By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office
The people have spoken. And, today, the Federal Communications Commission listened. A majority of FCC commissioners voted in favor of historically strong open Internet rules.
It appears they have done what the ACLU and other free speech groups have been suggesting for years: put net neutrality rules on firm legal footing to prevent large internet companies from using their market power to extract money from content companies that rely on their networks to reach Internet users.
But some in Congress are looking to roll back these protections. Tell them you won't stand for it.
These are key protections for free speech online.
As the Internet has grown from dial-up to broadband, the underlying telecommunications providers have become the "gatekeepers" between content providers like Google or Netflix and their consumers. Further, because few companies have the infrastructure to carry the vast amount of data we consume every day, there's not that much competition for high speed broadband. That gives these gatekeepers an enormous amount of economic power over the content and service side of the internet.
To check that power in the public interest, the FCC will "reclassify" Internet service under Title II of the Communications Act, which applies to things like landline telephone and wireless voice services. Doing so will very likely mean that the new rule will be sufficient to ensure that Internet service providers can't slow down lawful services, charge big companies extra to reach consumers faster on a digital fast lane, or block services that are either controversial or compete with the ISP.
Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel deserve major plaudits for voting in favor of these strong, and legally defensible, network neutrality rules.
Today's proposal will apply only those regulations that are absolutely necessary to address the problem, while still providing ample space in the market for broadband providers to invest in new capacity and to promote broadband adoption. That said, it's worth noting that there is at least one new rule we'll need to look at carefully. As our friends over at EFF explain, the proposal includes an "open internet conduct standard," which sounds quite vague and could result in undue regulation of the Internet in the future.
Also, despite today's good news, there's more work to be done. Some companies and trade groups are likely to challenge the rule in court, and Congress is also threatening to gum up the works. Legislation is pending that would gut the new rule, and one senator has gone so far as to call the regulations "Obamacare for the internet."
The FCC did something very rare in Washington this week. It did the right thing by listening to the millions of Americans – including tens of thousands of ACLU supporters – that demanded a free and open internet. And it also made an awfully shrewd political move. Although the large broadband providers have pilloried the commissioners who voted for the rule today, a vastly more powerful constituency, the American public, is foursquare behind the commission.
There's a great line in the movie Serenity: "If you can't do something smart, do something right." The FCC did both today.
By Galen Sherwin, ACLU Women's Rights Project
Late last year, Shahzeen Karim, an Illinois attorney and applicant to the Texas bar, tweeted: "Real time: Told TX #barexam will not accommodate me nursing/pumping my baby, due Feb 7th. Option? Pump in bathroom during break for 3 days."
Needless to say, she did not view this as an acceptable option – and she decided not to take "no" for an answer.
The Texas bar exam was scheduled less than three weeks after her baby was due. She wasn't certain she was going to be sitting for the exam at all, given how close it was to her due date. Because Shahzeen has another child whom she breastfed, she knew that her newborn would just be establishing a breastfeeding schedule and that she would likely be nursing around the clock. But at least she wanted to have the option of taking the test if everything went well.
If this was going to work at all, Shahzeen knew she would need to pump breast milk during the grueling, multi-day exam. If not, she would be in serious pain and at risk of infection (which is what happens if breastfeeding moms don't pump when their babies would normally nurse). She would also run the risk of not having enough milk for her baby while threatening her milk supply.
Furthermore, Shahzeen would need additional break time to take care of other necessities (like eating and going to the bathroom—you, know, details) and a private place so she could pump in peace. She did not want to have to go through the experience of pumping on the floor of a public restroom, while all the other test-takers lined up waiting for a stall during the allotted break period – an experience not exactly conducive to either pumping or excelling on grueling licensure examinations like the bar.
Shahzeen had also heard that the Illinois Board of Bar Examiners had just granted another woman, Kristin Pagano, the same type of accommodations for nursing. After receiving a letter from the ACLU of Illinois, the board decided to go further and change their policies so that anyone who needed this type of testing modification would receive it.
So Shahzeen promptly sent a letter to the Texas Board of Law Examiners, making the case for why she should be allowed additional break time and a private place to pump breast milk. And her letter did the trick – the board agreed to grant her the accommodations she requested.
She tweeted, "Ecstatic! TXBd approved my nursing accommodation during the #barexam. Big thanku 2 @KPaganoEsq 4 paving the way in IL! #pregnant&winning" and "thank u to the @ACLU for offering their help! Hopefully more nursing mothers won't hv 2 put their careers on hold for any more exams!"
But Shahzeen is not stopping there. Like Kristin Pagano, she wants the Texas Board of Law Examiners to make the same accommodations available to all applicants who need them – that's why she reached out to the ACLU for help.
On Monday, we sent a letter to the Texas Board of Law Examiners asking them to change their policies on granting accommodations for pumping – and, like Shahzeen, we won't take "no" for an answer.
Lend your voice in support by signing this petition.
