Jail Doesn’t Help Addicts. Let’s Stop Sending Them There.

October 17th, 2014 No Comments   Posted in ACLU Nationwide
By Kara Dansky, Senior Counsel, ACLU Center for Justice

Misti Barrickman has scoliosis. Since she was a teenager, it's been debilitating. It hurt to lie down. It hurt to stand up.

She started taking Oxycontin to help with the pain and became addicted. She came to Seattle to find large quantities of the drug. Unable to find it and feeling increasingly desperate, Misti tried what was readily available: heroin. For the next seven years, she struggled with addiction. She lived between a tent and a jail cell, racking up charges for possession and prostitution.

Her story is all too common.

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Almost 30,000 people were arrested for drugs in New York in 2012. Over 117,000 people were arrested for drugs in California in the same year. Nearly 10,700 people were arrested for drugs in Washington that year.

Some of these people, like Misti, have been arrested multiple times – their addictions haven't been helped by stint after stint behind bars. Too often, the cycle just keeps repeating itself.

Seattle is trying something different.

Since 2012, the city's Law Enforcement Assisted Diversion program (LEAD) cuts out the criminal justice middleman. Instead of jailing people struggling with addiction, officers connect people directly with the treatment and services that can actually help them get sober.

Instead of wasting time and money with a court hearing and saddling people with a criminal record before they can access treatment and services, LEAD doesn't waste time. And unlike drug courts, LEAD participants who relapse are not threatened with jail time and expulsion from the program.

For the people we interviewed, the program is working. Misti's been sober now for two years. She no longer lives in a tent, and her pain is under control. She is in school. The latest video in our "OverCriminalized" series – produced in partnership with Brave New Films and The Nation – tells Misti's story and the story of others whose lives have improved after police took them to services, not to jail.

For decades, this country has been waging a failed war on drugs. Drug use hasn't gone down. Drugs are just as available as they used to be. Instead of solving our drug problem, we've become a society that seemingly disregards millions of lives – particularly the lives of black and brown people.

Although the majority of people who use and deliver drugs in Seattle are white, the black drug arrest rate was 13 times higher than the white drug arrest rate in 2006. Aggressive over-policing has ravaged communities. Large swaths of the population have been locked up. And billions of dollars have been wasted that could have been much better spent on interventions that could have actually changed the course of people's lives.

Drug addiction has become one of the many social problems that we've relegated to the criminal justice system. But as with homelessness and mental illness, handcuffs and jail cells haven't made things better and have cost much more than the treatment and services that can. 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.

Addiction should not be a crime.

"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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On the Creation of Giant Voiceprint Databases

October 16th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

The Associated Press ran a story (along with two sidebars) this week on the use of voiceprints by big banks and other institutions. Those companies say they are using the technology to fight fraud, but in the process they are apparently compiling large databases of voiceprints without customers' knowledge or permission.

Voiceprint recognition is the use of various techniques to recognize the timbre of a person’s voice. It is a technology I was aware of, but I did not know that it was being used so widely—and I suspect few Americans did. This technology raises a number of issues:

  • Effectiveness. Although vendors of course tout its accuracy, it's not clear what the false-positive and false-negative rates are for this technology as deployed in the real world by the banks. It could well be effective enough to increase banks' profits, but still have a high enough error rate that particular individuals get unfairly treated due to false-positive matches with fraudsters. In the national security context, the consequences of false positives could be much more serious—including in some circumstances even death. As the Intercept reported, the NSA has used its "state-of-the-art" voice recognition systems to help the Turkish government kill Kurdish rebels (or, we should say, those believed to be Kurdish rebels).
  • Consent. It's one thing if a company says, "If it's okay with you, we'd like to use your voiceprint to authenticate you, and if you don't want to participate, here's another method we can use." It's quite another for companies to be compiling large databases of voiceprints without customers' knowledge or permission. The AP obtained an internal document that recommended that "this call may be recorded" notifications be supplemented with "and processed" to cover the collection of voiceprints—hardly genuine notification. Enrollment in a biometric database is something that, by global consensus, should generally not be done without subjects' meaningful knowledge and consent.
  • Security. It's not clear how easy it would be to spoof or otherwise defeat voiceprint systems. Current deployments by banks may be based on an assumption that the technology is not widely known about or understood, but such ignorance of course never lasts, and human beings are clever at finding ways to game things. What if a fraudster figures out how to spoof your voice and empties your bank account? And possibly lands you on a blacklist to boot.
  • Anonymous speech. This technology promises to erase yet another major avenue for anonymous speech, which has been a core American speech tradition at least since the publication of The Federalist Papers and other anonymous colonial writings. Sometimes people need to make anonymous phone calls—to call in a crime tip, for example, or to call a psychological support hotline. (True, caller ID has already made this more difficult, but it is still doable.) When an individual calls a radio talk show, their caller ID may be apparent to the station, but they are not generally identified by full name on the air. The possessor of a giant voiceprint database listening to the radio, however, could identify those callers, and gather information about their opinions. If people lose faith that they can be anonymous in various contexts, that will create chilling effects that will impoverish our society.
  • Tracking. A database of voiceprints is in some ways just another compilation of valuable personally identifiable data, and is susceptible to the full range of uses to which such databases are often put. One can imagine its use to identify shoppers as they chat in the aisles, for example. I have written before about the threat that surveillance cameras will begin featuring microphones collecting audio from public spaces; this technology sharply increases the stakes of that battle.

In many ways the closest parallel to voiceprint technology is face recognition. In both cases, unique attributes that we cannot help but project out into the world are recorded and analyzed by powerful institutions. Regulating the collection of such data can be tricky, but we have every right to expect that institutions that are supposed to answer to us (as customers or citizens) will be honest and transparent in how they are doing so.

Ultimately, the question with this technology, as with any tracking technology, is whether and in what ways its use will go beyond the narrow goal reported by the AP of trying to stop fraud, and how any such uses are likely to affect innocent people, be used for social control, and shift power from individuals to large institutions.


A Ray of Hope for Women in the Lone Star State: Victory in the Supreme Court

October 16th, 2014 No Comments   Posted in ACLU Nationwide
By Brigitte Amiri, ACLU Reproductive Freedom Project

At 7:15 on Tuesday night, we learned that the U.S. Supreme Court temporarily blocked enforcement of part of the notorious Texas law that had shuttered 80 percent of the state’s abortion clinics. 

The Court’s decision was only a few sentences long, but the effect of those sentences is literally life-altering for women and families in the state. Because of this decision, clinics will be allowed to reopen, and they will be able to provide high-quality, compassionate care to women. 

Texas' HB 2 has wreaked havoc on women and the health centers that provide them care. After the Fifth Circuit Court of Appeals allowed the new law to take effect, clinics were forced to immediately close their doors because they were unable to make prohibitively costly, medically unnecessary renovations to their facilities. 

Patients had to be turned away at the door. Appointments were cancelled. And the remaining providers were inundated. One of my clients, Routh Street Women’s Clinic in Dallas, turned dozens of patients away, including a 13-year-old rape victim who was scheduled to come to Dallas from a town 170 miles away.

These closures come on the heels of many other clinic closures after the first part of HB2, which makes doctors enter into an unneeded business arrangement with hospitals, took effect. In total, HB2 had left only eight clinics for the 5.5 million women of reproductive age who live in Texas. The Supreme Court’s temporary blocking of the law is a breath of relief to the women and families of Texas. For the moment, more women in Texas are able to get care, and these truly amazing providers are able to see patients again. 

But this victory is tenuous, and the court battle is far from over. In early 2015, the Fifth Circuit is set to make a final decision about whether HB2 can again force clinics to close, and the case is likely to end up in the Supreme Court again.

We hope justice will prevail, and that women in Texas will always be able to get the quality health care that they need.     

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Treat Ebola as a Public Health Issue, Not a National Security Matter

October 15th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

Since the government announced the introduction of new Ebola screening measures at border checkpoints at five U.S. airports, we’ve been getting queries asking what our position is on such measures from a civil liberties standpoint.

