When Smart Gets Scary: Invasion of the Data Snatchers

October 24th, 2014 No Comments   Posted in ACLU Nationwide
By Matthew Harwood, Media Strategist, ACLU

Smartphones and smart refrigerators and smartwatches, oh my.

I know, I know, it doesn't sound scary, but more and more, the things we own are being hooked up to the Internet and quietly collecting data on us, which is then packaged and sold to Big Business and Big Brother by data aggregators.

It's called the Internet of Things, and it's just the beginning of our surveillance future.

At the start of the next decade, there could be more than 30 million Internet-connected devices. Google's already touting a future where your home is "conscious." But many of them will be outside the home, like street lamps, which will make it harder and harder for people to "log off" and evade tracking.

"Technology in this world is moving faster than government or law can keep up," the CIA's Chief Technology Officer Gus Hunt told a tech conference last year. "It's moving faster I would argue than you can keep up: You should be asking the question of what are your rights and who owns your data."

The spook is right. As we move toward the Internet of Things, it's imperative that we discuss the implications of a world where we spew a digital exhaust that's then vacuumed up by corporations and governments and used to intrude into our lives. If we don't, we might begin to see our world looking more and more like this dystopic nightmare.

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If you'd like to take a deeper dive into how the Internet of Things could mean the surveillance of everything, check out this piece, "Invasion of the Data Snatchers," for TomDispatch.com, which inspired the video.

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A Minister and a Rabbi Walk Into a Vegas Wedding Chapel…

October 24th, 2014 No Comments   Posted in ACLU Nationwide
By James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & AIDS Project

There are currently 32 states and counting that have marriage equality. This is up from 12 states before we helped Edie Windsor strike down the Defense of Marriage Act in the Supreme Court last June.

In the states where gay couples have just begun to marry, as in other states that have gained marriage equality over the last 10 years, most government officials and businesses – regardless of their personal beliefs – have no problem following the law.

At the same time, we're hearing stories of a small number of objectors who want to refuse service to gay couples based on their religious beliefs.

These situations aren't all the same.

On the one hand, we have ministers and churches. Religious leaders and institutions can choose whom to marry in a religious ceremony.

Let's take the example of an Orthodox Jewish rabbi who performs religious ceremonies for other Jews. If two women ask him to perform their wedding ceremony, he has a right to say no because performing that marriage is against his religious beliefs – the same way he's allowed to decline business when one of the partners isn't Jewish. That's true even if he charges a fee for his religious service.

However, let's say this rabbi, or a Las Vegas wedding officiant, owns a business to perform nonreligious ceremonies. Once a business offers nonreligious services to the public, that business is required to follow the rules that apply to all other businesses open to the public, including anti-discrimination laws.

Providing wedding services, including services related to a wedding, doesn't mean a business owner is endorsing anyone's marriage, or agreeing with the customer. It simply means they are providing services to the public.

When a business offers general wedding services to the public, like the wedding chapels in Las Vegas, they cannot refuse service just because of who the customer is. And in North Carolina, we are hearing calls to allow government officials to not obey the law and pick and choose who to serve, while acting in their official roles as government workers.

That's not religious liberty, that's discrimination.

We saw extraordinarily broad legislation introduced earlier this year in states like Kansas, South Dakota and Tennessee, that would not only have allowed any person to refuse to provide services related to weddings of gay couples, but also to refuse to treat those marriages as valid at any time. That's wrong, and unworkable. That's why these and similar legislative efforts were resoundingly rejected, including in Arizona where the governor vetoed the bill after receiving pushback from businesses, religious leaders, and fellow Republicans.

Religious freedom is a fundamental American value, one which ACLU has staunchly defended for the past 96 years. We are all entitled to our religious beliefs, but this doesn't give anyone the right to harm other people.

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#LetsTalk About Abortion

October 24th, 2014 No Comments   Posted in ACLU Nationwide
By Erin White, Communications Manager, ACLU Reproductive Freedom Project

Research shows that nearly one in three women will have an abortion by the time she turns 45. Yet, far too often, we still think of abortion as a dirty word, not fit for polite company.

It's long past time for that to change. And thankfully, we're seeing signs that change is already on its way.