Do you have a story about needing accommodations for pumping during a standardized or licensure test? Tell us your story!
By Julia Harumi Mass, Staff Attorney, ACLU of Northern California & Hugh Handeyside, Staff Attorney, ACLU National Security Project
The federal government will have to produce information on a vast and secret domestic surveillance program and defend the program's legality in open court. That's the result of a decision issued Friday by the federal judge presiding over our lawsuit challenging the Suspicious Activity Reporting program, part of an ever-expanding domestic surveillance network established after 9/11.
The program calls on local police, security guards, and the public — our neighbors — to report activity they deem suspicious or potentially related to terrorism. These suspicious activity reports ("SARs" for short) are funneled to regional fusion centers and on to the FBI, which conducts follow-up investigations and stockpiles the reports in a giant database that it shares with law enforcement agencies across the country.
The decision is significant.
Surveillance programs have largely been shielded from judicial review, as many courts have accepted the government's position that people cannot prove they have been under surveillance, and thus lack standing to sue. In this case, we represent clients who were confronted by law enforcement or know that SARs were uploaded to a counterterrorism database based on their entirely lawful activity. The government will now have to turn over information about a program that has never been subject to public scrutiny.
The problems with the Suspicious Activity Reporting program are manifold, beginning with the fact that government doesn't require reasonable suspicion of criminal activity — an already low threshold — for a SAR to be maintained and shared. That violates a binding federal regulation, which is part of the basis for the lawsuit.
Because the government's loose standards define practically anything as suspicious, SARs end up targeting innocent, First Amendment-protected conduct and inviting racial and religious profiling. Some of our clients, who you can read about here, have been reported for taking photographs. We believe that others were targeted because of racial or religious bias.
The SARs program calls to mind another initiative that is currently all the rage within the government: countering violent extremism, or "CVE." A key part of the CVE initiative would encourage teachers, religious leaders, and even parents to monitor and report to law enforcement individuals at potential risk of drifting toward violent extremism. Like the SAR program, the CVE initiative uses vague, expansive guidelines to decide what should be monitored — factors that can include expressing political or religious beliefs. Under CVE, normal teenage behavior could be an indicator of the potential to engage in terrorism.
The National Counterterrorism Center has even proposed a system for rating individuals on things like "connection to a group identity," families on "parent-child bonding," and communities on access to health care and social services, in order to produce a numerical score reflecting the risk of "susceptibility to engage in violent extremism."
Reducing individuals, families, and communities to a risk score based on subjective assessments of their health and well-being – or perfectly innocuous activity – is both repugnant and unsupportable. Like many of our nation's post-9/11 national security programs, and despite assurances to the contrary, the focus of the CVE initiative has clearly been on American Muslim communities, increasing the stigma to which they have been subjected and their distrust of law enforcement.
Friday's ruling in our SARs challenge is a step toward transparency and accountability. We'll now have the opportunity to seek information from the government on the scope and effects of the SARs program — an opportunity the public should have had before the program was implemented. All indications are that the CVE initiative requires the same public scrutiny too.
By Carl Takei, ACLU National Prison Project
Originally posted on The Marshall Project.
Life inside the infamous Willacy immigration prison.
No one who has been to Willacy County Correctional Center or the other dozen private, for-profit "criminal alien requirement" prisons around the country could have been surprised by this weekend's riot. As many as two-thirds of the men incarcerated at Willacy refused to participate in work details and then set fire to three of the ten housing tents, apparently in protest of poor conditions.
The Management & Training Corporation — the nation's third-largest private prison company — houses most of the roughly 2,800 men at Willacy not in buildings, but in ten Kevlar tents that contain all but a few hundred of the prison's approximately 3,000 beds. You get a cell only if you're sent to solitary, which can happen for no reason other than that there are too many prisoners to fit in the tents (each tent is filled with about 200 closely-spaced bunks).
The CAR detention center, outsourced by the federal Bureau of Prisons, house low-custody (i.e., those whom the authorities consider generally well-behaved), non-U.S. citizens who are serving sentences for federal crimes. They essentially fall into two groups of people: immigrants serving time for drug offenses, and immigrants serving time for the felony of reentering the United States after they had previously been deported.
There are thirteen CAR prisons holding around 25,000 people nationwide, spread across Georgia, Mississippi, New Mexico, North Carolina, Oklahoma, Pennsylvania, and Texas. The amount of time people spend in the facilities varies widely depending on why they landed there. Sentences for illegally reentering the United States average around 18 months. Thanks to mandatory minimums, prisoners serving sentences for drug offenses can spend decades in a CAR prison.
In 2013, I visited Willacy to interview prisoners as a part of the ACLU's report on the five CAR prisons in Texas. The 2014 report was based on nearly five years of interviews and document review. We found that men held in these private prisons are subjected to shocking abuse and mistreatment, including getting thrown into isolation cells for complaining about bad food and poor medical care, being denied both urgent and routine medical care, and being cut off from contact with their families. Bureau of Prisons policies also exclude immigrants from many types of rehabilitative programs — schooling, vocational training, and the like.
