This Bill Is Mandating Perfect Border Security, Using Your Tax Dollars, Without a Plan.

January 21st, 2015 No Comments   Posted in ACLU Nationwide, Washington Markup
By Chris Rickerd, ACLU Washington Legislative Office

Michael McCaul, chairman of the House Homeland Security Committee, last year proposed a logical approach to border security: In rejecting measures to put the "cart" of border spending before the "horse" of measuring what resources are needed, he introduced legislation that, in his own words, "demands a plan, verified by outside experts, before one dollar is spent on new resources."

His bill passed the committee unanimously.

Nevertheless, the same committee will be marking up a bill today, introduced by none other than Chairman McCaul, that's completely opposed to the philosophy the Texas Republican put forward less than a year ago.

The Secure Our Borders First Act would authorize $10 billion in spending over the next decade, including on drones, fencing, massive road construction, Border Patrol bases, state National Guard deployments, and even state and local police. It would also lock in inflexible minimum levels of staffing for Customs and Border Protection officers and agents, transfer military equipment from war zones to the borders, and allow Border Patrol unprecedented access to public lands. This last provision would override environmental protections in what The Coalition of National Park Service Retirees previously called, "the most direct assault on national parks ever to be advanced at any level in any Congress in U.S. history."

Last year's McCaul's bill, the Border Security Results Act, would have required the Department of Homeland Security to develop "a comprehensive outcome-based strategy to achieve operational control of the border." That was defined as stopping 9 out of ten unauthorized migrants. Now 90 percent has been ramped up to 100 percent in McCaul's new bill, which means that the government is mandating perfect border security, using your tax dollars, without a plan.

The ACLU and other organizations representing border communities have told the committee that what's needed at CBP is oversight and accountability, not an open faucet of wasteful spending like the bill's embrace of CBP drones two weeks after a damning DHS Inspector General report titled "CBP Drones are Dubious Achievers." The McCaul bill should be firmly rejected by Congress or vetoed by the president.

Congress must instead take a hard look at the true state of CBP. Reform means body-worn cameras, a functioning complaint process, and a reduction of the 100-mile zone in which CBP operates as a "Constitution-Free agency." It's deeply troubling to border residents who already live in militarized conditions – with drones and other constant surveillance, checkpoints, and roving patrols dominating and harassing their lives – that Chairman McCaul has cast aside last year's philosophy.

He now wants to open wide taxpayers' wallets without having a strategy in place, either for border security or for bringing best police practices to CBP - the country's largest, and most troubled, law enforcement agency.

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50 Years After MLK’s Selma March, We’re Still Fighting For Voting Rights

January 20th, 2015 No Comments   Posted in ACLU Nationwide
By Molly Rugg, Paralegal, ACLU

This year marks the 50th anniversary of Martin Luther King Jr.'s historic 1965 march from Selma to Montgomery, Alabama, to demonstrate how vitally important it was that black Americans be able to exercise their fundamental right to vote. In Selma, people died, suffered bodily injury, and went to jail for that right. President Lyndon B. Johnson signed the Voting Rights Act into law a few months after the Selma march – but we're still fighting voter suppression on many fronts half a century later.

The specific means of suppression have changed, but the objectives haven't: People in power are still trying to keep specific groups of Americans from voting. Here are a few things to keep an eye on as we keep fighting into 2015.

Winter: The U.S. Supreme Court considers whether to hear appeals from Wisconsin and North Carolina voter suppression cases.

  • After our trial judge struck down Wisconsin's voter ID law, an appeals court overturned that ruling and would have allowed the law to be implemented for the November 2014 elections. The Supreme Court then forbade Wisconsin to require ID for those elections, as the case proceeds through the courts. We have now asked the Supreme Court for a full hearing to decide whether the trial court's decision will stand permanently.
  • In October, an appeals court restored same-day registration and allowed people to have ballots counted outside their precinct in North Carolina for the 2014 elections, while the case works its way through the courts. The Supreme Court then put that ruling on hold, allowing North Carolina to conduct the 2014 elections without these options, and the state has now asked the Supreme Court to fully review the decision of the appeals court.

Spring: Circuit court hears appeal on attorneys' fees in the Shelby County case.

