Don’t Make the Internet Angry…

September 9th, 2014 No Comments   Posted in ACLU Nationwide
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office

...You wouldn't like it when it's angry. And it's kinda angry.

On September 10, the ACLU will join an array of Internet companies and advocates in an "Internet Slowdown." Organizers plan to pepper sites with the "spinning wheel of death" to illustrate a world without robust net neutrality protections that prevent broadband providers from slowing down or blocking sites and services that can't afford to pay a premium for faster access to consumers.

The event comes a week before the Federal Communications Commission's (FCC) deadline for final comments on its proposed net neutrality rules, which would likely permit these "fast lanes." Allowing this kind of preferential access to consumers would raise costs for the scrappy start-ups – the next Netflix or Google – and likely lead to higher prices for Internet users.

The ACLU has long argued for the FCC to finally reclassify high-speed broadband providers like Verizon and Comcast as "common carriers," similar to utility companies or the old phone system. Reclassification is the surest way to prevent providers from splitting the Internet into fast lanes and slow lanes. No blocking. No discrimination. No spinning wheel of death. Just the wide open Internet: a space for free speech and innovation to thrive.

The slowdown also comes on the heels of a landmark speech by FCC Chairman Tom Wheeler, in which he detailed the severe lack of competition in the market for high-speed broadband. Truly high speeds are increasingly becoming a prerequisite for customers to take full advantage of the Internet. Unfortunately, as Wheeler noted, the vast majority of Americans have at most one option when shopping for high speed service.

That lack of competition is exactly why we need real net neutrality rules now. We enforce antitrust laws to ensure that companies who provide poor service or charge too much face competitors that can lure away customers and force them to do better. But consumers have little protection in the broadband market. We need the FCC to step in and protect users who simply can't vote with their feet and move to another provider.

Wondering how best to celebrate Internet slowdown day? There's still time to file comments with the FCC urging it to reclassify broadband service as common carriage under Title II of the Communications Act of 1934. Those are due September 15. Want to do more? Call your member of Congress and your senators, and ask them what they are doing to protect the open Internet.

It should be an exciting day of action, not unlike the protest shutdown by Wikipedia a few years ago against the proposed Stop Internet Piracy Act, or SOPA. That was the last time the government really faced the ire of the Internet community – and it killed the bill.

As we saw with SOPA, the Internet may be slow to anger, but you really wouldn't like it when it's angry. We'll get a taste of that on September 10.

For more on what's at stake, look no further than John Oliver:

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Victory! Town Will No Longer Treat Domestic Violence Victims as Nuisances

September 8th, 2014 No Comments   Posted in ACLU Nationwide
By Sandra S. Park, Staff Attorney, ACLU Women's Rights Project

Three strikes and you're out of your home and on the street – all because you called 911 for help. That was the nightmare faced by Lakisha Briggs and other residents of Norristown, Pa.

Under a local ordinance, three calls to the police in four months, including for protection from crimes such as domestic violence, would result in revocation of the landlord's rental license and removal of the tenant for trespassing. A second version of the ordinance imposed steep fines on the landlord that could be avoided if the landlord evicted the tenant, even if she was in dire need of emergency or police assistance.

These types of ordinances – often referred to as nuisance ordinances, crime-free ordinances, or disorderly behavior ordinances – legitimize victim-blaming with the force of law. By treating calls to the police as a nuisance, they jeopardize the security of victims of crime, punish them for seeking protection, and undermine public safety.

Ms. Briggs experienced the harshness of Norristown's ordinance first hand, when she was assaulted by her ex-boyfriend in 2012. He was arrested, but a police officer told her that more calls to the police would lead to her eviction. The law trapped Ms. Briggs in a vicious Catch-22: call the police when her ex-boyfriend returned to attack her and lose her home, or keep her home and perhaps lose her life.

After Ms. Briggs suffered additional violence, including being stabbed in the neck with a broken glass ashtray, she and her young daughter were threatened with eviction and removal from their home. The ACLU and the ACLU of Pennsylvania, with the law firm Pepper Hamilton, filed a lawsuit challenging the ordinance, arguing that it violated Ms. Briggs' rights under the Constitution and federal law.

Today, we reached a settlement with Norristown. Under the agreement, Norristown will pay $495,000 in compensation and attorneys' fees to Ms. Briggs. It also repealed its ordinance and promised not to pass another law that would punish residents and landlords as a result of requests for emergency assistance. This is an important step forward for Norristown, one that will contribute to rebuilding community trust with law enforcement and more effective responses to crimes like domestic violence.