At Willacy, the men we spoke to described squalid and overcrowded conditions in the prison's tents, with insects crawling into their bunks and malfunctioning toilets constantly backing sewage water into the living areas. When people protested to get the toilets fixed, the protest leaders were locked in isolation cells.
The Bureau of Prisons' contracts with private prison companies have contributed to such circumstances by exempting the companies from complying with most bureau policies, creating financial incentives to overcrowd the facilities up to 115 percent of the originally contracted capacity, and setting perverse incentives to overuse solitary cells. For the last decade, the contracts have had a quota requiring at least 10 percent of the prison to be devoted to isolated confinement, which is nearly double the percentage of prisoners kept in isolated confinement at facilities managed by the Bureau of Prisons. (Last summer the bureau reduced the quota to 5 percent.) The social media comments from Management & Training Corporation guards and former guards suggest that a toxic corporate culture may also be to blame.
MTC built Willacy in 2006 as an Immigration and Customs Enforcement (ICE) detention facility to hold people in civil deportation proceedings. Following widespread condemnation by nonprofit organizations and a Frontline report about sexual abuse at Willacy that included multiple allegations of guards forcing themselves on detained women, ICE ended its contract. But barely a month after the last detainees left, MTC announced that it had signed a new, $532-million contract with the Bureau of Prisons to reopen as a CAR prison.
CAR prisons didn't exist before 1999, but the program has grown rapidly as the lines between immigration enforcement and the federal criminal justice system have grown increasingly blurred. Traditionally, federal authorities handled immigration cases through the comprehensive enforcement scheme available under civil immigration laws. In the past decade, however, new federal policies demanding aggressive use of the criminal justice system for immigration enforcement have caused the number of criminal prosecutions for unlawful border crossing to skyrocket. The tipping point came in 2009 when, for the first time, more people went to federal prison for immigration offenses than for violent, weapons, and property offenses combined. Between October 2012 to September 2013, more than half of all federal criminal prosecutions initiated nationwide were for illegally entering or reentering the United States.
If ICE's civil detention system is closed to outsiders and too often evades sunlight, then the CAR prisons exist entirely in the shadows. Although the isolated locations of ICE detention facilities often make it difficult for attorneys and family members to meet with detainees, the situation is far worse at CAR prisons. At one, the warden denied the ACLU's request for attorney visitation with a curt letter demanding to know why our meetings with prisoners "might be appropriate" and asserting that the Bureau of Prisons' policies allowing confidential attorney visits "do not apply at this facility." (His intransigence was rewarded; later that year, the warden was promoted to a managing director position at his private prison company.)
When we were able to interview prisoners, they described not only abuse and mistreatment, but a system that made it difficult or impossible for them to even complain about their mistreatment. Grievance systems often allowed no appeals above the private prison warden. Some staff refused to accept grievance forms written in Spanish — a particularly effective way of quashing grievances for a population of largely Latino immigrants. Many prisoners reported that they were threatened with solitary confinement — and in some cases, actually thrown in isolation cells—for assisting others with drafting grievances or filing lawsuits.
And the Bureau of Prisons' oversight mechanisms offer little protection. In one case, the agency renewed a private prison contract even after its own monitors noted that the prison was "unable to successfully achieve their own plans of action to correct deficient areas." The conclusion: "Lack of healthcare has greatly impacted inmate health and wellbeing." Since then, the ACLU has continued to receive reports of medical understaffing, the spread of contagious diseases, policies that obstruct access to medical care, and even deaths at this prison.
As Martin Luther King, Jr. observed in a different context, "a riot is the language of the unheard." Willacy is the third CAR prison to experience a major uprising in the past several years. In 2009, prisoners at a CAR prison in Pecos, Texas, took guards hostage and set fire to the prison to protest the death of Jesus Manuel Galindo, who died from a seizure while in solitary confinement. In 2012, prisoners at a CAR prison in Natchez, Mississippi, rioted and killed one guard after their protest of bad food, poor medical care, and mistreatment by staff spiraled out of control.
The same perverse incentives to cut corners, and the same silencing of prisoners, exist at each CAR prison; any one of them could be the site of the next major uprising.
By Marshall Thomas, ACLU Criminal Law Reform Project
That's the number of people imprisoned in America's jails "on any given day," according to the Vera Institute of Justice's new report on America's swollen jail system. While too little attention has been paid to the size and deplorable conditions of our prisons, even less light has been cast on the ills of our nation's jails.
Stuck in jail and awaiting trial, the Vera report provides a sharp reminder that thousands of Americans – disproportionately people of color – are lost in the criminal justice maze without much hope of escape.
