason, or in the case of the Drug Enforcement Administration, based on a vague perception that a person exhibits "characteristics indicative of drug trafficking," is it any wonder that allegations of racial profiling result?

A recent report from the Justice Department Inspector General is a case study in the dangers of this kind of unfettered, unmonitored law enforcement conduct. It examines the DEA's use of so-called "cold consent" encounters with members of the public – instances in which officers stop individuals and seek to question, search, and possibly seize cash from them, ostensibly with their consent. The DEA uses such encounters to stop drug trafficking at transportation facilities. It considers the encounters "voluntary" because they're not based on any specific indication of criminal activity, and the officers therefore are not requiring anyone to stop and submit to a search.

There are two main problems with this approach.

The first is that, as the report notes, "cold consent encounters are more often associated with racial profiling than contacts based on previously acquired information." Meaning: When law enforcement officers don't have adequate reasons for searching people, they tend to search racial and ethnic minorities disproportionately. Recently revised guidance from the Department of Justice makes clear that racial and ethnic profiling is unfair, impermissible, and "simply not good law enforcement."

That's precisely what seems to have happened with the DEA's cold consent encounters. Separate allegations of profiling from two African-American women prompted the IG to conduct its investigation. DEA agents stopped and searched each of the women on a jetway while they were preparing to board a flight. The agents said the first complainant was "pacing nervously" and "exhibited other characteristics" that made them suspicious that she was engaged in drug trafficking.

When officers stop people based on such subjective, ambiguous grounds – basically, their gut – they inevitably allow their own biases to influence those decisions. Similar allegations of racial profiling have been leveled at the TSA for its use of "behavior detection officers" in airport screening areas.

More demographic information on cold consent encounters would help reveal how much of a role of racial profiling plays. Conveniently for the DEA, it doesn't collect or analyze such information. As the IG concluded, this failure to collect demographic data prevents anyone from assessing "whether the encounters are conducted in an unbiased or effective manner."

For the DEA, ignorance is innocence.

The second major problem with cold consent encounters is that they're often not actually consensual. The story of the second woman who complained to the IG is an example. DEA agents told her that they were conducting "secondary screening" – a non-voluntary procedure typically carried out by the TSA – of passengers prior to boarding. She reasonably assumed that she had no choice but to submit to the search.

The IG found that DEA agents had used similarly misleading techniques near TSA checkpoints at airports on other occasions, misrepresenting themselves as conducting "secondary inspection" that appeared to be anything but voluntary. DEA agents, the report finds, also failed to advise people that they could refuse to consent to searches, or to request that people read and sign a standard DEA consent form.

When consent is relied on to justify a search, it must be shown that there was a clear and unambiguous consent, freely and voluntarily given. Troublingly, there's reason to believe the DEA is not only searching people without adequate consent or reasons, but also engaging in unlawful profiling in the process.

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For Some Families Fleeing Violence, a Shot at a Fair Shake

January 30th, 2015 No Comments   Posted in ACLU Nationwide
By Daniel Galindo

When I met Milagro* and her two toddlers just a few months ago, they were locked up in a makeshift federal detention facility in the desert of Artesia, New Mexico, awaiting imminent deportation to Honduras – a near certain death sentence in light of the extreme violence they would face there.

But now she and her children have hope.

After hearing Milagro's story – and many others like it – the ACLU and its partners filed a lawsuit in August that challenged and exposed the cruel deportation polices at the Artesia Family Residential Center, which prioritized speed over fairness. Five months later, the detention facility is closed, and Milagro and her little ones have been released from detention after an immigration judge granted their application for asylum.

This is a victory for immigrants' rights because the story Milagro recounted to me is typical of the families detained at Artesia. She fled Honduras after her partner was brutally stabbed to death by men associated with the MS-13 gang.

She continued to see her partner's killers in the street, and each time they made threats to kill her and her children too. When I asked her if she could have gone to the police for help, Milagro fought back tears as she explained that the police themselves are known to fear this group.

"They are indiscriminate in who they kill," she said to me. "They kill children on the street just for crossing the path in front of them."

Milagro was arrested in Texas soon after completing the 1,600 mile journey from Central America. She was woken up one morning at 5 a.m. for her interview with an asylum officer. She did not understand the purpose of the interview or that her chances of obtaining asylum greatly depended on it. And because she was not provided with any child care, Milagro had to undergo this critical interview with her two toddlers climbing all over her. She told me that she didn't want to talk about her fear in front of her children, and she worried that talking about their father's murder would force them to relive the very nightmare they were trying to escape.