Elle Magazine spread

This month, Elle magazine featured a moving first-person account of features editor Laurie Abraham's abortion. We're working with Elle to make sure lots of people know about this must-read story and to generate some conversation about the "A" word, which has become a sort of invisible scarlet letter.

To make sure people don't miss this important piece, Elle has launched a campaign asking readers to #BookMarkIt and leave it in a public place – like the subway, in your company kitchen, or on a trend machine at the gym ­– and snap a picture of it. Afterward upload it to Facebook and tag ACLU Nationwide and Elle Magazine so we can add yours to our gallery.

Or help us keep the conversation going on Facebook and Twitter with the hashtags #LetsTalk and #1in3.

Elle Magazine spread

Because no matter how you talk about it, abortion should never be considered a dirty word.

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Edward Snowden: One-on-One in Moscow

October 24th, 2014 No Comments   Posted in ACLU Nationwide
By Anthony D. Romero, Executive Director, ACLU

This originally appeared in the Summer 2014 issue of STAND, the ACLU magazine.

Edward Snowden stirs passions among many across the world. After all, in June of last year he provided classified materials to journalists working with The Guardian and The Washington Post detailing the extent of the U.S. government's mass surveillance practices.

As a result, he is now being pursued by the most powerful government in the world. He faces a life of exile or imprisonment. He's physically isolated from his family, friends and lawyers. He's in the middle of an international maelstrom, having provoked the ire of U.S. government officials, and has even had threats made on his life. He's limited in his ability to receive advice and assistance from his lawyers, as no long-distance communication seems sufficiently secure.

In July of last year, the ACLU began providing Snowden with legal counsel. After "chatting" with him several times over encrypted channels, I flew to Moscow in January to meet him. I wanted to talk with him face-to-face and form my own opinion. My colleague at the ACLU, Ben Wizner, who serves as Ed's lead legal counsel, accompanied me and set up the meeting.

In Moscow, my first words to Ed were, "You look like your photographs." He chuckled, ushered us into the room and immediately put me at ease. In front of me was a personable, clean-cut young man—like any who would work at the ACLU.

We had a very animated conversation about the efforts to reform the U.S. surveillance programs. Ed's deep knowledge of the issues around surveillance and civil liberties is immediately obvious, but he actively solicits alternative viewpoints and feedback from folks who may know far less about the substantive issues. He doesn't sermonize or lecture. He listens to and answers questions.

We talked about the various surveillance-related lawsuits making their way through the federal courts. Ed had followed the ACLU's prior lawsuits closely and he was well acquainted with the frustrations we had felt before the U.S. Supreme Court in our case, Amnesty v. Clapper. There, ACLU lawyer Jameel Jaffer was bounced out of court by five of the nine Supreme Court justices because we could not prove that our clients had been subjected to surveillance. Of course, we couldn't prove that our clients were being surveilled because the surveillance was secret! It was a catch-22 that meant that no one would have standing to challenge the NSA's activities.

The short of all of this is: I admire Ed Snowden. I'm proud that my colleagues at the ACLU are serving as his legal advisers. I appreciate his actions, and I understand his motivations. And I was thrilled to sit down and speak to him. Here are some highlights from our conversation.

Here we are, sitting in a hotel room in Moscow. You're far away from your family and your loved ones. Your life has been disrupted. What do you want to come out of all of this? After you've risked so much of your personal life, what is it that you aspire to?

My main purpose [in providing the information to journalists] was simply to allow the average American to understand the policies of their government that they weren't asked about. And to allow us, as a civil body, to decide if we thought this was the right thing and the direction we want to continue in. There's a danger when the government is drafting and implementing policies in the dark, without the input of the voting public. Even the full body of Congress wasn't aware of these programs. Even members of the intelligence committees outside of the Gang of Eight didn't know about some of these programs. Being able to give that back to my country—being able to give the media its voice back, being able to give the public its voice back—this was about getting our seat back at the table of government. Now if I had my way—and I'm not going to impose my will on the country—I would see the government step back from dragnet surveillance, the sort of indiscriminate monitoring and collection of records from people even when they're not suspected of any crime or any sort of wrongdoing, and instead focus those resources—those billions of dollars that are being poured into mass surveillance—into the traditional methods of investigation and collection that we know work and keep us safe. Where the government focuses on individuals they suspect to be dangerous actors—people who have committed a crime or are planning to commit a crime—and really use the full range of their authorities, the totality of their capabilities, on the basis of warrants and reasonable suspicion, individualized suspicion. Because we really need to think about whether we want to live in a country where every time we pick up the phone, every time we write an email and every time we make a purchase, it's recorded. I don't think that's good for Americans and I don't think that's good for democracy.