But similar nuisance ordinances are on the books across the country. Few cities and towns consider the impact these laws have on access to police and emergency services by those who sincerely need help. Nor do they consider the impact on homelessness rates before enacting them. Furthermore, the ordinances pressure landlords to handle criminal situations when such duties properly belong to law enforcement.

For example, one landlord received notice from the police department that his property was in violation of a nuisance ordinance in Wisconsin because his tenant, a domestic violence victim, had been beaten and called the police. The landlord responded to the police: "We suggested she obtain a gun and kill him in self-defense, but evidently she hasn't. Therefore, we are evicting her."

The federal government has recognized the troubling effects of these ordinances and is taking action. After we filed the lawsuit, the Secretary of the U.S. Department of Housing & Urban Development initiated a separate Fair Housing Act complaint against Norristown, alleging that Norristown violated the law by discriminating against domestic violence survivors, the vast majority of whom are women. HUD investigated Norristown's implementation of the ordinance and pushed with us for its repeal. Its complaint is still pending as it negotiates a separate agreement with the municipality.

This federal oversight is vital, and it puts municipalities on notice that these ordinances may conflict with their civil rights obligations. State legislatures should also step in by passing laws that prohibit municipalities from punishing tenants and landlords based on police or emergency assistance.

Crime victims – including domestic violence victims – are not nuisances. They deserve access to police services and housing stability, not eviction and more violence.

The ACLU wants to hear from anyone who has been affected by these ordinances, including landlords, tenants, fair housing and domestic violence advocates. If you have a story to share, please fill out our survey.

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Getting It Dead Wrong for 30 Years

September 8th, 2014 No Comments   Posted in ACLU Nationwide
By Cassandra Stubbs, Director, ACLU Capital Punishment Project

According to Supreme Court Justice Antonin Scalia, Henry Lee McCollum deserved to die for the brutal rape and murder of 11-year-old Sabrina Buie. There's just one problem, and a frequent one in death penalty cases: Henry Lee McCollum didn't do it.

Instead of tracking down the true killer, police and prosecutors went after Henry Lee McCollum and his half-brother Leon Brown, two intellectually disabled and innocent teenagers. While his mother wept in the hallway, not allowed to see her son, officers interrogated McCollum for five hours, ultimately coercing him to sign a confession they had written. In a trial without forensic evidence and plagued by racial bias, these two half-brothers with IQs in the 50s and 60s were sent to death row. Henry Lee McCollum and Leon Brown, whose sentence was later reduced to life in prison, have been behind bars for the last 30 years.

Last week, they were finally exonerated in another disturbing example of how deeply flawed the death penalty is, particularly for African-American men in the South.

Death penalty supporters have long cast Henry Lee McCollum as a mythic boogeyman. After North Carolinians passed the Racial Justice Act, a law outlawing racial bias in capital cases, opponents of the law mailed sensationalized fliers showing McCollum's mug shot, claiming it would lead to the release of convicted killers like him. Justice Scalia depicted McCollum as a strong argument against death penalty abolition because of the gruesomeness of Sabrina Buie's murder.

There is a perverse irony here. Henry McCollum, long invoked as an argument for the death penalty, is innocent. Instead of the ultimate threat, he represents the ultimate injustice: a government condemning an innocent man to die. McCollum is not a boogeyman. Rather he is a case study of everything wrong with a broken capital punishment system that has no place in this country.

In another cruel irony, McCollum's boogeyman status was successfully used to thwart the Racial Justice Act, which proved racial bias in four cases before it was repealed last year. And that's tragic because North Carolina and other southern states desperately need laws like these to protect the innocent from racial bias.

Southern states, like North Carolina, are the most likely to wrongfully convict and sentence innocent people to death. And in those states, black defendants bear the greatest burden of wrongful convictions. Of the nine men wrongfully convicted and sentenced to death in North Carolina, eight are men of color and seven – including McCollum and his half-brother - are black.

Race showed up in McCollum's trial from the start. The trial prosecutors in McCollum's case deliberately and unconstitutionally struck multiple qualified black jurors from jury service. This is a common practice: statewide, prosecutors were more than twice as likely to strike qualified black jurors as all other jurors.

For years now, North Carolina prosecutors have known about the statistical evidence showing widespread bias in the way they pursue capital convictions. Rather than addressing the findings and changing their practices, they have fought the Racial Justice Act and tried to keep statistical evidence of racial bias out of court. These misplaced priorities further erode the capital punishment system's ability to produce accurate and just results, leading to errors that can never be erased.