Shortly after her interview, Milagro appeared in front of a judge via web cam without an attorney. Unable to fully explain the reasons she was afraid to be sent back to Honduras, the immigration judge affirmed her deportation order.

We intervened to stop the federal government from violating the due process rights of Milagro's family and many families like hers. All 10 of the Central American women and children who courageously came forward to be plaintiffs in our lawsuit experienced severe violence, yet the government rushed to deport them all. With the help of incredible volunteer lawyers, each of our plaintiffs has received a new interview with an asylum officer. More importantly each plaintiff family has had their deportation order lifted, been released from detention, and is in regular immigration proceedings where, like Milagro, they will have a fair chance to make their asylum claims. Because of these developments, today we voluntarily withdrew our lawsuit, after bringing to light Artesia's unfair deportation practices.

All, however, is still not well.

While the government has closed Artesia, it is still rushing to deport and detain mothers and children who are seeking asylum, and it has opened other family detention centers for this purpose. The ACLU continues to fight these policies, including in our case challenging the government's policy of denying release even to families that have been found to have credible fears of persecution in their home countries.

And for Milagro and her toddlers, the fight continues as well: The government has inexplicably decided to appeal the immigration judge's decision to grant them asylum, and they face yet another uphill battle for a better life.

*Milagro is a pseudonym to protect our client's identity. She is referred to as M.R.R. in the complaint.

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What Should We Think About Big Data That Aims to Help People?

January 29th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

A data analytics company collects a variety of information about individuals in New York City, including demographic data, court records, employment status, education level, age, and any history of interaction with the foster care system or use of homeless shelters (acquired from New York’s Department of Homeless Services). Using a process its CEO compares to a “highly targeted marketing campaign trying to sell something,” the company then analyzes that data to come up with a list of the 30 to 50 people to be targeted for special attention.

In this case, the population that is examined are the roughly 5,000 people each month who receive eviction notices in New York City. The company, a nonprofit called SumAll, uses the analytics to try to predict which of those people are most likely to become homeless as a result of their evictions, and those who are identified receive personalized letters, hotline numbers and other outreach, and are given priority access to eviction counseling by social services workers.

It may be big, bad “big data,” but that doesn’t sound so terrible. What are we to make of this kind of use of analytics?

This system, which is just a pilot project for now, is detailed in reporting yesterday from Next City Daily. In some ways it raises the same issues as the Chicago Police Department’s use of analytics to create a “heat list” of the “most dangerous people in Chicago.” The people so identified received visits from police officers. As I said about that program, there can be a fine line between laudable efforts to identify and help “at-risk youth,” and efforts to tag some people with labels used to discriminate and stigmatize. A key question about the Chicago program is whether being flagged leads to benefits for a person, like support, opportunities, and increased chances to escape crime, or—as there are all too many reasons to believe—sanctions, such as surveillance and prejudicial encounters with the police.

Here we have an example where the consequences of being flagged by these analytics appear to be pretty clearly positive for individuals, so it provides a cleaner example by which to figure out what we think about such uses. I have several initial thoughts about this.

First, the consequences of data mining matter. Big data is a concern because we worry that it will lead to bad things for many people, such as injustice, and that on a broader social level it will further tilt power from the weak to the strong and increase divisions between the haves and have-nots. But where big data analytics is used for purposes that improve people’s lives, that is important.

Of course, even if the immediate consequences of data mining are helpful for its subjects, it is worth keeping an eye on possible negative side effects. Does the program create incentives for ever-increasing data collection or other systematized privacy violations that might hurt many other people aside from those helped? Could the compilation of data even about individuals who are helped be stigmatizing, prejudicial, or otherwise harmful to them in other contexts? And of course, as we know only too well, data that is collected for one purpose can easily be turned to other ends.

Next City Daily reports that the data used in this project is all “public”—I don’t know the details of how such information is handled in municipal governments, and it’s not clear to me exactly what that means here. Where a project like this might involve accessing sensitive private data that it would not already have access to in order to help people, that is where the difficult privacy policy questions are to be found.

Accuracy also matters. In this case analytics appear to have been used to focus and guide an already highly discretionary deployment of limited assistance resources; the consequences of an off-base analysis are probably small since even a flawed algorithm is likely to be better than the laborious, much less effective manual process that it replaced. But where inaccurate analytics result in assistance or other benefits being unfairly diverted from people who otherwise would and should have received them, that might be a different story.