In theory, jails are meant to house narrow categories of arrestees: those considered too dangerous to release, those determined to be flight risks, and those serving a short sentence. (Though commonly conflated, prisons are different from jails in that they almost exclusively house people serving sentences of over one year.) Yet according to the report, 75 percent of people in jail are detained for nonviolent misdemeanors, namely small-scale drug possession, petty theft, or minor property damage. These are hardly the people we need to keep locked up.
Defenders of the status quo might think that the majority of our jail population is made up of people who have already been convicted. But that isn't the case either. In fact, 62 percent of people in jail have not yet been proven guilty. So if they're not dangerous, and they're presumed innocent, why are they languishing in a jail cell?
Too often, the answer is directly related to poverty, not public safety.
Insurmountable financial obstacles are key contributors to the rise in jail populations. For one, low-income defendants are often trapped by their inability to afford bail. Bail should not be used to punish people, and incarcerating people solely because they cannot pay for their release violates the 14th Amendment's equal protection clause.
Bail's primary purpose is to ensure that the accused appear in court, but bail figures often wildly surpass the amount needed to accomplish that goal. The Vera report notes that in New York City in 2013, "more than 50% of jail inmates held until case disposition remained in jail because they could not afford bail of $2,500 or less. Most of these were misdemeanor cases."
Furthermore, the average bail amount for felony defendants jumped 43 percent from 1992 to 2009, despite the absence of empirical evidence supporting the need for higher bail. What's worse, bail amounts are not necessarily set in relation to an individual's ability to pay; rather, they are often arbitrary and even, at times, unconstitutionally determined only by a fixed bail schedule.
Beyond bail, unfair fees and fines – and the rising trend of "offender-funded" justice – act as another set of bars keeping defendants locked up. A rash of state and local governments have responded to budget squeezes by forcing the costs of courts and jails onto defendants, charging them for services like room and board in jail, medical care, and even the use of a public defender. (These practices imitate those of private probation, detention, and bail bonds companies.) The people accused of crimes in state and local courts are often the people for whom these costs impose the greatest financial hardship.
Indeed, for many, poverty is at the root of their involvement in the criminal justice system in the first place, as shown in the Vera report, a recent ACLU lawsuit in Georgia, and elsewhere. As a result, an inability to pay these fees and fines needlessly keeps poor defendants in jail — or sends them back — while their richer counterparts walk free because they can afford proper representation. Adding to these injustices, as with so many criminal justice, economic, and social policies, the myriad problems with our jail system disproportionately harm communities of color.
The Vera report is chock full of local success stories and practical recommendations, from simply making fewer arrests to establishing pretrial diversion programs to reforming the burdensome monetary obligations discussed above. In addition, we can help reduce jail populations by strengthening indigent defense systems to ensure that anyone facing deprivation of their liberty is promptly afforded appointed counsel that can help them obtain release. The loss of human capital as a result of our current system is too costly for America to bear – these people have the potential to be activists, educators, and parents. We should harness that potential rather than quashing it.
Most people in jail aren't dangerous, and they can be expected to show up to court. Yet every day tens of thousands of people – presumed innocent – are being incarcerated unnecessarily and unfairly while awaiting resolution of their case. With the right reforms, we save money, reduce the enormous harm caused by unwarranted detention, and lower our jail populations, allowing many of the 731,000 people waiting in jail right now to return to their homes and families.
By Jamil Dakwar, Director, ACLU Human Rights Program
Should we take the Department of Justice's word on how federal prosecutions of police officers are being conducted and resolved, or do we need to see the data?
After a police officer is accused of a crime and the Department of Justice decides to investigate, virtually no data is available on how many officers are convicted or dismissed of these charges – or even what crimes police were charged with in the first place.
Recently during a hearing before the Inter-American Commission on Human Rights, U.S. Attorney of the Southern District of Ohio Carter Stewart stated:
In the past 5 fiscal years, the Department of Justice's Civil Rights Division has opened over 20 investigations into police departments to address unconstitutional policing practices—more than twice as many investigations than were opened in the previous 5 fiscal years… In addition to this civil work, we have criminally prosecuted 337 individual police officers for misconduct in the last 5 years. The Department believes in broad reform as a key tool to addressing racial tensions in the justice system.
While the Department of Justice provides detailed information on its pattern and practice investigations and settlements against police departments, very little data or documents have been provided to back up the numbers of federal criminal civil rights prosecutions or to see how they have changed over time.
The ACLU, in the fight for transparency and police reform, filed a Freedom of Information Act request with the Justice Department. The request is in search of information regarding the number of federal criminal civil rights prosecutions, including convictions, acquittals, and dismissal of charges brought against police officers within the last five years. Among other records and documents, the request demands data related to federal prosecutions for excessive use of force and killings of people of color and persons with mental disabilities.
In addition to the ACLU's work, the U.N. has been very critical of the Justice Department's failure to provide further information or statistics on the details of criminal civil rights prosecutions of police officers.