North Carolina's legislators now need to take a close look at Henry Lee McCollum and Leon Brown and see how racial bias distorts and undermines the state's criminal justice system. Two innocent men are now middle aged, leaving prison after being locked up since they were teenage boys. Sabrina Buie's loved ones have been strung along for three decades by police and prosecutors, believing two innocent men took their little girl from them in a rural North Carolina soybean field. And a community's trust in the ability of its courts to produce a just outcome – accurate and untainted by racial bias – has been eroded.

After three decades of needless injustice, it is good to celebrate the fact that Henry McCollum and Leon Brown are going home. But the statistics tell us that there are many more like them, many who made it to death row only because of a broken and biased system. We need more protections, not fewer, to reduce the risk of wrongful convictions and eliminate racial bias. Ending the death penalty would be a good start.

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Federal Judge Sees Through Ohio’s Bogus Arguments For Cutting Early Voting

September 5th, 2014 No Comments   Posted in ACLU Nationwide
By Sean Young, Staff Attorney, ACLU

While it may be technically possible for there to be a sufficiently good reason to cut early voting – one that isn't just a sorry excuse for voter suppression – we haven't seen it yet.

Yesterday a federal judge in Ohio agreed, ruling that the state's gratuitous cuts to early voting must be restored for the upcoming midterm elections, precisely because all of Ohio politicians' TV-made talking points about fraud, cost, or "uniformity" – the same set of talking points being used by politicians around the country – were "relatively hollow" and "not necessarily supported by logic." When waves of political noise crash against the rocky shores of logic, logic usually wins out.

As the court recognized, after disastrously long lines in 2004 disenfranchised thousands of Ohio voters, the state created a 35-day early voting period, including a week in which it was possible to register and vote on the same day ("same-day registration"). Since then, hundreds of thousands of Ohioans have taken advantage of these opportunities because of the flexibility they allow. Lower-income voters have used them to cast votes on evenings and weekends, often because of difficulties taking unpaid time off of work to vote or arranging for childcare during the day. African-American churches have also seized on weekend voting, organizing transportation to the polls after Sunday services.

Ohio politicians did not like what they saw, and in early 2014, they slashed into this early voting period. But they did not simply reduce the number of early voting days – they went out of their way to target the early voting days and times that poor and African-American voters used the most: Sundays, evenings, and same-day registration.

As one politician put it, "I guess I really actually feel we shouldn't contort the voting process to accommodate the urban – read African-American – voter-turnout machine."

Because Ohio could not give any good reason for these cutbacks under the harsh light of judicial scrutiny, the federal court ruled that these cuts to early voting, in disproportionately targeting poor and African-American voters, violated both the U.S. Constitution and the Voting Rights Act.

The court also noted that when constitutionally unacceptable conditions – such as the widespread disenfranchisement of Ohio voters in 2004 – leads to the creation of methods of democratic participation upon which hundreds of thousands of its citizens (especially its most vulnerable citizens) come to rely, the state cannot suddenly eliminate that form of participation without a good reason.

That is why the howls that you hear from Ohio politicians and armchair commentators in response to this decision – emphasizing Ohio's still-large number of early voting days, suggesting that Ohio can never reduce its early voting period, and faux-worrying that this decision means that every single state is now constitutionally required to have X many days of early voting – can be ignored.

Taking away an existing right that thousands have depended on is worlds of difference from not providing a method of participation that no one in the state has ever used. And nothing suggests that Ohio can never reduce its early voting period – they just need to come up with a good reason before doing so.

As the court explained, "despite the expansiveness of Ohio's voting system, the weakness of the offered justifications render them essentially arbitrary action when viewed against the burdens they impose on groups of voters. Such action is prohibited by the Equal Protection Clause."

For Ohio voters, yesterday's ruling means that the opportunity to register and vote on the same day and the first week of early voting has been restored. Absentee and early in-person voting will begin on September 30 rather than October 7. There will be multiple Sundays – October 26 and November 2 – for early in-person voting. From October 20-31, there will also be weekday evening hours for early in-person voting, and counties that want additional early in-person voting hours will be allowed to offer it.

For all of us, this means that this judge saw cuts to early voting for what they are: an opportunity for politicians to choose their voters.

The battle, however, is not over yet. In North Carolina, a judge ruled that cuts to early voting could continue. But now we celebrate for the people of Ohio who will not have politicians getting in the way of their right to vote.

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A Taxicab Confession for a Post-Ferguson America

September 4th, 2014 No Comments   Posted in ACLU Nationwide
By Dennis Parker, Director, ACLU Racial Justice Program

I had just finished a conversation with a local reporter comparing the events in Ferguson, Missouri with the disproportionate arrests of black people in Shreveport, Louisiana, for nonviolent offenses, when I noticed the driver had taken an interest in my phone call.