The government has now collected in warehouses in Utah, unbeknownst to us, so many records of our private communications. Can we put the genie back in the bottle? Can we actually go back to a place where we can purge that data and force the government not to collect it?

I think that we need to do it carefully, because we've seen missteps in the past, such as the Protect America Act that passed in 2007. It was a stopgap between the warrantless wiretapping program of Bush and the FISA Amendments Act that sort of codified his illegal mass surveillance. What this stopgap measure did was let the government perform mass surveillance and then keep the database it created even after the law was no longer used, having been replaced by the FAA. And that's the danger — that even if we roll back the law, they'll hang onto these records in secret. But, that comes down to what we want and what we demand of our Congress. America has been through civil liberties crises before. We've been in situations where what was lawful was out of step with what was right. And, just like then, I think we can turn that back. I think we can reestablish that we have certain values that we're not willing to abandon, and that the Bill of Rights still means something.

Snowden STAND Cover
Illustration by Shepherd Fairey

Why do you stick your neck out for it?

Because someone has to. Whenever we have these issues, someone has to be the first to step forward and say, "I don't agree with this," like the ACLU's Clapper v. Amnesty International case, where the Supreme Court ruled that the ACLU's clients had no standing to challenge the FAA. You go through the process and you try it in the courts, but if the courts abdicate their role—if they say, "Hey, we're not going to rule about this and we don't want to rock the boat"—then it comes down to everybody else. Whether you're a government employee who took an oath to the Constitution or a private citizen who supports civil liberties, we all have to do what we can to restore the balance of our rights. And when I think about having to leave my family behind, having to travel to a foreign place—as long as it buys a better future for my family and my country, then it's something that I'm willing to do.

The ACLU is one of those places where we take courage and comfort from folks like you who have the strength of your conviction. We have the easy jobs because we bring cases and advocate on behalf of clients and individuals. But it takes the courage of individuals who are willing to step forward as clients, whistleblowers or expert witnesses to really give life to some of these principles, because they can be so abstract. And part of the challenge we're catching up with is that the surveillance technologies have been so fast-moving that our laws—and even lawyers' knowledge of these programs—are so far behind. We talk about the need for a 21st-century Fourth Amendment that talks about unreasonable searches and seizures. What would that look like to you?

I think the 21st-century Fourth Amendment can actually be the same as the 20th-century, and the 19th-century and the 18th-century because it's written in such clear terms that it doesn't need to be rewritten. It's couched in language like "unreasonable search and seizure," right? If we have a specific reason—if we've got an oath or affirmation that there is probable cause to peel back and intrude upon the civil rights of a target individual—that's the traditional purpose of investigative authorities, whether it's a law enforcement investigation or an intelligence investigation. But the two parts of that which we have to keep in the 21st century are not only that unreasonable searches are prohibited, where the NSA can't go in and look at someone's information without a cause, but also the seizure. They can't collect your information in the first place unless they have a suspicion for doing so. It doesn't make sense. It's not reasonable for the NSA to collect every phone call of every American, or even the phone numbers or anything like that, without a suspicion justifying it. I sat at that desk, I named the targets, and I can tell you, it's dangerous and unnecessary. We don't need it to do the job.

Your biggest fear in outing yourself as the source of the NSA revelations was that you would have sacrificed your home, your family and even your freedom and that no one would listen. Was the sacrifice worth it?

Speaking truth to power is a dangerous thing, and I knew it would come with a price. But I swore an oath to defend the Constitution of the United States and I witnessed the NSA violating it on a massive scale. I knew what I had to do: I kept my oath. And it turns out it wasn't for nothing. In the wake of these revelations, all three branches now agree that we went too far in creating a secret program to intercept the communications of hundreds of millions of ordinary Americans. Federal courts have ruled the programs I revealed are Orwellian and likely unconstitutional, Congress has spent more time trying to restrain out-of-control spies than we've seen in 40 years, and two separate White House panels concluded the programs never stopped a single domestic terrorist attack. One of them even said the NSA's bulk data collection schemes had "no basis in law" at all. None of that would have happened without the involvement of ordinary citizens in this debate, and that's why an informed public is—and must remain—the foundation of our system.