This is something we’re watching closely; in 2008, we commissioned a report by several leading public health experts on pandemic preparedness and have tried to think carefully about the issues involved. The government rightly has extensive powers to deal with contagious diseases, and in some cases those powers can trump individual rights. In the context of contagion, after all, the population represents a single bio-mass, and the concept of “the individual” breaks down to a certain extent. At the same time, as Americans we of course want to preserve individual freedom and rights as far as possible, and not give the authorities powers that are not needed.

When something new and frightening like Ebola rears its head, some are likely to panic. Let’s recall the “Swine Flu” scare of 2009, which sparked calls for closure of the U.S.-Mexican border at a cost of billions of dollars in lost economic activity, over what turned out to be a normal strain of seasonal flu virus. The more dangerous an actual outbreak, the more important it is that cooler heads prevail and the policies that are implemented be ones that will actually be effective from a public health standpoint, while not intruding any more than necessary on civil liberties (or economic life for that matter).

Most important, as our 2008 report emphasized, pandemics must be treated foremost as public health problems, not as law enforcement or national security matters. Victims of disease must be treated as human beings who need help, not enemies. Long experience has taught the public health community that treating people like enemies is counterproductive, because it drives them underground, encourages them to scatter, and makes them avoid seeking diagnosis and treatment. Such responses to disease can and have made things worse. Our 2008 paper cited several historical examples of such responses, and similarly in the current crisis the public health expert community strongly (and correctly) warned that the military quarantines and lockdowns attempted in Sierra Leone would be ineffective and counterproductive.

People want good medical care and will seek help if treated well. As experts realize, the situations in which force is required against the sick are actually quite rare — but they seem to occupy an outsized place in the imagination, especially of those brimming with bluster and panic.

The appropriateness of different health measures depends on the circumstances, including the nature of the outbreak and of the disease at hand. It’s a question of reasonable balance. We don’t see anything wrong in principle with the screening measures that have been put in place, which include questionnaires and non-contact temperature screening. The government already has considerable (though not unlimited) search and detention powers at the nation’s borders, and considerable powers to address epidemics.

That said, it is slightly disturbing that the new screening measures seemed to have been implemented not because public health authorities called for them as a needed step, but because politicians felt the need to be seen doing something (recalling the satirical syllogism, “Something needs to be done. This is something. Therefore, this needs to be done”). Public health officials initially resisted these measures, worrying that they would not be a good use of scarce resources, and public health experts have continued to question the effectiveness of the measures.

The fact that political panic trumped the apparent recommendations of public health experts may not have serious consequences for civil liberties when it comes to temperature checks at the airport, but that dynamic is an ominous indicator of what might happen if things were to get worse, either with respect to Ebola or in the case of another outbreak.

Diseases have been with humanity for its entire history, and the modern public health profession has learned a lot of lessons about what works and what does not. Panicky, fire-breathing politicians seeking to prove their “toughness” by calling for draconian and counterproductive measures are not what we need.

In announcing the new measures, CDC Director Tom Frieden did make the point that “nothing we can do will get us to absolute zero risk until we end the Ebola epidemic in West Africa.” It is commendable that Frieden is using his leadership role to encourage Americans to have a grown-up, realistic understanding that risk can never entirely be eliminated — something all-too-often missing in public discourse.


On Leak Prosecutions, Obama Takes it to 11. (Or Should We Say 526?)

October 14th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office

James Risen is a Pulitzer Prize winning journalist. He's also currently under subpoena, possibly facing jail time, because of his reporting.

Specifically, he's being investigated because of an article on a CIA ploy to hinder Iran's quest for a nuclear bomb that went epically sideways and may have actually helped Iran along. 60 Minutes ran a great story on him this weekend, during which they cited a well-known statistic: the Obama administration has prosecuted more national security "leakers" than all other presidencies combined, eight to three.

But the story also prompted me to look into another figure, which is less well known and potentially more dramatic. Partially because of press freedom concerns, sentencing in media leak cases has historically been relatively light. Not so under President Obama. When it comes to sending these folks to jail, the Obama administration blows every other presidency combined out of the water – by a lot.

By my count, the Obama administration has secured 526 months of prison time for national security leakers, versus only 24 months total jail time for everyone else since the American Revolution. It's important – and telling – to note that the bulk of that time is the 35 years in Fort Leavenworth handed down to Chelsea Manning.