Perhaps embarrassed because it revealed how closely he was paying attention to the conversation, he asked me whether my job involved dealing with discrimination. When I told him "yes," and that I worked for the American Civil Liberties Union, a very different kind of taxicab confession began on my way to the airport -- one that I wish more white Americans could have heard.

The driver, a middle-aged black man, described frequent interactions with police in which he felt he was treated disrespectfully and charged with traffic offenses he did not commit. He would plead his case, but it didn't matter. He was driving while black. He described the unwanted attention he received when his family was the only black family in a park in a white neighborhood. Despite making sure his family was always well-dressed on these outings, the stares came nonetheless, because there are some things you cannot change. He described the fear that he felt for his son and the need to give him "the talk" about how to behave when dealing with police, the bitter lesson that all black parents -- no matter how wealthy they are and where they live -- feel compelled to give their sons.

Most of all he described the bewilderment and frustration that he felt as the son of Haitian immigrants. Even though he unfailingly tried to follow all the rules -- to go to school, to work hard at everything, to assimilate -- he still seemed to be treated like an unwelcome person in society. It seemed to him that nothing could insulate him from the unfair treatment that he experienced because of his race.

Sadly, that sense of being singled out for discriminatory treatment by police and others is not peculiar to recent black immigrants. The sense of somehow being outside of the broader society is felt equally by black people, like myself, whose families have lived in the country for hundreds of years.

That experience of frustration has been heightened for him and for many others by the police shooting of the unarmed teenager, Michael Brown, in Ferguson, Missouri. The repressive and excessive actions of law enforcement following the shooting added just enough air to burst the thin bubble that we live in a "post-racial" society. Much has been written about the shooting itself: the insensitive police response immediately following, which resulted in Michael Brown's bloody body left lying in the street in full view of his neighborhood for four hours; the delayed and selective release of information about the shooting designed to impugn the character of the victim; and the militarized police response to overwhelmingly black protests and the heavy-handed attempts to muzzle the press covering the event.

Further investigation will undoubtedly shed much-needed light on the events, but it is unlikely to do anything to dispel the anger and frustration resulting from what seems like a relentless succession of similar incidents, each of which is difficult or impossible to imagine happening in a community other than one inhabited by people of color.

Perhaps the most disturbing aspect of recent events is the enormous racial gulf it reveals. A number of polls demonstrate quite clearly that how you view the events in Ferguson is strongly affected by your race. One poll showed that while 80 percent of blacks felt that Ferguson and its aftermath demonstrated serious racial issues, a 47 percent plurality of whites, however, felt that it didn't.

Black and brown people are not so much strangers in a strange land, you see. Far worse, we are strangers in our own homeland.

There have been too many instances where television news has portrayed the shooting of unarmed black men or a SWAT team invading the apartment of innocent people of color with battering rams and flash grenades for African-Americans to feel differently.

Those images, as well as the recent images of militarized policing in Ferguson and the not-too-distant one of black people desperately awaiting assistance in the wake of Hurricane Katrina, have accumulated in the memories and souls of people of color. These images, all of them seemingly incompatible with frequently espoused American values, seem not to affect a significant percentage of white people, who dismiss the continuing, sad influence of structural racism as an example of paranoia on the part of people of color.

At best, many well-meaning people will argue that it is class, not race, which is the cause of all problems in the United States. This belief persists in spite of the studies showing persistent discrimination in housing, employment, and lending against people of color in all socio-economic levels. It is this apparent lack of empathy and inability to acknowledge the daily fears faced by people of color that is most daunting. It is one thing to suffer. It is another thing entirely, and much more painful and infuriating, to be told that your suffering isn't real.

Ferguson naturally and rightly has elicited calls for a host of reforms, many from the ACLU, to eradicate racialized policing. Investigations have been called for; federal and state anti-profiling legislation will be sought; and we continue to push the Obama administration to issue guidance banning profiling by law enforcement. People will urge the greater use of body-worn and patrol-car cameras. Training and data collection will be emphasized as will the need for rigorous prosecutions.

All of those things should and must happen.

But we also need to recognize that these measures, as important as they are, deal primarily with the symptoms of the problem. Prejudice and racism remain, as they always have, the real problem: the predisposition to believe that people of color are criminals, the odious idea that the very lives of black and brown people are inferior to others, and the failure to empathize with the situation of people seeking to obtain the same quality of life as everyone else.