There are a half-million ACLU members and 1,000 ACLU staff members nationwide. What do you want us to do? If you had to give us our marching orders, what would you want us to do on this set of issues?

The first action to take would be to make your voices heard and tell your elected representatives how you feel about mass surveillance. These programs have been defended on the ground that they keep us safe, but the record shows—from the president's review board, the Privacy and Civil Liberties Oversight Board, the federal court opinion of Judge Leon, and even congressional authorities—that they've never stopped a terrorist attack. They've never even discovered an unknown terrorist plot. But they've cost us billions and billions of dollars that could have been applied to effective means of investigation. And if you think that it's not good for our country to give up our civil liberties in exchange for programs that don't make us safer but actually put us at risk by wasting resources, you should come together with one voice, call Congress, and say it's time to end mass surveillance.

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Odds Are, You Are Suspicious

October 24th, 2014 No Comments   Posted in ACLU Nationwide
By Samia Hossain, William J. Brennan Fellow, ACLU Speech, Privacy, & Technology Project

When you get off a train, do you get off ahead of passengers? Or do you get off behind passengers? When you're going on a trip, do you come off as nervous? Or are you an unusually calm traveler? How about if you make a phone call at a station, do you look around? Or do you stare straight ahead?

If you don't know the answers to these questions, you'd better figure them out now. Because unless you get off in stride with other train passengers, live at the elusive intersection between anxiety and tranquility, and close your eyes during phone calls, you're a suspicious person subject to questioning by Amtrak police.

According to the Guidelines for Amtrak Customer Service Employees in Texas, which the ACLU has received as a result of a FOIA request, ticket agents may come in contact with travelers whose conduct is "indicative of criminal activity." Amtrak says supposed indicators of such activity should immediately be reported to trained law enforcement personnel. They include:

  • Unusual nervousness of traveler
  • Unusual calmness or straight ahead stare
  • Looking around while making telephone call(s)
  • Position among passengers disembarking (ahead of, or lagging behind passengers)
  • Carrying little or no luggage
  • Purchase of tickets in cash
  • Purchase tickets immediately prior to boarding

Not only does Amtrak ask its ticket agents to alert the cops to such dangerous activity as, say, a spontaneous romantic trip with your honey, Amtrak also urges its customers to report suspicious activity to Amtrak police themselves. In its "See Something, Say Something…Hopefully It's Nothing" campaign, customers are asked to report such activity as taking photos of equipment – including trains – and "loitering, staring, or watching employees and customers." Sorry, googly eyes.

While Amtrak certainly has an interest in keeping its passengers safe, it is using the same heavy-handed, dragnet approach that we've seen in many of the government's other counter-terrorism and drug trafficking prevention efforts. As we have seen with Suspicious Activity Reports and the TSA's SPOT program, reporting based on broad categories of "suspicious" behavior is problematic because it almost always results in racial and religious profiling, as well as the targeting of perfectly innocent activity. Most importantly, building mountains of irrelevant data is ultimately an ineffective law enforcement tactic. (See here and here).

The ACLU has received reports from individuals wrongfully searched and arrested on Amtrak trains, which is why we filed this FOIA request to access the underlying policies leading to such police practices. While we're particularly interested in how Amtrak is collecting, tracking, and sharing our data — including through new technologies — we have yet to receive information relevant to those questions. But we do know that Amtrak police has not reported a single instance of finding and catching a potential terrorist or serious threat as a result of its suspicious activity reports. Instead, it has filled its trophy case with victories like arresting a black woman because passengers felt she was speaking too loudly on the phone, arresting a black man because another passenger falsely stated he threatened her, and even arresting a photographer because he was taking pictures of a train for the annual Amtrak "Picture our Train" competition (update here).