It takes a bit of digging to find all this information. As my public service for the day, here's a rundown of every leak case, the sentence (if there was one), and its current disposition.

Pre-Obama Cases

  • Daniel Ellsberg and Anthony Russo (1973). Famous national security whistleblowers prosecuted for releasing the Pentagon Papers. Sentence: Charges dropped after revelations that President Nixon's henchmen burglarized Ellsberg's psychoanalyst looking for dirt and tried to bribe the judge in their case with the directorship of the FBI.
  • Samuel Morison (1985). Naval analyst who sent pictures of the Soviet navy to Jane's Fighting Ships, a reference book on the world's warships. Sentence: 24 months. He was subsequently pardoned by President Clinton, despite CIA objection.
  • Larry Franklin (2005). Pentagon analyst charged with leaking Iran-related intelligence material to lobbyists for the American Israel Public Affairs Committee. Sentence: 10 months at a halfway house and 100 hours of community service.

Obama Cases

  • Thomas Drake (2010). NSA whistleblower. Revealed waste at the agency in connection with the Trailblazer Project. Sentence: All espionage charges were later dropped, and Drake pled guilty to a misdemeanor. He was sentenced to a year of probation. The judge called the government's conduct in the case "unconscionable."
  • Shamai Leibowitz (2010). Orthodox Jewish FBI translator, concerned about ill-considered Israeli airstrike against Iran, revealed U.S. spying against Israeli diplomats to blogger. Sentence: 20 months. Amazingly, the sentencing judge said, "I don't know what was divulged other than some documents, and how it compromised things, I have no idea."
  • Chelsea Manning (2013). Wikileaks. Sentence: 420 months (35 years). As noted, it's heaviest sentence in history, almost twenty times the pre-Obama record.
  • John Kiriakou (2013). CIA analyst and case officer. Kiriakou was the whistleblower who revealed the secret CIA torture program. Sentence: 30 months.
  • Donald Sachtleben (2013). FBI agent and contractor alleged to have disclosed to the Associated Press details of a disrupted Yemen-based bomb plot. The wildly overbroad subpoena the Justice Department sent to the AP as a follow-up made national headlines. Sentence: 43 months. Longest ever imposed in civilian court.
  • Stephen Kim (2014). State Department advisor who disclosed information about North Korea's plans to test a nuclear bomb to a Fox News reporter. The reporter was investigated by the FBI as a possible "co-conspirator" for mere act of newsgathering. Sentence: 13 months.
  • Jeffrey Sterling (case pending). Alleged to have been James Risen's source.
  • Edward Snowden (case pending). Revealed secret law allowing wholesale, covert surveillance of innocent people by the NSA. Charges against him carry decades in prison.

Wow. That's a long list. And as we're now waging a new war we are told could take years, it's a list that will only get longer.

With all due respect to the administration, this trend line should be going in the opposite direction. The modern national security state is more powerful than ever – more powerful even than during the Cold War. It demands democratic accountability. The last and best source of that accountability is a free press.

Tragically, that free press now has a 526-month sentence to serve.

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You Can’t "De-Gay" Our GSA

October 13th, 2014 No Comments   Posted in ACLU Nationwide
By Joshua Kilburn

My school, South Garland High School in Garland, Texas, is really large and diverse. It’s also right outside of Dallas, so it’s not like the fact that gay people exist is something new here. But I do still sometimes hear the word “faggot” thrown around in the hallway.

Sometimes it can be a scary place to be gay.

That’s why I decided to start a Gay-Straight Alliance. GSAs can provide a safe space for LGBT students and their friends to be who they are without having to hear that kind of thing. They make schools a safer place for everyone, and thankfully, they’re in thousands of schools all over the country and have been around since the 1990s.

With over 2,000 students here, it’s not surprising that we have more than 50 different student clubs and organizations. There are cultural groups like Sabor Latino and religious clubs like Fellowship of Christian Athletes. And, there are all sorts of clubs that are just about things people are interested in like: Table-Top Gaming Club, Fashion Club, Chess Club, and Comedy Improv Troupe. With so many clubs at our school, my friends and I didn’t think getting approval for a GSA would be a problem at all.