Until this happens, black and brown people -- whether lawyers or drivers-- will continue to have to explain to their children the same heartbreaking reality: For too many people, who you are is less important than whom they assume you'll be.

This was originally posted on The Huffington Post.

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The Video Revolution in Policing

September 4th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

We may have reached the point where video technology is producing a full-fledged revolution in policing. That revolution has been crystalized, or at least revealed by, the events in Ferguson.

The first element of that revolution is a growing expectation among Americans that any dramatic event that takes place in public will be recorded on video. As I argued last January:

We are currently transitioning toward a new set of societal expectations surrounding video surveillance. Under the old expectation, the default expectation was that any given event would not be photographed. In this mindset we hear people exclaim in wonderment when an incident "happens to" get caught on camera. That is rapidly being replaced by a new mindset in which the default expectation is that something taking place in public will be recorded.

Sure enough, in the wake of Michael Brown’s shooting in Ferguson, we saw much discussion of video, or the lack of it. The result of this trend is that, like it or not, the actions of police officers will increasingly be photographed. Officers or departments can fight mandates to wear body cameras, they can try turning them off when they don’t want their actions recorded, they can refuse to release video to the public, they may allow mysterious technical “accidents” to swallow up video that has been captured, they can try to intimidate citizens into not photographing them, they can even try to steal cameras or memory chips (or seize them as “evidence”) in an effort to prevent video from coming to light. But as the police (along with the rest of us) become increasingly enveloped by video cameras, none of these measures will ultimately withstand the pressure of public expectation. “Something bad has happened? Well let’s see the video!”

If there is no video, that in itself will increasingly come to be viewed as suspicious, and the police will find their credibility weakened.

That dimension of the video revolution in policing will in turn have an even more significant effect. To illustrate how, consider the following passage from Graham Greene’s darkly comic 1958 spy novel, Our Man in Havana:

        ‘How are you certain that Cifuentes is not my agent?’
        ‘By the way you play checkers, Mr. Wormold, and because I interrogated Cifuentes.’
        ‘Did you torture him?’
        Captain Segura laughed. ‘No. He doesn’t belong to the torturable class.’
        ‘I didn’t know there were class-distinctions in torture.’
        ‘Dear Mr Wormold, surely you realize there are people who expect to be tortured and others who would be outraged by the idea. One never tortures except by a kind of mutual agreement. . . . Dr Hasselbacher does not belong to the torturable class.’
        ‘Who does?’
        ‘The poor in my own country, in any Latin American country. The poor of Central Europe and the Orient. Of course in your welfare states you have no poor, so you are untorturable. In Cuba the police can deal as harshly as they like with emigres from Latin America and the Baltic States, but not with visitors from your country or Scandinavia. It is an instinctive matter on both sides. Catholics are more torturable than Protestants….
        ‘One reason why the West hates the great Communist states is that they don’t recognize class-distinctions. Sometimes they torture the wrong people. So too of course did Hitler and shocked the world. Nobody cares what goes on in our prisons, or the prisons of Lisbon or Caracas, but Hitler was too promiscuous. It was rather as though in your country a chauffeur had slept with a peeress.’
        ‘We’re not shocked by that any longer.’
        ‘It is a great danger for everyone when what is shocking changes.’

Although the cynicism of Greene’s police captain is exaggerated, there is certainly a core truth here: that as “an instinctive matter” the police know whom they can torture—let us broaden the concept and say “mistreat”—and whom they cannot.

In America, African-Americans, especially but not exclusively those in poor inner-cities, are part of the mistreatable class. Take for example a video like this one, in which a St. Paul man is Tasered (Tasers often being used for punitive torture in response to the act of “dissing a cop”) and arrested for no legitimate reason after he had questioned why he was being ordered to leave an apparently public seating area while waiting to pick up his children from school. It is very hard to imagine that this would have happened to an otherwise identical man who was white.

What about the point Greene’s character makes about “mutual agreement”? The St. Paul man, and most other victims, certainly don’t seem to consent to their mistreatment. Perhaps Greene refers to the fact that oppressed people in some times and places, when their oppression is bad enough, quite rationally recognize that any protest would be futile—a helplessness that contributes to a broader social reality that the authorities are “allowed” to mistreat certain people.

Invisibile or not believed

If police have generally been able to get away with abusing people, then much of the problem lies in the fact that judges, juries, prosecutors, and the public have too often deemed police officers more credible than abuse victims—especially black and poor victims. Part of the power that police have wielded comes from knowing that, should their victims complain, they will experience the nightmare of not being believed.