We have reason to believe that Amtrak's policies also provide grounds for civil asset forfeiture, a process that effectively allows cops to engage in highway robbery, and often results in racial profiling. The documents we received include agreements between Amtrak and the Las Vegas Police Department, Reno Police Department, and Louisiana state police. The agreements not only officially enable a practice of confiscating money and property from passengers without due process, but also mandate "[e]quitable sharing of forfeited assets;" in other words, state agencies get a cut of assets seized by Amtrak police. Reports of asset forfeiture indicate that the police target those they associate with criminal behavior and drug trafficking – black and Latino men.

If Amtrak police want to help keep us safe, they should come up with smarter policies for detecting and addressing criminal activity. Vague and overbroad standards don't help anyone — passengers are at risk of harassment by police for lawful actions, and Amtrak makes finding the needle near impossible by vastly enlarging the size of the haystack. If you have been a victim of Amtrak police profiling or asset forfeiture, contact us. Hopefully, it's nothing.

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Why is the U.S. Deporting Families it Should be Protecting?

October 24th, 2014 No Comments   Posted in ACLU Nationwide
By Sarah Mehta, Researcher, Human Rights Program, ACLU

This year, when a large number of families and children arrived in the United States seeking protection, the U.S. government's primary response has been to expand family detention and accelerate deportations.

This Monday, the ACLU and other human rights and immigrant's rights groups will testify before the Inter-American Commission on Human Rights about refugee families and children who have fled brutal violence in Central America and are seeking protection in the United States. This hearing will review the U.S. government's response from the perspective of human rights, not expediency.

On that metric, the U.S. response has been abysmal. Virtually overnight the Department of Homeland Security built two mass family detention centers this summer, with the capacity to detain 1,200 family members. In November DHS will start detaining families with children at a new facility in Dilley, Texas which, at full operational capacity, will imprison 2,400 individuals – making it the single largest immigration detention facility in the country. Last month allegations of sexual assault and abuse involving mothers detained at the newly repurposed Karnes Detention Facility emerged.

Meanwhile, imprisoned in remote detention facilities and without lawyers, many asylum seekers are shunted through asylum interviews without help or time to present their cases. The ACLU is currently in court challenging the rapid and short-circuited procedures, which are a problem not only from a fair trial perspective but also because asylum seekers are being returned to very real dangers. Because these procedures have been shrouded in secrecy—despite their potentially life-threatening consequences—we are also suing to make public those expedited removal procedures.

While some of these measures are a direct response to the growing number of arriving families and children, the mistreatment of asylum seekers,including children arriving alone, started before last year.

For instance, of the 89 individuals--including 11 unaccompanied children-- I interviewed who had been returned or deported at the U.S. border without a hearing over the last few years, 55 percent were not asked about their fear of returning to their country or presented with the chance to seek asylum before being ordered deported. Many of those who were asked if they were afraid and said yes were nonetheless quickly deported without the chance to see an asylum officer and request protection here. Thereafter, some of those individuals were indeed attacked, raped, or their relatives murdered when they were dumped back in the danger they fled.

Monday's hearing is an important step in requiring accountability for the United States, which has responded to what President Obama called a "humanitarian situation" by committing additional human rights violations. The United States has a responsibility under international human rights law to treat asylum seekers with justice—to provide fair hearings and a chance to seek protection here; to ensure asylum seekers are not returned to danger; and exempt children from detention. But more importantly, it has an opportunity to protect, instead of penalize, refugee children.

The hearing will be available via webcast starting at 9:00 AM (EDT) here.

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Do We Really Still Need Free Speech Week?

October 23rd, 2014 No Comments   Posted in ACLU Nationwide
By Tony Rothert, Legal Director, ACLU of Missouri

You bet. More than two centuries since the Bill of Rights was drafted, we continue to see a fundamental lack of understanding on government's part of just what freedom of speech means. Nowhere was that more apparent recently than in a Missouri suburb reeling from a terrible tragedy.

In honor of Free Speech Week, a refresher.

Look at Ferguson

Starting on August 9, demonstrators gathered in Ferguson, Mo., and throughout the greater metropolitan St. Louis area demanding transparency and respect following the fatal shooting of unarmed, black teenager Michael Brown.

This is to be expected. When people are angry and frustrated with their government, they need the space to express themselves. This has been true throughout our country's history. Remember the march from Selma to Montgomery? Protests in this country by communities whose concerns are disregarded by the government go back to the Boston Tea Party.