Finally, institutional incentives do matter. The contexts where big data is discussed as a potential threat are those where the interests of those doing the data mining are different (sometimes diametrically so) from the interests of the subjects of the data mining. Government security agencies and others using data for “risk assessment” purposes are trying to decide who should be blacklisted, scrutinized, put under privacy-invading investigatory microscopes, or otherwise limited in their freedom and opportunity. Corporate uses of big data can help customers in some ways and hurt them in others, but in the end companies are out to increase their profits and that means squeezing more money out of customers, and that’s usually a zero-sum proposition.

Government social services agencies, on the other hand, have a mission of helping people. One need not be naïve about the shortcomings of government bureaucracies, which as I argued here are best understood as machinery that mindlessly and expansively follow whatever mission they’ve been given. But the nature of that mission is important. While any agency can exhibit the foolishness and irrationalities we associate with bureaucracies, and must be well-managed and subject to checks and balances, it makes a great difference whether bureaucratic machinery has marching orders such as “collect as much information as you can about everyone who could ever possibly be a terrorist,” or “try to minimize our city’s levels of evictions and homelessness.” Some agencies’ missions simply conflict with individual rights and interests much more than others. (Incidentally, this may be the principal argument for a post-Watergate liberal, as opposed to libertarian, attitude toward government.)

Like so many tools, big data analytics can be used for good or for ill. As I have argued, there are very good reasons to think that its consequences may overall be negative. That does not mean it can’t be put to many good uses, however—though even in those cases the devil can lie in the details.

For-Profit Companies Are Helping to Put People In Jail for Being Poor. I Should Know, I Was One of Them.

January 29th, 2015 No Comments   Posted in ACLU Nationwide
By Kevin Thompson

In December, I was jailed for five days simply because I couldn't afford to pay $838 in traffic fines and fees to DeKalb County and a private probation company called Judicial Correction Services, Inc.

It sounds unbelievable, but that's exactly what happened.

Last summer, I got a traffic ticket just after I pulled my car out of the driveway of my home in Decatur, Georgia. I had no idea that this ticket would eventually land me in the DeKalb County Jail for being poor.

That day, I also didn't know that my driver's license had been suspended. I later learned that it had been suspended because I forgot to submit a form to the Georgia Department of Driver Services after resolving charges related to a minor traffic violation (I missed a "no left turn" sign and appeared late to my court hearing).

Kevin and his dad.

In October, the DeKalb County Recorders Court ordered me to pay $810 in fines related to the ticket. When I told the judge that I could not afford to pay $810 that day, she put me on "probation" with Judicial Correction Services (JCS) and told me that I had 30 days to pay. Like other people who couldn't afford to pay fines on sentencing day, I was on "pay-only" probation. My driver's license was also suspended for another six months.

I did everything I could to pay my court fines and the fees JCS charged me for "probation." Because my license was suspended, I could no longer earn money through paid tow truck driving training, which I had done before. I did odd jobs for an auto shop while looking for work and borrowed money from my mom, sister, and grandmother to pay what I could.

But it wasn't enough.

When my 30 days were almost up, I went to see my JCS officer. She charged me with violating probation for failure to pay court fines and JCS fees. She also failed to tell me that I had a right to request a court-appointed lawyer at my probation revocation hearing. Instead, she said I would have to pay $150 for a public defender, even though the fee is $50 and can be waived for poor people. I didn't have the money to pay, so I didn't request a lawyer.

I dressed in slacks and a dress shirt that I borrowed from my dad, since I didn't have my own, and I went to court with my mother for my probation revocation hearing. I hoped the judge might give me an extension of time to pay or community service because I was trying my best to pay. Instead, the judge immediately asked to hear from the JCS officer next to her, who recommended sentencing me to 10 days in jail if I couldn't pay my balance that day. I begged the judge to help me get a permit so that I could drive for work and to give me some more time to pay. Instead she sentenced me to nine days in jail.

I was stunned. I couldn't believe what happened.

All of a sudden, I realized that my mom was going to see me put in handcuffs and taken to jail. I could feel tears welling up in my eyes. I asked the judge if I could hug my mom. The judge said no. As I was handcuffed and taken to a cage behind the courtroom, I began to cry.

I spent five days in the DeKalb County Jail where it was cold and dirty, and I didn't get enough food. I felt ashamed, scared, and sad during those five days. It hurt to be separated from my family. And even after I was released, I felt scared that police might arrest me and jail me again for no good reason. After all DeKalb County and JCS essentially jailed me for being poor.