I give the American public enough credit to believe that if police have had wide latitude to abuse black people (and others in Greene’s “torturable classes”), it is only because such abuse is either invisible or not believed. There may be a segment of the population that, out of fear and prejudice, would like to give the police license to abuse African-Americans, but I think the public at large wouldn’t tolerate it—if nothing else, because it does not comport with the story we tell ourselves about who we are.

So that is the other part of the video revolution in policing: increasingly, abuse of this kind will no longer be hidden, and the victims will be believed. Without his cellphone camera, the St. Paul man may well have received jail time, or at best have just been sent along to stew in his own anger. Instead, he’s at least had the satisfaction of seeing his situation become a controversy, sparking press coverage and forcing a response from the police. And his formal complaint may or may not be satisfactorily addressed, but it will certainly not be buried.

If the police find it increasingly hard to abuse citizens, that will be true not only because there will often be video (or hard questions about its absence), but also because, as Conor Friedersdorf summed up nicely in the headline of a recent piece, “Video Killed Trust in Police Officers.” The antecedent of course was the Rodney King beating, but in the past several years the combination of a video camera in every pocket and YouTube has generated an increasingly regular supply of videos showing civilians being abused by officers. This has opened a broader spectrum of people’s eyes to these realities, and that spectrum will only grow wider over time.

That Ferguson may represent a watershed moment in this dynamic is somewhat ironic since the shooting of Michael Brown was not caught on video. But the very lack of a video record of Brown’s shooting has only confirmed the dynamic I discussed above, sparking widespread calls for mandatory police body cameras (and prompting the Ferguson police to adopt the technology several weeks after the shooting). And the video-driven “death of trust” in police probably played a role in amplifying the situation in Ferguson—drawing the interest of reporters and the national public, influencing the balance of opinion about how likely it was that the police officer was in the wrong, and generally changing how the situation was perceived.

The Ferguson uprising may be forgotten in a year, but there’s also a chance that it will come to be seen as a significant inflection point—the moment when awareness crystalized among both African Americans and police officers that there is no longer a "torturable class" in the United States.

Nude Celebs and the NSA

September 3rd, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

Writing in the New Republic, Yishai Schwartz notes the confluence of two privacy stories yesterday: the theft of celebrities’ private nude photos stored in Apple’s iCloud, and my colleague Alexander Abdo’s argument before the Second Circuit Court of Appeals in our challenge to the NSA’s domestic telephone metadata collection program. Schwartz argues that we and other privacy advocates are misguided to place such focus on the NSA because “the real danger to contemporary privacy isn’t government intrusion at all: It’s the weaknesses of private corporations.”

He writes,

The ACLU portrays a future where the government sweeps up enough data to piece together our most intimate secrets. Federal agents might never have legal access to our nude photos, but our medical conditions, IQ’s, and romantic lives are fast becoming an open book. All it would take would be another Nixon or Hoover to put this data to dastardly uses. Better to leave this data in the hands of the private sector, argue the privacy advocates.

This is misguided, he argues, asking:

Is another Nixon, and particularly one powerful enough to overcome layers of post-Watergate oversight and compliance mechanisms, really more likely than an iCloud or Gmail hacker? When corporations cannot even be relied upon to secure our content, it seems naïve to automatically entrust our privacy to the private sector rather than the government. And it seems odd to allow Verizon commercial access to the same information that we deny the NSA for the purpose of counterterror.

In the modern era, it is the large corporations that pose the greatest threat to privacy. Google, Amazon, and Facebook may know things about us that we have never written in an email or stored in a file. We may never even know what is included in the mosaics of our lives that corporations are already weaving. With the government, we can take comfort that layers of bureaucracy, minimization procedures, and oversight prevent tyranny and mitigates the damage from leaks. But with private corporations, we have no such assurances.

From time to time we hear these kinds of arguments, which convey the message, “when it comes to privacy invasion, companies are far scarier than the government, so all this fuss about the government invading privacy is overblown and it’s the companies we should be paying attention to.” (Occasionally we hear the reverse as well.)

We shouldn’t play this game. Our privacy is under assault from the government and from corporations. We can talk about which threat is “bigger,” but such conversations always threaten to imply that we shouldn’t worry about one threat or the other. At the end of the day there’s no reason we shouldn’t expect our privacy to be protected from both, and work toward that end. We live in a democracy, we are in control of our destiny, and if we want we can protect ourselves from spying by powerful institutions—government and corporate alike—through good public policies.

Not to mention that the distinction between government and corporate assaults on privacy is often a distinction without a difference, as we have been pointing out since at least 2004. The government regularly purchases or requisitions information from private-sector databases—and in some cases orders companies to collect, maintain, and monitor data on its behalf—even while the private sector pushes new data and surveillance products on the government.