  • Back in 2013, Shelby County, Alabama, persuaded the Supreme Court to dismantle a core part of the Voting Rights Act – the part that the court itself had called the "heart of the Act" in a 1966 opinion. The county then asked for $2 million in compensation, which the district court denied. They've now appealed to the D.C. Circuit, which will likely hear the case sometime around the anniversary of the Selma march. Ironic, no?

Summer: Final judgments expected in North Carolina and Ohio district courts.

  • While the Supreme Court considers whether to hear the North Carolina appeal, we also have a full trial scheduled for July in the district court. Whereas last summer's proceedings dealt with whether to stop the voter suppression law from going into effect just for imminent elections, this summer's trial will deal with whether to permanently strike down the law. This includes the new voter ID provision, which is set to take effect in 2016. (Here's a refresher on all the gory details of North Carolina's law.)
  • We're also expecting a final decision on our early voting case in Ohio, potentially by summer's end. Both sides will be presenting the judge with briefs and expert witness reports throughout the next several months, and we could have a ruling in August or September.

Dr. King said, "Voting is the foundation stone for political action." We all must work together to make sure that it is not placed in jeopardy.

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Guantánamo Diary: An Epic for Our Times

January 20th, 2015 No Comments   Posted in ACLU Nationwide
By Noa Yachot, Communications Strategist, ACLU

Literary history was made today with the publication of the first-ever book by a still-imprisoned Guantánamo detainee. Mohamedou Ould Slahi's "Guantánamo Diary" was finally published with some redactions after years of litigation to declassify it.

Slahi– an ACLU client – arrived at the prison in August 2002. His memoir is a terrifying personal story of abduction, detention, and torture in four countries. It is also an American story, and it is ongoing.

Slahi was arrested in his native Mauritania in the fall of 2001, after he turned himself in for questioning. It is clear early on that his arrest was at the behest of the United States, which suspected him of involvement in the "Millennium Plot" to bomb Los Angeles International Airport – a suspicion that turned out not to be true. He was soon sent to Jordan, where he was held and tortured for almost eight months. That was in the early days of the CIA's extraordinary rendition program, in which it outsourced the detention and torture of suspects to other countries.

After Jordan, Slahi was briefly held in U.S. military custody in Afghanistan, and then sent to Guantánamo, where he remains today. It was in Guantánamo where he underwent systematic and brutal torture, authorized by former Secretary of Defense Donald Rumsfeld himself. He endured a forced abduction, sexual assault, mock execution, beatings, and psychological terror meted out by military interrogators over the course of several months.

Attempts to connect Slahi to the Milennium Plot and, later, to 9/11 have all failed, and the U.S. has never charged him with a crime. The lack of evidence against him has been corroborated by a former Guantánamo chief prosecutor, Col. Morris Davis. (See his must-read op-ed.) A federal judge ordered Slahi released in 2010. The government, however, appealed the order, and he remains detained. The ACLU is calling on the government to release him without delay.

Take action: Tell the U.S. government to free Slahi

In the book, we hear directly from Slahi how the absence of evidence of wrongdoing had no effect on his interrogators. The reader follows him as he is nevertheless forced down a sadistic path to false confession, the only way to make the torture stop. The truth became too much to bear:

Whenever I thought about the words 'I don't know,' I got nauseous, because I remembered the words of _________, "All you have to say is, 'I don't know, I don't remember, and we'll fuck you!' … And so I erased these words from my dictionary.

As astonishing as the scope of the abuse is Slahi's enduring warmth, even for his torturers and jailers. His discusses theology and politics with his kinder captors; some teach him English, play chess with him, and bring him books. They all work for the government that has unlawfully detained him for well over a decade. But he views them with extraordinary compassion:

Your family comprises the guards and your interrogators. True, you didn't choose this family, nor did you grow up with it, but it's a family all the same, whether you like it or not, with all the advantages and disadvantages. I personally love my family and wouldn't trade it for the world, but I have developed a family in jail that I also care about. Every time a good member of my present family leaves it feels as if a piece of my heart is being chopped off.