We lined up four faculty sponsors who were willing to help us out and came up with a plan to call our club the PRIDE (Promoting Relationships In Diversity Education) GSA. We planned a bunch of activities like a Rainbow Day in the spring when we’d all wear rainbow t-shirts and have a little pride party after school with snacks and music. One of the first things we wanted to do this semester was Ally Week. Created by the Gay, Lesbian & Straight Education Network (GLSEN), it’s a time to talk about how we can all be better allies to LGBT students while helping to fight bullying and harassment.

There was some confusion while we were trying to make plans for the year, and for a while there we thought the school wasn’t going to let us call it a Gay-Straight Alliance, so the name would have to be just PRIDE. We also were told it shouldn’t be about LGBT stuff, but more of a general diversity club, doing stuff about Latino American culture and Black History Month even though there are already clubs that celebrate those things. And, we were under the impression that we couldn’t have Rainbow Day or Ally Week.

I went to the GLSEN website looking for help, and that’s when I found a link to the ACLU’s resources for LGBT students. I learned that federal law says that if a public school allows any noncurricular clubs like Table-Top Gaming Club or Fellowship of Christian Athletes, then it can’t say no when students want to start other noncurricular clubs like a GSA. The school also can’t act like it’s allowing a GSA and then just de-gay everything about our club – including the name. And best of all, I found out how to contact the ACLU for help.

So that’s why the ACLU LGBT Project and the ACLU of Texas worked with my school district last week to make sure they understood we have the legal right to form a club with GSA in the name and talk about LGBT issues. And, it was a big relief when the school told us that we could do all of the things we’d hoped for, including hosting Ally Week and Rainbow Day. More importantly, I learned that we had a right to equality and I wasn’t alone.

Ally Week starts today. All we want is to make South Garland High School a safer school, not just for LGBT students but for everyone. We’re glad our school has decided to become an ally, too, and help us make that happen, especially to take the “scary” away from being gay at South Garland High.

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A Great Day for Seven Americans Formerly on the No Fly List

October 11th, 2014 No Comments   Posted in ACLU Nationwide
By Noa Yachot, Communications Strategist, ACLU

An extraordinarily secret government blacklist just got a little bit less secret.

Seven American citizens who were banned by the government from air travel received word yesterday evening that they are cleared to fly. For them, the notice ends a years-long struggle to find out why they were blacklisted and clear their names. As of last night, the seven can finally make plans to visit family, travel for work, and take vacations abroad.

The seven – six men and one women – had been on the government No Fly List, which prevented them from flying to, from, and over U.S. airspace. Even after they were surrounded by TSA agents at the airport and questioned by the FBI, the government refused to officially confirm that they were included on the list. They were also never provided reasons for being banned from air travel, or given a meaningful opportunity to contest the ban. In short, our clients have been locked in a fight to regain their freedoms with virtually no information.

The notice that the seven are “not currently on the No Fly List” came after a federal court last week set deadlines for the government in the ACLU’s challenge to the No Fly List. The court ruled that the government must notify our clients of their status on or off the No Fly List, give reasons to those still on the list, and provide an opportunity for them to challenge those reasons. The first of those deadlines was yesterday, and the government must complete reconsideration of the remaining cases by January 16.

These deadlines follow a June ruling by federal judge, striking down as unconstitutional the government’s procedure for challenging inclusion on the No Fly List.

Yesterday’s milestone isn’t only significant for the seven American citizens who can finally resume their lives. It also makes clear to the six other clients in the case that they’re still banned from flying. And while that may not seem like good news, it’s the first time the government has confirmed – albeit through negative implication rather than a direct confirmation – that people are on the No Fly List. It’s also a very basic victory for due process, because under our Constitution, the government can’t watchlist people and deny them basic freedoms without then telling them they’re blacklisted and why.

Our client Abe Mashal had this response:

More than four years ago, I was denied boarding at an airport, surrounded by TSA agents, and questioned by the FBI. That day, many freedoms that I took for granted were robbed from me. I was never told why this happened, whether I was officially on the list, or what I could do to get my freedoms back. Now, I can resume working for clients who are beyond driving distance. I can attend weddings, graduations, and funerals that were too far away to reach by car or train. I can travel with my family to Hawaii, Jamaica, or anywhere else on vacation. Today, I learned I have my freedoms back.