What happened to me – and others like me who try their best to pay fines and fees but fall short – is unfair and wrong, but I am standing up for my rights. The Constitution prohibits local governments and for-profit companies from doing what they did to me. I hope this lawsuit will help prevent other people from being jailed just because they are poor.

Kevin Thomson is a plaintiff in Thompson v. DeKalb County.

See more of Kevin's story here.

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No, Senator, You Can’t Have the Torture Report Back

January 28th, 2015 No Comments   Posted in ACLU Nationwide
By Ashley Gorski, Nadine Strossen Fellow, National Security Project, ACLU

The new chairman of a powerful Senate committee wants to ensure that the full Senate torture report, the executive summary of which was released in December last year, never sees the light of day. And he may be getting help from the CIA.   

Sen. Richard Burr (R-N.C.), who now leads the Senate Select Committee on Intelligence, made an unprecedented request to President Barack Obama earlier this month. He asked that the executive branch agencies transfer their copies of the SSCI’s full report on the CIA’s torture program back to the Senate. Several members of the committee and other senators have roundly condemned Sen. Burr’s request for what it is: a naked attempt to keep the full torture report from the American public as well as to prevent democratic accountability for the abuses carried out in our name.     

The timing and the content of Sen. Burr’s request strongly suggest some degree of coordination with executive branch agencies to avoid producing the report in an ACLU Freedom of Information Act lawsuit seeking its release. We are gravely concerned that the CIA and other agencies will return the report in response to Sen. Burr’s letter, and that it might never be released to the public. Last night, we filed an emergency motion asking the court in our case to order that the executive branch agencies retain the full torture report while our lawsuit is pending. 

The full torture report is the product of a multi-year, comprehensive investigation into the CIA’s post-9/11 program of detention, torture, and other abuse of detainees. When the SSCI sent the full torture report to the CIA, the Department of Justice, the Department of State, and the Department of Defense last month, then-SSCI Chairman Dianne Feinstein (D-Calif.) asked that the report be made available “broadly” within the executive branch to help make sure that the CIA’s detention and torture program is “never repeated.” But some of the agencies haven’t even opened the package containing the report, in what seems to be a maneuver designed to evade their FOIA obligations. 

The response to the Senate’s public release of the report’s executive summary shows just how important it is for the full report to be released. The summary describes horrific human rights abuses and a litany of misrepresentations by the CIA. It generated global attention and spurred renewed calls for investigation and prosecution of the architects of the torture program. But like any summary, it omits critical details. That’s why the ACLU is seeking to compel the agencies to release the full report, which spans more than 6,900 pages and provides substantially more detail about the CIA’s deceptions and brutality.

As shown in the executive summary, the CIA has a troubled relationship with the truth in the courts. In one particularly striking example, a CIA attorney expressed concern that a declaration she or he wrote in a different lawsuit was “a work of fiction.” And in this very FOIA case, the CIA told us through government counsel month-after-month that it did not possess the full torture report, until finally it turned out that the CIA did, in fact, have the report, and the government lawyer had to explain: “there was a miscommunication apparently within the agency as to what they were looking for … they didn’t realize that they had it.” 

If the CIA and other agencies send the full report back to the SSCI, the agencies could argue that the court lacks the power to order the committee to produce the report in response to our lawsuit. Our emergency motion seeks to prevent this legal bind and any efforts by the agencies to circumvent FOIA. 

The public is entitled to the entire story about the CIA torture program and its lies to Congress, the White House, and to us. Any attempt to bury the fullest account of the torture program in existence – and a fine example of congressional oversight – undermines the democratic accountability that is necessary to the rule of law.

We’re fighting to prevent that.  

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Cause for Optimism During Weeks of Tragedy for the Trans Community

January 28th, 2015 No Comments   Posted in ACLU Nationwide
By Chase Strangio, Staff Attorney, ACLU

It seems basic enough to ask that one be treated like a human being – that a person’s dignity be honored in life and death.

But tragically for too many transgender people that is still a far off dream.

The past few weeks have witnessed another series of horrors for the transgender community. Three transgender women of color have been murdered: Lamia Beard in Norfolk, Virginia; Ty Underwood in Tyler, Texas; and, Ms. Williams in Louisville, Kentucky. Their murders are part of the systemic violence that trans people experience; violence that is disproportionately levied upon transgender women of color whose lives exist at the intersection of racism, sexism, and transphobia.