(The Guardian has published additional excerpts, along with an outstanding, partially animated documentary at Guantá

Slahi's ordeal is at the heart of "Guantánamo Diary," but the book is about much more. It is a chilling story of the United States' worst abuses in the post-9/11 era. It is an account of other countries' complicity in these abuses. It is a terrible example of what happens to innocent people when the rule of law is suspended. In the words of Larry Siems, the book's editor, it is "an epic for our times."

President Barack Obama has made some progress, albeit slow, in transferring detainees out of Guantánamo. His administration can do more. In the case of Mohamedou Slahi, we're calling on Secretary of Defense Chuck Hagel not to contest his habeas case.

In April 2010, U.S. District Court Judge James Robinson wrote in his decision that Slahi "must be released from custody." The time is now.

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From the Fair Housing Act to Ferguson: Where You Live Impacts How You’re Policed

January 20th, 2015 No Comments   Posted in ACLU Nationwide
By Larry Schwartztol, ACLU Racial Justice Program

In less than 24 hours, the Supreme Court will hear a case that will define the future of decades-old legal protections against discrimination by landlords and banks against renters and homebuyers. The decision could have far-reaching consequences for the battle against housing policies that discriminate on the basis of race, sex, religion, disability, and other protected characteristics. And that, in turn, would have profound implications for efforts to ensure fair and unbiased policing in places like Ferguson and New York City and throughout the country.

Passed in 1968, the Fair Housing Act is one of the major legislative victories of the civil rights movement. It has helped rid our country of the most overt forms of housing discrimination, such as building single-race housing developments and using lending maps that demarcated black neighborhoods as mortgage-free zones.

But discrimination hasn't gone away – instead, it has subtly morphed, preventing us from creating truly diverse communities.

The most harmful contemporary instances of discrimination can take several forms. Sometimes policies that are neutral on their face interact with entrenched segregation – typically the vestiges of prior intentional discrimination – to reinforce exclusionary policies. For example, zoning regulations that prevent the construction of mixed-income housing in overwhelmingly white areas often have the effect of excluding non-white families. In other instances, policies create conditions where individual landlords or mortgage brokers apply ingrained stereotypes or implicit biases to treat individuals differently based on race, even if that was not the intent of the underlying policies. And, of course, discriminatory policies are sometimes the product of outright racial bias that a perpetrator knows better than to broadcast explicitly so that the intention to discriminate remains disguised.

The FHA's most effective provision for addressing these contemporary forms of discrimination is a legal rule that has held sway for 40 years – the idea that unlawful discrimination is not limited to cases where a plaintiff can prove that a defendant acted with conscious intent to discriminate. Instead, the FHA recognizes the idea of "disparate impact." Under the disparate impact approach, a practice constitutes discrimination if it disproportionately harms a protected class – like racial minorities – and the defendant – typically a landlord or bank or municipality – didn't need to use that practice, or could have done something different that would have avoided the discriminatory effect.

The disparate impact approach has been indispensable in rooting out housing discrimination precisely because it identifies and confronts discrimination that results from hidden, unconscious biases and practices that perpetuate the effects of past, intentional discrimination. But in the case currently before the Supreme Court, Inclusive Community Partners v. Texas Department of Housing and Community Affairs, the state of Texas has asked the justices to rule that disparate impact claims are not available under the FHA. The case involves a challenge to Dallas' system for allocating low-income-housing vouchers in a way that reinforced patterns of residential segregation.

As many advocates and observers have argued in anticipation of this case, the disparate impact standard is crucially important to guaranteeing fair housing opportunities and diverse communities (for examples, see here, here, here, here, and here). One of the reasons that objective is so important is that there is often a profound connection between discrimination in housing and discrimination in other areas of American life. It's well-established that where you live determines in large measure what opportunities you'll have and how you'll be treated.

Policing is a prime example.

Recent activism across the country, propelled by widespread outrage over repeated instances of police killing unarmed black men, has aimed at reforming racially biased policing. Events in Ferguson actually underscore how housing segregation can lead to racialized policing, in all its tragic dimensions. The racial landscape of the St. Louis region didn't occur naturally. Rather it was the product of decades of efforts to impose residential segregation, enforced through a brutal cocktail of federal, state, and local policy as well as private acts of discrimination.