Our clients have been living in limbo for years, without the ability to challenge a secretive government system that has dramatically curtailed their freedoms. While yesterday’s notice is long overdue and doesn’t make up for the burdens our clients have long endured, it is good news for the seven who can fly again. And the others look forward to finally receiving from the government its reason for watchlisting them, so they can correct errors or innuendo and clear their names.

For the first time ever, the unfair and unnecessary secrecy regime surrounding the No Fly List is beginning to crumble.

The government has committed to revamping the No Fly List redress process more broadly. We expect it to make good on its word and move quickly to give everyone else on the list the opportunity to clear their names.

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A Psychotic Episode Shouldn’t End in a Jail Cell

October 9th, 2014 No Comments   Posted in ACLU Nationwide
By Kara Dansky, Senior Counsel, ACLU Center for Justice

Michelle Mata wants to be treated the way you would want your mom to be treated.

She's an aunt and a neighbor. She likes line dancing. And she suffers from major depressive disorder with psychotic features.

When people like Michelle have a mental health crisis, people often call the cops. The situations are scary and frustrating for everyone involved. The police often don't know how to interact with those in a crisis, and those suffering from a crisis are terrified that the police may use excessive force.

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The state of mental health services in this country is unacceptable. Instead of social workers, we have armed law enforcement officers. Instead of treatment facilities, we have prisons and jails. More than half of the people behind bars have shown recent symptoms of mental health problems. The Cook County Jail in Chicago is now the biggest single-facility provider of mental health services in the country. Nearly $9 billion per year is spent locking up people struggling with mental illness. And 356,368 severely mentally ill people were imprisoned in 2012.

But correctional control isn't helping. Many people leave the system worse off, having gone without treatment and services that could have changed the course of their life. Too often, this means they keep coming back instead of getting better.

It's time to cut out the middleman. People shouldn't have to be arrested and thrown in a cell to get treatment. That only adds cost and wastes time. People should get the help they need, as quickly as possible.

San Antonio, Texas, however, is trying something different.

Approximately 95 percent of police officers in San Antonio have gone through Crisis Intervention Training (CIT), a program that teaches them how to spot the symptoms of mental illness and how to safely and effectively interact with someone struggling with a mental health crisis.

People with mental illnesses, including Michelle, work with the police officers to teach them how they should be treated. Michelle helps to train them. Even though it's not the ideal solution, some people call the police when having a mental health crisis. Instead of putting people in handcuffs and taking them to jail, officers in San Antonio take them to a center staffed with mental health professionals.

In the new short film series, "OverCriminalized," we interviewed several members of the San Antonio police force. They report that they are much more confident and comfortable dealing with mental health crises after going through the training. Most importantly, since the implementation, none of the CIT teams have used extreme force.

But it's not just about how to police; it's about the entire goal of these interactions. People struggling with mental illness are no longer taken to a jail cell by way of lengthy and expensive stops in the ER. This program has saved the city about $50 million dollars.

It's good to celebrate what's happened in San Antonio. But we need to step back and ask how the city got into this problem in the first place. The answer is that for decades, this county has been shoving social problems like mental illness and drug addiction into a criminal justice system ill equipped to solve them. This mass criminalization has led to way too many people behind bars, often for too long and for reasons that have no business being crimes in the first place. 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.

San Antonio is leading the way on finding better approaches to mental illness than handcuffs and jail cells, and other cities should follow suit. Sign the petition to urge Congress to provide treatment for those who suffer from mental illness, not jail cells and arrest records.

"OverCriminalized," a new series produced by 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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VIDEO: Yes, Mass Collection of U.S. Phone Records Violates the Constitution

October 8th, 2014 No Comments   Posted in ACLU Nationwide
By Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project

EDITOR'S NOTE: A resounding win! A Philadelphia audience sided squarely with team civil liberties in a debate hosted yesterday by Intelligence Squared. Arguing for the motion, "Mass Collection of U.S. Phone Records Violates the Constitution," were ACLU staff attorney Alex Abdo and Elizabeth Wydra, chief counsel of the Constitutional Accountability Center. They faced off against John Yoo, a former Justice Department attorney known for authoring the Bush-era torture memos, and Stewart Baker, former NSA general counsel.