While noting the information provided by the delegation that over the past five years 20 investigations were opened into allegations of systematic police department violations, and over 330 police officers were criminally prosecuted, the Committee regrets the lack of statistical data available on allegations of police brutality and the lack of information on the result of the investigations undertaken in respect of those allegations.
There remains an urgent need for national comprehensive data on police use of force and accountability measures taken to combat impunity. Providing more data regarding federal prosecutions involving police officers who abuse their power is a critical step toward building a culture of transparency and accountability for policing in America and helps the U.S. comply with its international human rights obligations, especially concerning policies and practices around the use of force by law enforcement officers.
Americans put a lot of faith in police. The Department of Justice should reward it by assuring the public that it does its very best to remove police officers from the job who can no longer be trusted with a badge and a gun. Democracy and public safety demand it.
From inside the United States Disciplinary Barracks at Fort Leavenworth, Kansas, where she is serving a 35-year prison sentence, that is precisely what convicted Wikileaker Chelsea Manning has been doing – fighting for her existence.
Since first being diagnosed with gender dysphoria in 2010, Chelsea has struggled to be recognized and affirmed by the government, the public, and even some of her supporters, as Chelsea.
In a December op-ed published in the Guardian, she reflected:
We should all have the absolute and inalienable right to define ourselves, in our own terms and in our own languages, and to be able to express our identity and perspectives without fear of consequences and retribution. We should all be able to live as human beings – and to be recognized as such by the societies we live in.
This month, after a year and a half of fighting, including filing over two-dozen complaints, numerous formal grievances, a demand letter, and a federal lawsuit filed by the ACLU, Chelsea Manning finally received some affirmation of her humanity. On February 11, she began hormone treatment for her diagnosed gender dysphoria.
But even with this victory, Chelsea's fight continues.
The government is refusing to let Chelsea grow her hair as other female prisoners are permitted to do. Instead it is forcing her to keep an almost shaved head in accordance with male hair standards.
Meanwhile, in her criminal appeal, the government has refused to honor Chelsea's female identity and is fighting to use male pronouns and her former name in the legal papers for that case – a clear signal that they seek to further dehumanize her as she fights for her freedom. Around the country, countless other transgender women and men in prisons, jails, and immigration detention centers are struggling to be heard, to receive treatment, and to survive unbearable conditions. In other words: to simply exist.
This last week, the Southern Poverty Law Center sued the Georgia Department of Corrections on behalf of Ashley Diamond, a transgender woman who has been denied the medically necessary hormone treatment that she relied on for 17 years prior to her incarceration. In response to her pleas for treatment, Georgia prison officials mocked Ashley calling her a "he-she-thing" and ridiculing her health and safety needs.
From prison, Ashely writes: "It is amazing how a minor brush with the law has turned into a death sentence. This is about more than just hormone treatment. This is about gross human rights violations. Three years of torture is enough."
Indeed. Three days would be enough, three years is nightmare.
Across the political spectrum, people denounce the worth of trans people to receive the basic medical care we need. Television shows mock our existence and even in the wake of tragedy, media outlets think it permissible to erase our core humanity by refusing to honor our lives and genders in death.
As Ohio-based trans activist Cherno Biko explained:
Our fight is not for equality, it's for liberation and survival. Our bodies are being criminalized and policed to the point of extinction. It is crucial that we channel our energy and resources to our communities' most vulnerable.
While we mourn the many trans women we have lost this year, we must also stand with those trans people living under unbearably violent conditions. Exposed to unthinkable deprivations and degradation, our incarcerated trans brothers and sisters are everyday defending their right to exist.
What an incredibly modest, yet truly brave and resilient demand. Until no more trans people are subjected to the fear of death for being who they are, fighting for trans survival in and out of prisons is our duty and privilege.
From Chelsea to Ashley to the countless whose names we do not know, we see you, we defend you, and we support you.
The day I got my driver's license with the gender marked "F" and my new legal name was one of the best days of my life. I was assigned male at birth, and my parents named me Steven. But I'd known for many years that I am a woman, and now I had the identification to prove it.
That year also included many of the hardest days. My parents, who belong to a conservative church, disowned me. My next-door neighbor hosed me in the face with a chemical poison. And I was fired from the job that I loved – all because I am transgender.
I'm an electrician, and I was working at H & H Electric, a contractor in Hot Springs, Arkansas. The day after I got my new driver's license, I told my boss that I am a transgender woman. He looked shocked. He told me that I was one of his best people and that he would hate to lose me. I was stunned that his first reaction was that he might have to fire me.
He didn't fire me right away, but he didn't let me come to work as a woman, either. He told me I couldn't discuss my transition with anyone at work or use my legal name, Patricia.
Even though I didn't say anything, people at work noticed that I was transitioning. My hair was growing out, and I'd started hormone therapy. Some of my co-workers were kind to me, but others were cruel. Twice, co-workers tried to sabotage my work. One of those instances could have caused an explosion that could hurt or even kill someone. Fortunately, I discovered it in time, and no one was hurt.