Adding further indignity to the violence of their deaths, local media reports have erased the existence and dignity of these fallen sisters referring to them incorrectly as “men dressed as women” and by names that don’t honor who they were in life and death. As Chai Chai Jindasurat, programming coordinator with the National Coalition of Anti-Violence Programs, told BuzzFeed News: “The harm of the media misgendering and victim-blaming is that it sends a message to the public that these homicides are not as serious, and that somehow transgender people deserve it.”

Are the lives of trans people less worthy of respect in life and dignity in death?

Sadly, this is the message that many trans people receive.  It was the message that teenager Leelah Alcorn received before taking her own life and leaving the message that “The life I would've lived isn't worth living in… because I'm transgender.

Thankfully, despite this violence and ongoing efforts to demean and erase trans people – like this Oklahoma bill that would require people to disclose whether they have had “sex reassignment surgery” when seeking a marriage license – the trans community continues to show incredible resilience in fighting back.

This week, in the midst of the violence the community has faced, we also received word of a key victory in the fight against police profiling of transgender women of color as sex workers.

A superior court judge reversed the conviction of Monica Jones, a black transgender activist, who was found guilty in April 2014 at a bench trial of “manifesting” intent to solicit an act of prostitution. This reversal comes after mobilized efforts, led by Monica, to draw attention to the targeting of trans women for arrest by police in Phoenix and across the country. With the support of Laverne Cox, the ACLU, and others, Monica used her story to speak for so many others suffering the injustices she had experienced.

Of her victory, Jones said:

“My conviction being vacated is important, but it is a small win in our larger fight for justice. There are so many trans women and cisgender women who might be charged under this law in Phoenix and similar laws across the country. There is so much more work that needs to be done so that no one will have to face what I have, no matter who they are or what past convictions they have.”


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DEA Planned to Monitor Gun Show Attendees With License Plate Readers, New Emails Reveal

January 27th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Bennett Stein, ACLU Speech, Privacy, and Technology Project & Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

The Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives collaborated on plans to monitor gun show attendees using automatic license plate readers, according to a newly disclosed DEA email obtained by the ACLU through the Freedom of Information Act.

The April 2009 email states that “DEA Phoenix Division Office is working closely with ATF on attacking the guns going to [redacted] and the gun shows, to include programs/operation with LPRs at the gun shows.” The government redacted the rest of the email, but when we received this document we concluded that these agencies used license plate readers to collect information about law-abiding citizens attending gun shows. An automatic license plate reader cannot distinguish between people transporting illegal guns and those transporting legal guns, or no guns at all; it only documents the presence of any car driving to the event. Mere attendance at a gun show, it appeared, would have been enough to have one's presence noted in a DEA database.

Responding to inquiries about the document, the DEA said that the monitoring of gun shows was merely a proposal and was never implemented. We were certainly glad to hear them say this, as we had rationally, based on the scrap of information left unredacted in the document, concluded that gun show monitoring was underway. After all, this would not be the first time that the government has used automatic license plate readers to target the constitutionally protected right to assemble. In 2009, the Virginia State Police, in collaboration with the Secret Service, recorded the license plates of vehicles attending President Obama’s inauguration, as well as campaign rallies for Obama and vice presidential candidate Sarah Palin. And unfortunately our security agencies — yesterday and today — have shown a pattern of engaging in systematic surveillance of peaceful assembly.

The DEA’s statement alleviates some concerns, but if the program was cancelled, why didn’t we get any documents reflecting that decision in response to our FOIA request? The agency should now release such documents, and also create and release a written policy that it will not target First Amendment-protected activity in the future.

While in general we have not opposed the use of ALPRs for their stated purpose of checking plates against "hot lists" of known or suspected lawbreakers — provided the data on everyone else is not retained — we have serious concerns about using the technology in a way that is specifically targeted at people exercising their constitutionally protected rights.

In 2012, the ACLU filed public records requests in 38 states and Washington, D.C. seeking information about the use of automatic license plate readers. Our July 2013 report, You Are Being Tracked, summarized our findings. But the ACLU also filed FOIA requests with federal agencies, including the DEA.

Automatic license plate readers must not be used to collect information on lawful activity — whether it be peacefully assembling for lawful purposes, or driving on the nation's highways. Without strong regulations and greater transparency, this new technology will only increase the threat of illegitimate government surveillance.

FOIA Documents Reveal Massive DEA Program to Record American’s Whereabouts With License Plate Readers

January 26th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Bennett Stein, ACLU Speech, Privacy, and Technology Project & Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

(Updated below)

The Drug Enforcement Administration has initiated a massive national license plate reader program with major civil liberties concerns but disclosed very few details, according to new DEA documents obtained by the ACLU through the Freedom of Information Act.