The threat that companies pose to privacy is every bit as bad as Schwartz describes, but he significantly understates the privacy threat from government. For example he:

  • Confines his discussion of government spying to just one program (telephone metadata collection) of the dozens that have been revealed so far. (None revealed so far involve the secret collection of nude photos, but we know the NSA’s British partner does collect such images.)
  • Hinges his argument on acceptance of the artificial and out-of-date distinction between content and metadata.
  • Takes internal bureaucratic “oversight and compliance mechanisms” too seriously as meaningful protections of privacy. (Even the limited information we have about the effectiveness of such mechanisms that has leaked out via the FISA Court is non-confidence-inspiring, to say the least.)
  • Ignores the long history of government misuse of surveillance powers for political purposes.
  • Fails to grapple with the significant fact that the government has the coercive authority to deprive us of life and liberty, something no Silicon Valley giant can ever do.

Finally, Schwartz misdescribes the position of privacy advocates. Our aim isn’t to shift the collection and storage of huge amounts of records about people’s activities from the government to the private sector, as he suggests; we want to stop that kind of data tracking by any institution—or more precisely put such data under the control of the individual.

The U.S. Government Can Brand You a Terrorist Based on a Facebook Post. We Can’t Let Them Make up the Rules.

September 2nd, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Arjun Sethi, ACLU

This piece originally appeared at the Guardian's Comment is Free

The US government's web of surveillance is vast and interconnected. Now we know just how opaque, inefficient and discriminatory it can be.

As we were reminded again just this week, you can be pulled into the National Security Agency's database quietly and quickly, and the consequences can be long and enduring. Through ICREACH, a Google-style search engine created for the intelligence community, the NSA provides data on private communications to 23 government agencies. More than 1,000 analysts had access to that information.

This kind of data sharing, however, isn't limited to the latest from Edward Snowden's NSA files. It was confirmed earlier this month that the FBI shares its master watchlist, the Terrorist Screening Database, with at least 22 foreign governments, countless federal agencies, state and local law enforcement, plus private contractors.

The watchlist tracks "known" and "suspected" terrorists and includes both foreigners and Americans. It's also based on loose standards and secret evidence, which ensnares innocent people. Indeed, the standards are so low that the US government's guidelines specifically allow for a single, uncorroborated source of information – including a Facebook or Twitter post – to serve as the basis for placing you on its master watchlist.

To keep reading the full column on the Guardian's Comment is Free page, click here.

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Lessons From the Celebrity iCloud Photo Breach

September 2nd, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Chris Soghoian, Principal Technologist and Senior Policy Analyst, ACLU Speech, Privacy and Technology Project

Based on initial media reports, it seems that intimate, private photographs from several celebrities' online accounts have been accessed without their consent and widely shared on the Internet. For now, many details about the breach (or breaches) remain unclear. One working theory, which is supported by anecdotal evidence, suggests that a security vulnerability in Apple's iCloud service may have been exploited to gain access to the celebrities' accounts and download their photos.

The blame game

In the flurry of news after the photos surfaced, several commentators smugly suggested that some blame should fall on the victims, either because they used weak passwords, or because they were using their phones to take sexually explicit photographs. This is ridiculous.

These celebrities exhibited behavior that is perfectly normal. As researchers like Joseph Bonneau have documented at length, most people choose bad passwords, and reuse them for multiple accounts. Similarly, the fact that these celebrities took sexually explicit photographs of themselves or were photographed by their partners using mobile phones is just further evidence that deep down, celebrities are just like the rest of us. As the old saying goes, the best camera is the one that's with you, and as our cell phones have morphed into tiny computers with the ability to shoot photos and movies, it isn't surprising that people are using them to capture private moments too.

For the victims whose privacy has been violated, this experience is awful. For the rest of us, it can be a teaching moment and an opportunity to think about what we expect from the companies that build the devices and online services we trust with our most private information.

Could Apple have prevented this?

According to media reports, a long-standing vulnerability in Apple's "Find My iPhone" service was exploited to gain access to iCloud accounts. Many online services will temporarily lock access to individual accounts after a few failed login attempts, in order to prevent a so called brute force attempt to crack an account's password by repeatedly trying common passwords until the correct one is discovered. Most of Apple's services had used such a rate-limiting mechanism, except the Find My iPhone service. Apple has, over the past few days, fixed this issue.

In the days and weeks to come, Apple will no doubt be justifiably criticized for failing to protect the Find My iPhone service with a rate-limiting mechanism. There are, however, other deeper issues worth probing, such as the default security settings that mobile phones ship with, and the extent to which these devices and synchronized online services can withstand an attack by determined adversaries.