Intelligence Squared debates measure the audience's support for each side both before and after the debate, so the winner isn't just a question of who earned a plurality or a majority of votes, but who compelled more audience members to change their positions. Team civil liberties won on both fronts: 46 percent of the audience voted for the motion (with 17 percent voting against and 37 percent undecided) before the debate. By the end, a full 20 percent became convinced that the NSA's bulk collection of ordinary Americans' phone records is in direct violation of the Fourth Amendment. The debate ended with 66 percent voting for the motion, 28 percent against, and 6 percent undecided.

Poll Results

Read Alex's opening statement below. Or even better, just watch the debate:

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I'm honored to be here to discuss the mass collection of Americans' phone records by the NSA. Before getting into that program, though, it's critical to recognize that this debate is not just about phone records, and it is not just about the NSA. This is a debate about the kind of society we want to live in. Do we want to live in a country in which the government routinely spies on hundreds of millions of people who have done absolutely nothing wrong? Or do we want to be true to the vision of our nation's founders, who believed that the government should — as a general matter — leave us alone unless it has cause to invade our privacy. I think our founders got it right, and I hope you'll agree, which is why you should vote for the resolution: Mass collection of our phone records violates the Fourth Amendment.

Here's what it looks like to live in a society of mass surveillance:

Every time you place or receive a call, the government knows who you talked to, when the call started, and how long it lasted. The government knows (1) every time you called your doctor, and which doctor you called; (2) which family members you stay in touch with, and which you don't; and (3) which pastor, rabbi, or imam you talked to, and for how long you spoke.

The government knows whether, how often, and precisely when you called the abortion clinic, the local Alcoholics Anonymous, your psychiatrist, your ex-boyfriend, a criminal-defense attorney, and the suicide hotline.

If you called someone today — by tomorrow morning, the government will have a record of that call. It will keep that record for the next five years. And it is doing the same for every one of your calls, and for every one of the calls of millions of other Americans who have done nothing wrong.

***

This program is the most sweeping surveillance operation ever undertaken in the United States.

And it is unconstitutional for the simple reason that the Fourth Amendment does not permit dragnet surveillance. In fact, as my partner will explain in a few minutes, dragnet or indiscriminate surveillance was the principal evil the Fourth Amendment was designed to prevent.

And for good reason. Dragnet surveillance intrudes on one of the most fundamental of liberties in a free and democratic society — to be left alone by our government absent good cause.

The phone-records program breaks that promise. It places the entire country under surveillance without any suspicion. It threatens our ability to communicate freely without having to worry that the government is looking over our shoulders. It discourages journalists' sources from coming forward, knowing, as they now do, that their every call is being documented in a government database. And it causes ordinary Americans to hesitate before calling individuals or organizations they would rather not have in their permanent record, on file with the NSA.

***

Now, our opponents will attempt to minimize the NSA program's intrusiveness and exaggerate its effectiveness. They will argue (1) that the Fourth Amendment does not protect our phone records; (2) that there are protections in place for our privacy; and (3) that the program is necessary for our national security.

Those arguments are all wrong.

First, our phone records—particularly when they are collected in bulk—are extraordinarily sensitive. They reveal all of your associations: personal, professional, medical . . . all of them. In fact, your phone records can be every bit as sensitive as what you actually say on the phone. If you call someone other than your spouse routinely at 1 in the morning, you don't have to know what's said in order to know what's going on. If a government employee calls a reporter a dozen times before news breaks of an illegal government program, again, the call pattern tells the story. Our phone records are, in other words, a proxy for the content of our calls.

Our opponents will say that the Supreme Court has already decided that phone records are not protected by the Constitution. The argument is based on a Supreme Court case, called Smith v. Maryland, decided in 1979. But that case involved the collection for several days of an individual criminal suspect's phone records. The NSA's program—in contrast—involves the indefinite surveillance of millions of innocent Americans.