Unfortunately, despite the remarkable role protests have played in our history, over the last couple of months, the ACLU of Missouri has witnessed and received many complaints of law enforcement officials unabashedly violating individuals' First Amendment rights. Some violations were so blatant and widespread that they would no doubt prompt our founding fathers to throw their arms up and join the march for a government responsive to the communities it serves.

Right to Photograph Police

Days after the protests began, police demanded that videographers turn off their cameras, after which they attacked protestors. The ACLU went to court, where we quickly reached an agreement with local law enforcers to acknowledge and agree that the media and members of the public can freely record the activities of police officers as long as no one's safety is threatened and police aren't obstructed from doing their jobs. Thanks to that win, it's easier for us – and the media – to ensure rule of law is being followed in Ferguson. There is now no shortage of video recordings of police activity in Ferguson. Unfortunately, some of those recordings demonstrate the kind of police behavior that fuels distrust.

Officer Go Fuck Yourself

One evening in mid-August, a police officer pointed an assault weapon at peaceful protesters in Ferguson and threatened to kill them. When asked by reporters and protesters to identify himself, the officer replied, "Go fuck yourself." A journalist photographing the encounter was arrested. The very next day, the ACLU of Missouri sent a letter to the superintendent of the Missouri State Highway Patrol to demand that the officer be identified and removed from duty. Within hours we learned the officer would no longer work in Ferguson. Later, it was reported that he resigned from his job with the St. Ann Police Department.

Five-Second Rule

For several weeks, peaceful protesters in Ferguson were forced to keep moving or face arrest. What the ACLU dubbed the "five-second rule" effectively banned static protests on streets or sidewalks. But there was no legal basis for the rule. Our immediate attempt to secure a temporary restraining order against the practice was unsuccessful. However, working with attorneys from the law firm Munger, Tolles & Olson, the ACLU was able to gather and present compelling evidence that resulted in an order preventing police from enforcing the rule. Law enforcement officials can no longer force peaceful protesters in Ferguson to keep moving.

Bottom Line

When officers misuse archaic ordinances – against loitering, for example –to arrest individuals exercising their free speech rights, they're not upholding the law. Rather, they're perpetuating the perception that police are there to harass citizens rather than protect their rights.

During difficult times, police should exercise restraint and allow people to express themselves. Until that's abundantly clear to police across the country, then yes, we still need Free Speech Week.

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Not Having a Roof Over Your Head Can Mean Jail Time: The Criminalization of Homelessness

October 23rd, 2014 No Comments   Posted in ACLU Nationwide
By Kara Dansky, Senior Counsel, ACLU Center for Justice

Kilee Lowe was sitting in a park when cops picked her up and booked her into jail overnight.

After she got out the next morning, she returned to the park. The same officer who had thrown her into a cell not 24 hours before had booked her again. It was back to jail for Kilee.

Kilee has been cycling in and out of the criminal justice system for years. After three-and-a-half years in prison, she's been homeless for a little more than a year now.

"Just because I don't have a credit card in my pocket," she says, "does not make me a criminal."

Kilee lives in Salt Lake City, Utah. It's one of hundreds of American cities that has criminalized homelessness. Sometimes the "crime" is loitering. Sometimes it's panhandling. In 2014 alone, 100 American cities have banned sitting or lying down in public places. Wherever it happens, the fallout is frustratingly similar.

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Not having a roof over your head means living in a continual crisis. The stress of not knowing where you'll sleep at night, whether your family will be safe, and if you'll be able to eat can suck up all your energy and your will. Regular stints in jail can only make it more difficult to find stability.

Not only that, but they drain tax dollars that could be put to much better use.

Salt Lake City crunched the numbers, and the prescription was clear. The city was spending $20,000 per homeless resident per year – funding for policing, arrests, jail time, shelter, and emergency services. Homelessness was not going down. Instead, for $7,800 a year through a new program called Housing First, the city could provide a person with an apartment and case management services.

And more importantly, chronic homelessness has dropped 72 percent.