One password to rule them all

It is likely the case that many of the victims also had poor quality passwords, which increased the ease with which the hackers could gain access to their accounts. The use of poor, low entropy passwords is not specific to Apple accounts – but Apple requires their customers to regularly enter their password on their phones whenever they wish to download an app from the company's App Store, even for free apps. This encourages users to pick short, easy-to-enter passwords.

No doubt, Apple's privacy and security teams will be carefully analyzing the security of their authentication systems as a result of this incident. Apple should seriously consider permitting users to have a short, easy-to-remember password or PIN to install apps from the app store for on-device entry, which will allow them to have a longer, higher-quality password for remote access to iCloud.

The downside to default, automatic cloud backups

It appears to be that iOS devices are automatically opted-in to Apple's Camera Roll feature, which uploads all photos to Apple's iCloud backup service. As a result, many users are likely using this service without realizing it and a result, do not understand the associated security and privacy risks.

There are, no doubt, useful aspects to nudging users towards automatic online photo backups – they ensure that a lost or stolen iPhone does not result in the permanent loss of photos, without requiring that the device owner first configure a backup service. Similarly, photos taken during a protest are instantly archived online, which can be particularly useful if police seize phones or force people to delete photos they have taken.

Automatic online backups of photographs may be appropriate for photos of your friends, kids, and pets. However, given that people also routinely take intimate, private photos with their smartphones, automatic backups may not always be desirable. One obvious solution to this is to provide users with an easy way to take private photos that won't be uploaded, while still offering the convenience of automatic backups for the majority of photos that aren't sensitive.

The need for a private photo mode

Apple, Google, Microsoft, and Mozilla already include "private browsing" modes in their web browsers. Clearly, these companies recognize that there are certain activities that their customers will engage in online that should remain private (or at least should not be revealed in the browser's history).

One thorny problem with these private browsing modes is that the companies steadfastly refuse to publicly acknowledge how they are actually used – that is, instead of recognizing that they are used by millions of people to look at pornography, the companies instead describe them as being useful for shopping for engagement rings or looking up health information. No doubt, these are occasional uses, but they aren't the majority use. The companies know this, but they don't want to admit it.

This prudish approach to describe private browsing may make life easier for the companies' marketing departments, but it also seriously undermines user education efforts when the companies refuse to describe how their products and services are actually used. Effective privacy education should not be communicated with a nudge and a wink.

Apple, Google and the other big tech companies should acknowledge that millions of their customers regularly use their products to engage in sensitive, intimate activities. These companies can and should offer a "private photo" option for sensitive photos that prevents them from being uploaded to the cloud. More importantly, they should treat their customers like grownups and educate them about how they can use their products and services to engage in intimate activities, as safely as possible.

Challenge to NSA’s Mass Surveillance Inches Way Up Court System

September 1st, 2014 No Comments   Posted in ACLU Nationwide
By Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project

This morning, we're heading back to court to challenge the NSA's phone-records program, this time in the Second Circuit Court of Appeals in New York.

Several district courts have already ruled on the program, with one calling it "almost Orwellian." And, of course, the secretive Foreign Intelligence Surveillance Court has approved it many times. But one consequence of the excessive secrecy surrounding the program is that it has never been reviewed by the Supreme Court or even by a federal appeals court. Until now.

Our lawsuit and the several similar lawsuits that have been filed around the country are significant for many reasons. The phone-records program – under which the NSA collects a record of the calls made by millions of Americans every single day – is perhaps the most sweeping surveillance operation ever directed against the American public by our government. It raises profound questions about the role of government in a democracy and about the future of privacy in the digital era. And it threatens our constitutional rights in ways unimaginable by the founders of our country.

As we argued in a brief to the court:

Each time a resident of the United States makes a phone call, the NSA records whom she calls, when the call was placed, and how long the conversation lasted. The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she did not; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the suicide hotline, and the child-services agency.

The legal challenges are also significant for the simple fact that they have forced the government to defend its program in public. For over a decade, the government has thwarted all attempts at public judicial review of the legality of the surveillance programs it inaugurated in the aftermath of 9/11. It erected procedural barriers and invoked the state-secrets doctrine to have those challenges thrown out of court.

But today, we're one step closer to having a definitive ruling on the legality of at least one of those programs. We are optimistic that the court will agree with us that the bulk collection of sensitive information on millions of innocent Americans is unlawful.

Stay tuned for our update after the hearing or watch it on C-SPAN here

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