The DEA is currently operating a National License Plate Recognition initiative that connects DEA license plate readers with those of other law enforcement agencies around the country. A Washington Post headline proclaimed in February 2014 that the Department of Homeland Security had cancelled its “national license-plate tracking plan,” but all that was ended was one Immigrations and Customs Enforcement solicitation for proposals. In fact, a government-run national license plate tracking program already exists, housed within the DEA. (That’s in addition to the corporate license plate tracking database run by Vigilant Solutions, holding billions of records about our movements.) Since its inception in 2008, the DEA has provided limited information to the public on the program’s goals, capabilities and policies. Information has trickled out over the years, in testimony here or there. But far too little is still known about this program.

In 2012, the ACLU filed public records requests in 38 states and Washington, D.C. seeking information about the use of automatic license plate readers. Our July 2013 report, You Are Being Tracked, summarized our findings with regard to state and local law enforcement agencies, finding that the technology was being rapidly adopted, all too often with little attention paid to the privacy risks of this powerful technology. But in addition to filing public records requests with state agencies, the ACLU also filed FOIA requests with federal agencies, including the DEA.

The new DEA records that we received are heavily redacted and incomplete, but they provide the most complete documentation of the DEA’s database to date. For example, the DEA has previously testified that its license plate reader program began at the southwest border crossings, and that the agency planned to gradually increase its reach; we now know more about to where it has grown. The DEA had previously suggested that “other sources” would be able to feed data into the database; we now know about some of the types of agencies collaborating with the DEA.

The documents uncovered by our FOIA request provide additional details, but their usefulness is limited by the DEA’s decision to provide only documents that are undated or years old. If the DEA’s collection of location information is as extensive as the agency has suggested in its limited comments to legislatures, the public deserves a more complete and comprehensive explanation than the smattering of records we have obtained can provide.

These records do, however, offer documentation that this program is a major DEA initiative that has the potential to track our movements around the country. With its jurisdiction and its finances, the federal government is uniquely positioned to create a centralized repository of all drivers’ movements across the country — and the DEA seems to be moving toward doing just that. If license plate readers continue to proliferate without restriction and the DEA holds license plate reader data for extended periods of time, the agency will soon possess a detailed and invasive depiction of our lives (particularly if combined with other data about individuals collected by the government, such as the DEA’s recently revealed bulk phone records program, or cell phone information gleaned from U.S. Marshals Service’s cell site simulator-equipped aircraft ). Data-mining the information, an unproven law enforcement technique that the DEA has begun to use here, only exacerbates these concerns, potentially tagging people as criminals without due process.

Some major findings from the documents

The National License Plate Recognition Initiative includes a massive database containing data from both DEA-owned automatic license plate readers and other readers. Among the findings from the FOIA documents:

  • At the time of an undated slideshow, the DEA had deployed at least 100 license plate readers across the United States (eight states are identified: California, Arizona, New Mexico, Texas, Florida, Georgia, Nevada, and New Jersey). A 2010 document also explains that the DEA had by then set up 41 plate reader monitoring stations throughout Texas, New Mexico, and California.
  • The DEA is also inviting federal, state, and local law enforcement agencies around the country to contribute location information to the database. For example, the documents show that local and regional law enforcement systems in Southern California’s San Diego and Imperial Counties and New Jersey all provide data to the DEA. The program was “officially opened” to these partners in May 2009. Other agencies are surely partnering with the DEA to share information, but these agreements are still secret, leaving the public unable to know who has their location information and how it is being used.
  • Customs and Border Patrol (CBP) is one of the federal agencies that has shared information with the DEA. An undated Memorandum of Understanding explains that the agencies will, “at regular intervals,” provide each other license plate reader data. It also authorizes the two agencies to further share each other’s data with other federal, state, and local law enforcement and prosecutors as well as to “intelligence, operations, and fusion centers.” This is a lot of location points. CBP collects “nearly 100 percent of land border traffic,” which amounts to over 793.5 million license plates between May 2009 and May 2013, according to CBP’s response to our FOIA request.
  • Additionally, any federal, state, or local law enforcement agent vetted by the DEA’s El Paso Intelligence Center can conduct queries of the database, located in Merrifield, Va.
  • The same undated slideshow suggests that there were over 343 million records in the database at the date of the slide’s publication (due to redactions, it is impossible to confirm that date from this document).
  • The unredacted parts of the documents and news reports suggest that the DEA recently changed its retention policy to six months for non-hit data. While this is an improvement from previous statements of DEA retention policy, it is still far too long. The government should not collect or retain information revealing the movements of millions of people accused of no crime. But even that long retention period is only meaningful if it comes with strict rules limiting data use, sharing, and access. Like its retention policy, the DEA should make these policies public.
  • The DEA says that the National License Plate Recognition Initiative targets roadways that the agency believes are commonly used for contraband transport. But it’s not clear what this means or what it is based on. Every highway in the United States must be regularly used for contraband transport. Is the DEA using this undefined mandate to target people of color? Without more information from the DEA, we have no idea.
  • One DEA document references steps needed to ensure the program meets its goals, "of which asset forfeiture is primary." Asset forfeiture has been in the news a lot lately, criticized as a widely abused law enforcement tactic that doesn’t advance public safety but simply enriches police and federal agencies.
  • The program also apparently data mines license plate reader data "to identify travel patterns." The extent of this data mining is unknown. Is the DEA running all of our license plate reads through a program to predict our likelihood of committing a crime? Are we all suspects if we drive on a certain road? What else does the DEA think it knows about us just from the collection and analysis of our locations via license plate reader data?