Indeed, a recent report by the Economic Policy Institute provides a nuanced history of those programs of discrimination. In depressing detail, it describes the many layers of governmental and private actions that erected often impenetrable boundaries separating communities based on race. The tragic killing of Michael Brown has helped to expose racialized policing in predominantly black areas, including data showing that police in Ferguson were twice as likely to search blacks as whites after initiating a stop, even though whites were far more likely to be found with contraband.

The connection between racialized space and racialized policing shouldn't be surprising. Intensive residential segregation very often leads to concentrated poverty, a lack of municipal services, and failing schools – all of which contribute to an increase in certain crimes while also breeding stereotypes about disorder and criminality. These dynamics contribute significantly to the biased policing in predominately black or Latino neighborhoods. At the same time, the existence of identifiably black and white spaces leads to unfair targeting of minority individuals who happen to be in predominately white neighborhoods, especially the nonwhite residents of neighborhoods.

None of this is unique to St. Louis. For example, a recent ACLU study on Boston's stop-and-frisk policies found that "a neighborhood's concentration of Black residents drives the rate of police-civilian encounters." In other words, even after statistically controlling for crime-related factors – including neighborhood crime rates – preliminary expert analysis of the Boston Police Department's own data found that the racial composition of a neighborhood predicts how many police encounters will take place there. A statistical analysis submitted to the court as part of the challenge to New York City's stop-and-frisk program found similar patterns.

And that brings us back to the future of the Fair Housing Act. The FHA has for decades provided the most powerful legal tools available for dismantling residential segregation. It has done tremendously important work, but that work is not done. When it comes to addressing housing discrimination in its current forms, the disparate impact standard is an absolutely indispensable tool. It smokes out covert intentional discrimination. More profoundly, it allows courts to carefully scrutinize policies that perpetuate patterns of segregation to determine whether they can be justified.

Removing this pillar of civil rights law would set back equal housing opportunity in dramatic ways. It would also set back the movement to reform bias-based policing at exactly the wrong moment.

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Real People Aren’t Target Practice

January 17th, 2015 No Comments   Posted in ACLU Nationwide
By Joyce Hamilton Henry, ACLU of Florida

This was originally posted by the ACLU of Florida.

The pictures of six black men stared back at me from the screen, the images of their faces shredded by bullet holes. It seemed like some kind of sick threat, but it was the work of a Florida police department.

This morning, I was greeted by the sickening news that the North Miami Beach Police Department (NMBPD) is using mug shots of black people and others for target practice. Mind you, these are not cartoons or computer-generated mug shots—these are photographs of real people, some of whom were arrested by the NMBPD itself.

I was amazed, appalled, and terribly disappointed by this practice. And if I was shocked, imagine the reaction of the Florida National Guard Band member who arrived at the shooting range last month only to find her brother's 15-year-old mug shot, riddled with bullet holes, following target practice by NMBPD officers.

In the aftermath of Ferguson, many of the lessons we've learned about what works and what doesn't in law enforcement have been reinforced. Among them is the importance of law enforcement working closely with communities to build trust. We learned that communities of color far too often view law enforcement officers as enforcers, not protectors, as a result of policies and practices that unfairly treat them like criminals.

We also know that valuing the lives of black people—and all people, for that matter—is critical to establishing healthy, collaborative relationships between law enforcement and the communities they serve. But if the NMBPD truly believes that "black lives matter," they have a funny way of showing it.

This incident raises deep concern about whether the NMBPD understands the full implications of this practice and the message this sends to communities of color—especially since North Miami Beach Police Chief J. Scott Dennis has shrugged off the incident, saying that policies were not violated and that there is no discipline forthcoming for the officers involved.

Good policing isn't just about policies written on paper, it's about the relationship between law enforcement agencies and the communities they are entrusted with protecting. Mutual trust and respect between police and the communities they serve is critical for effective police work.

In a world where the images that bombard us reinforce unconscious racial biases, using the mug shots of black men for target practice reinforces the power of hidden bias to influence police conduct and perpetuate racialized policing. Whether policies were broken or not, having officers train by shooting at images of real life people from the community tells the community that the police see them as targets, engendering fear and resentment, not trust.