The more time passed, the more it became obvious that I am a woman. Eventually I felt brave enough to wear makeup and a blouse to work. I was on top of the world. I had a great job, and I was finally being myself. That week, my boss pulled me aside and said, "I'm sorry, Steve, you do great work, but you are too much of a distraction and I am going to have to let you go."
I am not a distraction. I am a woman, and I shouldn't be fired for being who I am. That's why the American Civil Liberties Union filed a lawsuit on my behalf arguing that firing me because I am transgender is illegal sex discrimination.
Even though federal law prohibits employers from hiring or firing people because of their gender, here in Arkansas and in 31 other states, there are no laws that explicitly tell employers that discrimination against transgender people is illegal. I'm here to make sure that transgender workers are judged on their job performance, not who they are.
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project
The ACLU is releasing records today obtained from law enforcement agencies across Florida about their acquisition and use of sophisticated cell phone location tracking devices known as “Stingrays.” These records provide the most detailed account to date of how law enforcement agencies across a single state are relying on the technology. (The full records are available here.)
The results should be troubling for anyone who cares about privacy rights, judicial oversight of police activities, and the rule of law. The documents paint a detailed picture of police using an invasive technology — one that can follow you inside your house — in many hundreds of cases and almost entirely in secret.
The secrecy is not just from the public, but often from judges who are supposed to ensure that police are not abusing their authority. Partly relying on that secrecy, police have been getting authorization to use Stingrays based on the low standard of “relevance,” not a warrant based on probable cause as required by the Fourth Amendment.
Records Show Widespread Stingray Use
Last year, we sent public records requests to three dozen police and sheriffs’ departments in Florida seeking information about their use of Stingrays, also called “cell cite simulators” because they mimic cell phone towers and force phones in the area to broadcast information that can be used to identify and locate them. The records we obtained document millions of dollars spent purchasing the technology and show their use in many hundreds of investigations in every corner of the state.
As we revealed last year, the Florida Department of Law Enforcement has spent more than $3 million on Stingrays and related equipment since 2008. But it isn’t keeping the technology to itself. The FDLE has signed agreements with at least 11 local and regional law enforcement agencies allowing them to use the FDLE’s Stingrays and to share them with neighboring jurisdictions. (Though the version of the sharing agreement released by the FDLE is partially redacted, a local police department near Tampa provided an unredacted copy.)
Use of the FDLE’s Stingrays has been extensive. In a May 2014 email, the FDLE identified a staggering 1,835 uses of cell site simulator equipment, likely reflecting deployment in both state and local investigations throughout Florida.
The Tallahassee Police Department (TPD) provided the most extensive information about a local agency’s use of Stingrays on loan from the FDLE, including a detailed list of more than 250 investigations in which it used Stingrays from September 2007 through February 2014. Although law enforcement agencies often justify their purchase of Stingrays—and the excessive secrecy surrounding their use — on homeland security grounds, the Tallahassee list reveals not a single national security-related investigation. Robbery, burglary, and theft investigations represent nearly a third of the total, followed by “wanted person” investigations, and then a laundry list of other run-of-the-mill offenses. The list also shows that the TPD allowed other police departments to access Stingrays, even crossing state lines into Georgia on at least five occasions.
Technology Hidden From the Courts
In many of the investigations, police never sought a court order authorizing Stingray use. In others, they sought a court order on a low "relevance" standard, but not a warrant based on probable cause. Perhaps most troublingly, the records indicate a pattern of excessive secrecy, including concealment of information that should appear in investigative files and court filings. For example, the TPD provided a sample of judicial applications and orders it says were used to justify Stingray use, but not one of them contains a single mention or description of Stingray technology. This suggests that judges weren’t being fully informed about what they were approving.
The TPD also released the full investigative files from 11 cases where the agency used Stingrays.* But officers’ notes and other documentation in the files never once mention Stingrays or provide descriptions of their use. Instead, there are only fleeting references that would likely be inscrutable to a defense attorney or judge not already on the lookout for signs of covert Stingray surveillance. Two files mention use of “electronic surveillance measures” to track a cell phone. Another says only that “Confidential intelligence” indicated the location of a phone. A fourth states that “Inv Corbett [sic] arrived and determined that [the tracked] telephone was on the second floor of the apartment.” We know from a court transcript that the ACLU successfully petitioned to unseal last year that Corbitt is the TPD officer who operates Stingrays for the department.
The Tallahassee Police aren’t alone in obfuscating references to Stingray use in case files and court documents. As we have previously reported, for example, police in the Sarasota area were instructed by the U.S. Marshals Service to eliminate descriptions of Stingray cell phone tracking in court filings and replace them with the cryptic phrase “received information from a confidential source regarding the location of the suspect.”