More answers are needed

The DEA’s license plate reader programs raise serious civil liberties concerns, and the agency should be open about what it is doing so that those activities can be subject to public debate. Among other questions, the agency should answer these:

  • How many license plate readers does DEA currently own and operate? In which states? And, how much did it spend on these license plate readers?
  • Which policies govern the use of the license plate readers? Which policies govern the use of the license plate reader database? Has the agency done a Privacy Impact Assessment on these programs?
  • How many license plate reader hits have resulted in arrest and prosecution of a serious crime? How many license plate reader hits have not correlated to an alert upon further investigation (a “mis-hit”)?
  • From which local, state, and tribal law enforcement agencies does the DEA receive license plate reader data?
  • Which additional agencies does the DEA partner with? How many people have been approved to conduct queries of the DEA database?
  • Has the DEA used or attempted to use Vigilant Solution’s National Vehicle Location Service or a similar privately-run license plate reader database? Does DEA combine information from its own database with records in Vigilant’s, creating a mega-database in a public-private surveillance partnership?

As is the case with most police and federal law enforcement spy technologies, license plate tracking programs have flown under the radar of courts and legislators for far too long, silently collecting records about ordinary Americans in the cover of secrecy. When programs are secret, we have no way of challenging them or ensuring they conform with our values and the law. Before accountability comes transparency. Over the coming weeks, we will continue to release records documenting the federal government’s significant investment in automatic license plate readers and its unregulated and largely unseen location tracking programs.

Here are the documents discussed in this piece (we also link to them above): 

2010 DEA Email
Undated slideshow

October 2011 DEA email
April/May 2010 DEA emails
May 2010 DEA emails
March 2014 DEA Response to ACLU FOIA Request, assorted emails
October 2011 DEA emails
January 2014 CBP Response to ACLU FOIA Request

Update (1/28/15):

EFF's Dave Maass alerted us that he has found additional documentation of the DEA's license plate reader infrastructure. The document details a proposed contract to provide maintenance and support for “currently deployed” license plate readers.

The system that is described includes: 53 fixed cameras, 24 barrel cameras, and 47 license plate reader trailers. These cameras are distributed in 12 locations in East Texas, 21 location in West Texas and New Mexico, 6 locations in Arizona, and 6 locations in California.

It is unclear what the status of the contract is. It is also unclear if this contract would cover all of the cameras in the region, and whether there are other regions with many cameras. As we point out above, the public should not be forced to guess the scope and details of this program just based on clues left around the internet or left unredacted in FOIA documents.

On Women’s Health, the House Trades One Bad Idea for Another

January 26th, 2015 No Comments   Posted in ACLU Nationwide, Washington Markup
By Georgeanne M. Usova, Washington Legislative Office

Watching Congress' actions toward women last week might leave you confused about what year it is. Instead of advancing a single policy designed to help women, the U.S. House of Representatives has chosen to attack women's health any way it can.

Even after House leadership was forced to abandon plans for a vote on a nationwide abortion ban bill, because it was so extreme that women in the GOP caucus rejected it, the House didn't stop there. Instead, it quickly swapped out one bad bill for another and passed a harmful ban on abortion coverage. This bill would eliminate health insurance coverage for abortion for millions of women, effectively robbing them of the ability to access the care they need.