In the latest video in the "OverCriminalized" series – produced in partnership with Brave New Films and The Nation – we spoke to people whose lives have been greatly improved by the Housing First program. One man told us that he was homeless because he was trying to run away from problems. He had been molested as a child and struggled with drug addiction as an adult. Recovery was hard and other programs would throw him back on the street if he relapsed, continuing the destructive cycle. After moving into stable housing, the unending stress of being homeless has dissolved. He's been able to focus on sobriety and recovering. It's worked.

Housing First hasn't reached everyone like Kilee but that doesn't mean the program isn't improving people's lives. More could be done to reach out to the very people that desperately need programs like these.

For the last 40 years, this country has continually ratcheted up the number of people behind bars and expanded the reasons we put them there. Social problems – like homelessness, drug addiction, and mental illness – have been sucked into a criminal justice system ill-equipped to handle them. The problems haven't been solved. Instead, we've locked too many people away and wasted money that could have been spent on interventions that could actually change the course of people's lives. And as has always been the case with excessive correctional control, communities of color have been hardest hit.

But it doesn't have to be this way. America can safely reduce our reliance on incarceration. Several states have reduced their prison populations while crime rates have dropped.

Salt Lake City's Housing First program is an important step in the right direction, a much more humane and fiscally responsible approach than criminalization. Other cities should follow suit. It's time to end mass criminalization.

"OverCriminalized," a new series produced Brave New Films in partnership with the ACLU and The Nation, profiles three promising and less expensive interventions that may actually change the course of people's lives. It's time to roll back mass criminalization and focus on what works.

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Pushed into Homelessness by Their Own Government

October 23rd, 2014 No Comments   Posted in ACLU Nationwide
By Brandon Buskey, ACLU Criminal Law Reform Project

On the outskirts of Florida's Miami-Dade County, dozens of individuals formerly convicted of sexual offenses live as exiles on an abandoned strip of land near a railroad track. The area has no shelter from the elements, no running water, and no bathrooms. The most fortunate inhabitants of this makeshift encampment sleep in cars or in tents. Others make due with a tarp or anything else that passes as cover. Each night brings new threats of violence, malnutrition, and disease.

The images are disturbingly reminiscent of scenes from nearly a decade ago, when a collection of over 100 former sexual offenders formed a similar camp under a bridge spanning the Julia Tuttle Causeway. Local officials scattered that Skid Row sometime in 2010, following a barrage of condemnation by the public.

Like the people under the bridge, the people by the tracks did not simply fall into these tragic circumstances. They were shoved.

Miami-Dade County has forced them and hundreds more into homelessness with an ordinance that prohibits those convicted of certain sexual offenses from living within 2,500 feet – nearly half a mile – of a school. The ordinance has kept many of the inhabitants from living with family or loved ones who could offer shelter, and it has made it extraordinarily difficult to find affordable housing in the mostly urban county. More importantly, the ordinance creates the very conditions that undermine its stated rationale of public safety.

The origins of the encampment reveal both the senselessness of the ordinance and the arbitrariness of its enforcement. A number of those first exiled to the tracks lived for years in a trailer park named River Park, one of the few locations compliant with the ordinance that offered affordable housing. In May of 2013, officials with – ironically – the Miami-Dade Homeless Trust complained to local law enforcement that former sexual offenders were living within 2,500 feet of a youth emergency shelter called Miami Bridge Youth and Family Services.

Officials hastily resolved to label Miami Bridge a school and then evicted over 50 individuals from River Park under the ordinance. Their decision came despite the facts that for 25 years Miami-Dade had never classified the shelter as a school, that state law enforcement acknowledged having no trouble with River Park residents, and that a river separates the trailer park from Miami Bridge. As a result of the county's actions, the majority of the evictees became homeless and relocated to the tracks.

The Florida Department of Corrections has since only exacerbated the crisis. Rather than helping people recently released from prison identify housing suitable under the Miami-Dade ordinance, its probation officers instead direct those unable to find housing to the tracks. Many at the tracks tell the same story of this surreal experience.

After learning they had nowhere to live, their probation officers wrote down a street intersection on a piece of paper. The officers instructed them to either go to the location or go back to prison. Arriving at the intersection, the probationers walked around for hours in disbelief. They expected to find some sort of house or building, but eventually grasped the barren truth: They had been sent to live on an empty lot.

What could possibly justify a government knowingly forcing its citizens into homelessness? If you were a Miami-Dade official, your answer would be "public safety." And you would be wrong.