A new Washington Post article, based partly on the records obtained by the ACLU, provides further detail about how Stingray secrecy functions — and malfunctions — in Tallahassee. In one case detailed by the Post, prosecutors opted to offer a defendant a no-jail plea deal instead of revealing details about the Stingray as part of court-ordered pre-trial discovery. As we’ve seen elsewhere in the country, our justice system can’t properly function when judges and defense attorneys are kept in the dark about covert electronic surveillance by police.
Excessive Secrecy Persists
Below we detail our findings about Stingray use in other departments across the state, including records showing hundreds of thousands of dollars in expenditures and information on the number of cases in which they have been used. But for all these disclosures, many details about Stingray use in Florida are still shrouded in secrecy.
Several agencies refused to comply with Florida's open records laws by properly providing documents. Some acknowledged that they had responsive records, but refused to release them. The Brevard County Sheriff’s Office, for example, denied our records request in full, partly relying on a “non-disclosure agreement or requirement” with a “federal agency.” (We know the FBI has been making local agencies sign non-disclosure agreements before buying Stingrays; a fully redacted copy of the FBI agreement is likely contained in the pages released by the FDLE. The FDLE also released a copy of a non-disclosure agreement with the Harris Corporation.) The Sheriffs’ Offices in Broward and Pinellas Counties issued similar denials. Police Departments in Pembroke Pines and Port St. Lucie failed to respond to the ACLU’s request at all.
Other agencies tried to withhold records, but apparently forgot that they had already released documents on the web. The Miami Police Department responded only that it had “No departmental orders or standard operating procedures covering ‘cell site simulators,’” but did not reply to a follow-up request for other kinds of records. Documents posted on the city’s website, however, show that Miami spent tens of thousands of dollars buying and upgrading Stingrays in 2008.
And in the City of Sunrise, the police at first refused to confirm or deny whether any responsive records existed. After the ACLU pointed out that Sunrise had already posted purchase records for Stingray devices on its public website, the city saw fit to send the ACLU copies of those already-publicly available documents . . . and a request for $20,000 to cover the expense of searching for additional records.
Not a single department produced any policies or guidelines governing use of Stingrays or restricting how and when they could be deployed, suggesting a lack of internal oversight. And no department provided evidence that it gets warrants before using the technology.
Indeed, records from Tallahassee and elsewhere indicate that police have not been getting warrants. That must change. In a strong ruling last year, the Florida Supreme Court held that the Fourth Amendment requires police to get a warrant before asking a phone company to track a cell phone user’s location in real time. The logic of that opinion should apply equally to cell phone tracking using Stingrays. And because Stingrays sweep up information not just about suspects, but also bystanders, the need for robust judicial oversight is all the greater.
The documents we obtained add to the growing picture of surreptitious Stingray surveillance by local police around the country. By shining a light on police practices, we hope to help bring constitutional violations and a culture of impunity to an end.
Details on Stingray Use by Departments Across Florida
Records from elsewhere in Florida show how use of the technology and secrecy about it has proliferated. Following is what we found about particular departments across the state:
- The Miami-Dade Police Department produced purchase records for hundreds of thousands of dollars’ worth of equipment from the Harris Corporation, the Florida-based maker and seller of Stingrays. The Miami-Dade PD also stated that it had used Stingrays in 59 closed criminal cases within a one-year period ending in May 2014. The total number of investigations where the agency used Stingrays is surely larger, since that figure does not include cases that were still active at the time of its response. The department has a troubling history when it comes to Stingrays: according to a document available on the internet but not among the records produced to the ACLU, the Miami-Dade PD first purchased a cell site simulator in 2003 in order to surveil protesters at a Free Trade of the Americas Agreement conference.
- The Palm Bay Police Department provided records from a 2006 investigation where they used a Stingray to track a suspect’s phone. Instead of seeking court authorization or even asking for assistance from the FDLE, a Palm Bay officer “contacted Harris Corporation and utilized some of their technology and engineers to track the cell call.” This irregular procedure was possible because Palm Bay is just minutes away from the Harris Corporation’s headquarters in Melbourne.
- The Pensacola Police Department identified five cases where it used Stingrays and provided investigative files for each of them; none of the files mention or describe Stingray use. The department also stated that it “has not acquired a cell site simulator” and had no records regarding agreements with the FDLE to borrow the technology. However, the FDLE sharing agreements signed by the Tallahassee Police Department and the Leon County Sheriff’s Office both cover the “Tallahassee and Pensacola Regions,” perhaps explaining where Pensacola got the devices used in these investigations.
- The Lakeland Police Department stated that it “relies on the Florida Department of Law Enforcement to assist” in cell phone tracking cases, and produced files from three 2013 cases where it used Stingrays. Nothing in the files actually describes Stingray use. The FDLE produced a copy of its sharing agreement signed by the Lakeland PD.
- The Orange County Sheriff’s Office stated that it had no records regarding acquisition of Stingrays, but acknowledged that it had signed an agreement with the FDLE through which it could borrow the devices. The OCSO said that between 2008 and 2014 it “conducted 558 investigations in which cell site simulators may have been used.”