As ACLU's Washington Legislative Director Laura Murphy put it in her testimony this week to the President's Task Force on 21st Century Policing, a police culture that doesn't respect the community, "results in a relationship based on mistrust between law enforcement and our low income communities and communities of color. Such a culture results in police killing unarmed black men with little accountability."

The North Miami Beach Police has a duty is to serve and protect all communities equally, but anything that breaks down the trust that is critical for effective police work jeopardizes public safety. Using the mug shots of black people for police target practice raises serious concerns about their commitment to that goal.

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We Fight to Honor My Husband’s Dying Wish

January 16th, 2015 No Comments   Posted in ACLU Nationwide
Blog of Rights: Official Blog of the American Civil Liberties Union

When I met my husband, I knew I wanted to be with him for the rest of my life, until death parted us. Most people feel that way when they meet the love of their life. But most people don't think that the time to part would come so soon. Or at least, when it does come, they don't think that they will have to fight for the basic dignity of having their marriage recognized.

Sadly, that is what John and I went through.

I met John in 1992, and for 21 wonderful years we built a life for ourselves in Cincinnati, Ohio. Weworked as IT consultants, participated in community organizations and doted on our nieces and nephews. For much of our relationship, because we were a gay couple, we thought that marriage would be closed to us. Even though we were like every other loving and committed couple that we knew, we were denied the protections and dignity that come with marriage.

In 2011, we received the devastating diagnosis that John had ALS or Lou Gehrig's disease. There is no cure. We knew that we had limited time. I had the honor of caring for John as ALS stole every ability from him. Rarely a day went by that he didn't apologize to me for getting sick, even though he carried no blame.

Two years after his diagnosis, we watched with great interest as Edie Windsor fought the woefully named "Defense of Marriage Act" in the courts. Edie's story resonated with us because Edie was fighting for recognition of her marriage to Thea Spyer following Thea's death. Like Edie and Thea, John and I knew that our fight would continue after John died.

Weeks after Edie's victory at the Supreme Court, we decided to get married. Ohio, where we built our home and our lives together, still does not permit same-sex couples to marry. Though we would have loved to be wed in our home state, our friends and family helped us charter a medically equipped plane to fly to Maryland. There, on the tarmac while still on board the plane, John and I were finally legally married.

We returned to Ohio to live out John's last days as a married couple. But Ohio refused to recognize us as married for any purpose.. We fervently hoped that John would live to see the day that our marriage would be acknowledged by our home state. The thought that John would be listed as "single" and the "surviving spouse" entry would be blank on his death certificate broke both of our hearts. We went to court seeking recognition of our marriage on John's death certificate. The judge granted our request to have his death certificate properly issued when the time came.

John tragically did not live to see marriage recognized for all gay and lesbian couples in Ohio. He passed away last October. He was only 47. And still, the state continues to seek to deny him his dying wish. Though I have John's death certificate that lists him as "married" and identifies me as his surviving spouse, the state has appealed the court's ruling and plans to remove my name from his death certificate should they succeed.

Nobody should ever have to suffer the indignities that John and I have endured. A ruling striking down Ohio's marriage recognition bans in the context of death certificates would mean no couple would have to live through the uncertainty that we did in the most painful moments of our lives. Every family deserves the peace of mind of knowing that they will be able to take care of each other in good times and bad, until death parts them. Every day that couples like John and I go on without that right is too long.

I continue to fight for John's last wish to have our marriage respected. And I fight for all caring and devoted Ohio couples, too.

James Obergefell is a plaintiff in Obergefell, et al. v. Hodges, one of four marriage equality cases that will be heard by the U.S. Supreme Court this term. The ACLU is proud to be co-counsel in this case.

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Standing Up for Our Dream Family

January 16th, 2015 No Comments   Posted in ACLU Nationwide
By Randy Johnson

We knew almost immediately. It was love at first sight.

I met Paul in the summer of 1991 in Louisville, Kentucky. Paul lived in Western New York and was visiting his brother who lived in Louisville. It was his last day of a one-week stay.

After Paul returned to New York, we talked on the phone every day and took weekend trips from New York to Louisville and from Louisville to New York for months. Paul was a third grade teacher at an elementary school in Western New York, and I had recently become a nurse in the intensive care unit at a local hospital in Louisville.