Medical experts immediately condemned the House leadership for substituting politics for science and jeopardizing women's health. "All women should have access to the medical services they need – including reproductive care – regardless of the ability to pay," said Dr. Hal C. Lawrence, executive vice president and CEO of the American Congress of Obstetricians and Gynecologists. "Medical care must be guided by sound science and by the patient's individual needs, not by legislative mandates or financial concerns."

Yet it's clear that for far too many legislators restricting women's access to safe, legal abortion is their top priority. So here's the big question: Why are some politicians so intent on passing them? The answer couldn't be any clearer – these politicians want to get one step closer to banning all abortion, and they will stop at nothing to do just that.

In just a few weeks, the new Congress has already introduced a slew of bills designed to restrict a woman's access to abortion. Among these is a bill that would block funding to organizations that provide crucial reproductive health care to low-income women, like Planned Parenthood. This also includes a bill that would allow hospitals to refuse to provide an abortion to a woman experiencing a serious pregnancy complication and a bill that would target abortion providers with unnecessary and burdensome requirements like those that have decimated access to abortion in Texas.

In short, Congress is committed to turning back the clock for women by introducing more and more hurdles to safe and legal abortion access. This is ideology run amok, as Americans of all parties agree that this is the wrong way for their elected officials to spend their time.

Luckily some members of Congress are listening. The Women's Health Protection Act was reintroduced last week in both the House and Senate. That bill would ensure that a woman's access to safe, legal abortion does not depend on her zip code. Both chambers honored last week's 42nd anniversary of the U.S. Supreme Court's historic decision in Roe v. Wade with a resolution in support of legislation that allows women to plan their families and futures by expanding access to comprehensive reproductive health care.

Extremists in Congress have sent a clear signal that they won't let up on attempting to restrict women's rights any time soon. They have already said that they still intend to bring up a 20 week ban for a vote soon, even though it's clear that interfering with women's personal medical decisions is a failing agenda.

We can't let this Congress send extreme anti-women's health bills to the president's desk. If you agree, tell Congress to stand against extreme attempts to restrict women's reproductive rights.

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Will Justice Scalia Be the Savior of the Fair Housing Act?

January 23rd, 2015 No Comments   Posted in ACLU Nationwide
By Rachel Goodman, Staff Attorney, ACLU Racial Justice Program

Going into this week's argument in Inclusive Communities Project, a Supreme Court case that will determine the future of the Fair Housing Act, all eyes were on Justice Kennedy. It's often Justice Kennedy who casts the deciding vote in cases about the strength and breadth of civil rights laws. As those of us in the courtroom waited for the justices to take the bench, we were eager to hear what questions he would ask.

But, instead, Justice Scalia turned out to be the center of attention. Almost as soon as the Texas attorney general stepped up to the podium to argue for a weakened Fair Housing Act, Justice Scalia started asking him some seriously hard questions.

Most importantly, Justice Scalia pointed out that when Congress amended the Fair Housing Act in 1988, it incorporated language that wouldn't make any sense without the disparate impact standard, which prohibits policies that have a discriminatory impact, regardless of whether those practices were adopted with a discriminatory intent. He suggested that this language alone might "kill" Texas's case. And Justice Scalia did not seem at all convinced by the attorney general's answers. In fact, he stated at one point that he found it "hard" to read the statute "in any other way than there is such a thing as disparate impact."

Texas then tried to argue that the disparate impact standard would violate the Constitution's guarantee of equal protection, by forcing landlords, banks, and governments to consider the racial impact of their policies. Of course, that argument only makes sense if you think that the equal protection clause, which exists substantially to protect people of color from racial discrimination, is actually offended by policies that seek to guard against racial discrimination. We don't.

And, coming out of the argument, it certainly looks like the straightforward text of the Fair Housing Act could carry the day. That's important because we still have a long way to go before we achieve the goals Congress had when it passed the act. As Justice Ginsburg put it yesterday, Congress "meant to undo generations of rank discrimination" and "to replace ghettos by [ ] 'integrated living patterns.'"

Much of this country is still deeply segregated, and that segregation enables a host of other problems that we're struggling with, among them discriminatory policing, astounding pollution in communities of color, and, as the ACLU described in its amicus brief in this case, the targeting of those communities by predatory lenders. On top of problems related to racial segregation, the law's disparate impact standard helps us deal with housing discrimination against people with disabilities and victims of domestic violence. To fix all that, we need the strongest possible Fair Housing Act.

Let's hope Justice Scalia helps stop Texas from watering it down.

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