- The Jacksonville Police Department explained that it owns two Stingrays, but “neither of them is functional with the current technology. They are analog, outdated, of no value, and not used. Our agency has elected not to upgrade them due to the cost and frequency.” Records show that Jacksonville purchased its first Stingray device in 2001 (a “Triggerfish” model). In 2008 it used nearly $200,000 of federal grant funds to purchase additional devices, including a “Kingfish” handheld unit. The documents describe how the Kingfish is “capable of pinpointing a phone’s location inside buildings or other locations where a vehicle could not travel.”
- Agencies that signed sharing agreements with the FDLE but did not produce additional records concerning Stingray use include the Lee County Sheriff’s Office, Leon County Sheriff’s Office, and Seminole County Sheriff’s Office, among others. (See the documents released by the FDLE for the full list).
- A number of departments either explained that have not purchased Stingrays or have not used them, or stated that they did not have records responsive to the ACLU’s request, including: Cape Coral Police Department, Clearwater Police Department, Fort Lauderdale Police Department, Fort Myers Police Department, Gainesville Police Department, Hialeah Police Department, Hollywood Police Department, Lake County Sheriff’s Office, Melbourne Police Department, Orlando Police Department, Palm Beach County Sheriff’s Office, Pasco County Sheriff’s Office, Plant City Police Department, St. Petersburg Police Department, Tampa Police Department, Titusville Police Department, and West Palm Beach Police Department.
* In consideration of the privacy interests of people named in the investigative files produced by several law enforcement agencies, we are releasing only those pages of the files that shed light on Stingray use, and are redacting personally identifiable information.
Her name was Lamia Beard. She was from Virginia.
Her name was Taja DeJesus. She was from California.
Her name was Penny Proud. She was from Louisiana.
Her name was Ty Underwood. She was from Texas.
Her name was Yazmin Vash Payne. She was from California.
Her name was Bri Golec. She was from Ohio.
Her name was Kristina Gomez Reinwald. She was from Florida.
Seven transgender women that we know of have been murdered in this country since 2015 started. At least five were women of color. It's a horrifying litany already, and it's only February.
Writer and activist Janet Mock blogged on Monday about how she maintains hope in the face of these tragedies because recent media visibility for transgender women of color, like herself and Laverne Cox, is gradually helping "reshape the narrative of trans women's lives." At the ACLU, we also feel a responsibility to do whatever we can to change the landscape for trans people in the United States. Through litigation, policy advocacy, and education, we're working to enhance safety, increase opportunity, and foster dignity for all transgender people, but especially for trans women of color.
Toward this end, much of the ACLU's work in recent years has focused on getting policymakers and the public to appreciate the basic human dignity of transgender individuals. It goes without saying that transgender people have the right to do everything non-transgender people do, from using restrooms in peace to accessing medically necessary health care to serving in the military, but unfortunately there are still people and institutions denying this basic truth. Conversations in the halls of power and in the media about righting these exclusions help Americans understand what it means to be transgender and appreciate trans people's humanity.
Another thread of our work has involved protecting the safety of transgender people, often in relation to the criminal justice system. Disproportionately forced into survival economies because of widespread discrimination and stereotyping based on both gender and race, transgender women of color are particularly vulnerable to cycles of arrest, incarceration, trauma, and violence.
We've both responded to individual instances of these problems and worked to raise awareness of the underlying issues, such as by helping Monica Jones fight a Phoenix police practice of profiling and arresting trans women of color as presumed sex workers, and helping Connecticut teenager "Jane Doe" resist officials' efforts to imprison and isolate her without criminal charges.
Where feasible, we've also worked with governments to secure policies and training that increase law enforcement sensitivity to the needs of transgender people. The LGBT Project's work on these issues dovetails with that of many other advocates, including our colleagues within the ACLU at the Racial Justice Project, the Criminal Law Reform Project, the Campaign to End Mass Incarceration, and affiliate offices around the country.
Finally, we've been striving to ensure that transgender Americans have equal opportunity to achieve economic security. This includes pushing to enact and enforce local, state, and federal laws protecting transgender workers from discrimination. It also encompasses our extensive advocacy to ensure that transgender students are respected at school and able to focus on learning.
Being able to participate fully in education and in the workplace won't guarantee that transgender girls and women of color are safe from violence, but it will reduce the vulnerability that comes from economic marginalization. Further, seeing transgender peers succeed at work and at school will help other Americans work through their prejudices and misconceptions regarding transgender people.
Unfortunately there's no lawsuit the ACLU can file, no bill we can push through Congress, and no report we can issue that will immediately stop violence against transgender women of color. But that does not mean we can throw up our hands and dismiss the issue as irrelevant to our legal work. We stand with advocates around the country in honoring the lives of trans women, by working to address the causes of these tragedies. We stand with those who say not one more.