Our opponents will say that these differences don't matter, but it's truly bizarre to define the boundaries of privacy in the digital age based on a legal opinion issued before the internet as we know it was created—an opinion that many Supreme Court justices have already said is ill-suited to the digital era.

Second, the privacy protections that our opponents will focus on are a red herring. Those restrictions are weak. They can be violated, and they already have been thousands of times. But more importantly, under our opponents' theory, the Constitution simply does not apply to our phone records. This means that the government could collect them without any of the supposed privacy protections our opponents will describe.

Another fatal flaw with the argument is that the government's collection of our phone records violates our privacy even if there are restrictions on their later use. The collection itself is a violation. For that reason, we don't let the NSA keep a copy of every single email sent in the country, so long as it has protections in place. And we don't allow the NSA to put a video camera in our bedrooms, so long as it agrees not to press play without a good reason.

Third, bulk collection has not made us any safer. Virtually every independent review of the NSA's phone-records program has concluded that it hasn't stopped any terrorist attacks, and that the government can track down terrorists without mass collection, by issuing targeted requests to the phone companies.

A congressional review group said that after carefully studying the NSA's classified evidence, they could not identify "a single instance involving a threat to the United States in which the telephone records program made a concrete difference." A separate presidential review group came to the same conclusion. And the president himself has agreed with both of those reports.

***

One final point. Tonight's resolution is focused on phone records, but don't be fooled—the consequences are much, much broader. If the Fourth Amendment permits the bulk collection of our phone records, then it would permit the bulk collection of other similar records.

The problem is that virtually everything we do today leaves a digital trail of some sort. Whenever you send an email, visit a website, use your credit card, or even just walk around with your phone turned on—you are leaving a rich trail of digital breadcrumbs in your wake.

The arguments our opponents will make tonight would expose all of that information to routine, bulk collection by the government.

That's not the world that our framers envisioned when they drafted the Fourth Amendment, and it's not the world that you should accept. You should vote for the motion: Mass collection of our phone records violates the Fourth Amendment.

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Federal Appeals Court Tells Obama Administration to Stop Imprisoning Immigrants for No Reason

October 8th, 2014 No Comments   Posted in ACLU Nationwide
By Eunice Lee, Detention Attorney, ACLU, Immigrants' Rights Project

A federal appeals court sent a clear message to the Obama administration this week: stop locking away immigrants without bond based on old criminal convictions.

The court on Tuesday held that the U.S. Immigration and Customs Enforcement (ICE) broke the law when it picked up ACLU client Clayton Gordon on his way to work one day last year and locked him away without a bond hearing. ICE misapplied so-called "mandatory" detention to Mr. Gordon – a lawful permanent resident who has lived here for over 30 years and has served in the U.S. Army – based on a single, drug conviction that he served one day in jail for in 2008.

By the time ICE encountered Mr. Gordon in June 2013, he had returned to his family, gotten engaged, had a child, bought a house, and started plans to build a halfway house for his community. He also had no subsequent run-ins with the law. But none of this factored into ICE's decision, and no judge had an opportunity to consider these factors for release until ACLU sued on behalf of Mr. Gordon and others like him.

Instead, the government took the shameful position that the U.S. army veteran had no right to a bond hearing at all.

Thankfully, the court disagreed. Noting the "harsh consequences of uprooting these individuals from the community," the court held that people who have returned to their families and rebuilt their lives, such as Mr. Gordon, must be able to ask a judge for release.

This is basic due process, as well as common sense.

As the court observed, "those who have resided in the community for years after release cannot reasonably be presumed either to be dangerous or flight risks. This is particularly so given the breadth of offenses to which [mandatory detention] applies, and the inclusion of offenses such as non-violent drug possession."

In other words, it's not okay to imprison people without bond when they don't need to be locked away. In fact, it's unconstitutional and immoral. Not to mention wasteful. After Mr. Gordon finally got his bond hearing earlier this year, the immigration judge immediately ordered his release on bond. He's now back living peacefully with his family.

You have to ask yourself: What, exactly, did we spend tens of thousands of dollars of taxpayers' money and waste months of Mr. Gordon's life for?

Fortunately there's an easy solution. Just give immigrants a bond hearing and the due process everyone deserves.

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