Decades of research – in states as different as Colorado, Minnesota, New Jersey, North Carolina, and, yes, Florida – demonstrate that residence restrictions don't work. These laws are meant to keep former offenders away from children, but studies show that, at best, they have no impact on reoffending and, at worst, they might increase the likelihood of reoffending. The only factors proven to reduce recidivism for this population are treatment and stable employment—two things that are almost impossible to come by when you're living in a tent by a railroad track.

Because residency restrictions don't protect the public and undermine the only interventions that do, groups like the Association for the Treatment of Sexual Abusers have disavowed restrictions like the Miami-Dade ordinance for producing a "false sense of security" in the public's mind.

Residency restrictions are not only ineffectual and counterproductive. They are cruel. By depriving people of the fundamental right to personal security and driving them into homelessness, Miami-Dade is violating the Constitution's basic promise of due process. In response, the ACLU and the ACLU of Florida today filed a lawsuit challenging the county's residency restrictions on behalf of three plaintiffs made homeless by this toxic ordinance and the Florida Action Committee, a nonprofit organization that tries to identify housing for those impacted by the ordinance.

The time has come for Miami-Dade County to turn away from this failed public policy.

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How Can a Three-Year Old Represent Himself in Court?

October 22nd, 2014 No Comments   Posted in ACLU Nationwide
By Beth Werlin, American Immigration Council & Kristin Macleod-Ball, American Immigration Council

Each week, in immigration courts across the United States, hundreds of children, some as young as a few months old, come before immigration judges and are called upon to defend themselves against deportation. Among them is Arturo,* a three-year-old who arrived at the United States border in April 2014 because family members feared for his life in El Salvador. Although he is only a toddler, the government has put Arturo into deportation proceedings on his own. He has no attorney to help him explain to the court why he should not be deported.

Arturo's case is not unusual. According to the Transactional Records Access Clearinghouse, less than a third of children with immigration cases pending in June 2014 had legal representation.

On Tuesday, the child plaintiffs in J.E.F.M. v. Holder, a nationwide class action seeking to ensure that all children in immigration court have legal representation, asked the federal court presiding over the case to add Arturo and two other children to the lawsuit. In J.E.F.M., the plaintiffs are challenging the government's long-standing failure to provide counsel to children in immigration court and asking the court to order the government to appoint legal representation for unrepresented children facing deportation.

The government has moved to dismiss the suit, arguing that none of the children has been harmed by the lack of representation. But the new plaintiffs and countless other children across the country are being deprived a fair immigration court hearing and are suffering real harm from the government's failure to provide them legal representation.

Arturo was conceived when his mother was raped when she was only 15 years old. After she faced continuing threats from her rapist, Arturo's mother fled El Salvador and left her son in the care of his aunt. However, because his family continued to fear for his safety in El Salvador, Arturo was brought to the border in Texas, taken into custody by the government, and put into deportation proceedings. He is now in the care of his mother in Los Angeles, who is a lawful permanent resident. Without legal assistance, Arturo has no way to explain to the immigration court whether he may be eligible for protection in the United States.

Arturo and other children bringing the case illustrate just how critical it is that children have legal representation in their immigration court proceedings. And yet, in recent months, the government has instituted policies that actually exacerbate the problem. Over the summer, the government announced that it would prioritize the immigration cases of children over those of most adults, creating new "rocket dockets" that give children even less opportunity to find legal help.

Although the government claims that immigration judges have authority to provide children with time to find legal assistance, attorneys and court observers around the country report that children are receiving less time to find attorneys. The problem is made worse because the government is initiating deportation cases against increasing numbers of children, severely straining the limited pro bono legal services available. Moreover, court observers report that immigration judges are asking children to complete complex forms like asylum applications, which must be completed in English, not their native language.

As plaintiffs in J.E.F.M. argue, children simply cannot adequately prepare for these cases on their own. An immigration court system that requires them to do so is fundamentally unfair and violates due process.

The J.E.F.M. child plaintiffs are represented by the American Civil Liberties Union, American Immigration Council, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP.

*Name changed to protect our client's identity

Blog post adapted and cross-posted from Immigration Impact.

Call on President Obama to provide legal representation to all children facing deportation.

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