In those early days, many of our conversations centered around how significant family is in our lives. We are both from very large families and know how vital it is to have family connections. Our biggest dream was to become parents and have children of our own.

After six months of dating long distance, Paul gave up his job in New York and moved to Louisville. On Christmas 1992, we exchanged rings to symbolize our commitment to each other. We also decided to pursue our dream of becoming parents and start a family.

After doing a ton of research on adoption, visiting multiple agencies and encountering more than one setback, we finally met our boys.

We were connected to a birthmother who had delivered twins, and she wanted to place them in a home together. She only wanted to be assured the children would remain together in a loving home. We were thrilled! All of our dreams came true when our boys came home, and we continued to build the family we had always wanted.

Of course the legal process of becoming parents to the twins proved to be quite tumultuous. Because Kentucky limits a joint adoption by two adults to people who are married, we had to pursue a "single-parent" adoption. As a result, Paul is the only legal parent to our twin boys. It was and continues to be painful that we aren't both legally acknowledged as fathers and both legally responsible as parents.

After only a few years, we decided it was time to add a princess to our family. We went through the same process, and a birthmother, who was scheduled to deliver a biracial baby girl in only six weeks, selected us to adopt her daughter. Four years later, we decided to be foster parents to a 7-year-old who Paul met through his work as a school counselor. But again, Kentucky's marriage laws meant that only one of us could become the "official" foster parent.

So our family had grown to four children, which was more of a blessing than we could have ever dreamed of.

We have never stopped fighting to receive legal protections for our children and each other. Because we have not both been able to secure legal relationships with our children through marriage or adoption, we sought out legal advice and have tried to draw up agreements such as medical powers of attorney to protect our kids. We have done everything we can but we know that our family is still at risk. For example, if one parent became disabled, insurance benefits would only apply to the child or children legally adopted by that parent.

Nothing offers the protection that marriage affords.

In July 2008, our family enjoyed a vacation in Palm Springs, California, visiting with Paul's brother, who who was also in a same-sex relationship. At that time, the state of California began performing marriages for same-sex couples. Therefore we, along with Paul's brother and his signficiant other, applied for marriage licenses. Even though we knew our marriage "wouldn't count" in Kentucky, we were married in the mayor's office in Palm Springs in a double wedding, each couple witnessing each others' commitment to their life-long partner. Our children were able to participate in this event that we will vividly remember for the rest of our lives.

As with all families, unexpected situations challenge our strength and courage. In 2012, Paul was diagnosed with prostate cancer at the age of only 46, which was devastating. Not only was he diagnosed with a life-threatenting disease, but we were faced with additional challenges on how to interact with a healthcare system that had the legal right to discriminate against us and to exclude me from decisions about Paul's healthcare.

Today our kids are thriving and we want to protect them as best we can so that they continue to succeed and experience all that is possible in this world. That's why we joined a federal lawsuit seeking respect for marriages between same-sex couples legally performed in other states herein Kentucky.

We've fought hard to create our beautiful family, and we'll continue to show our kids the power of standing up for what's right.

Randy Johnson and his husband Paul live in Louisville, Kentucky, with their four kids. They are plaintiffs in Bourke v. Beshear, one of four freedom to marry cases from the 6th Circuit, which will be considered by the U.S. Supreme Court this term.

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DEA Discloses Bulk Surveillance of Americans’ International Phone Calls

January 16th, 2015 No Comments   Posted in ACLU Nationwide
By Patrick C. Toomey, Staff Attorney, ACLU National Security Project

The Drug Enforcement Administration acknowledged yesterday yet another government program involving the bulk collection of Americans' call records. In a three-page court filing in a criminal case long shrouded in secrecy, the DEA said that – up until September 2013 – it collected en masse information about U.S. calls made to and from certain countries.

The only country named in the filing is Iran, but the DEA stated that the program encompassed a number of foreign countries "that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities." The total number of countries covered by the program remains secret. Yet the filing raises the prospect that the DEA has been collecting a record of every call to Mexico, the Bahamas, Iran, Afghanistan, and dozens of other countries on the theory that all those calls are "relevant" to the DEA's international drug-trafficking investigations. (Consider the fact that the DEA currently maintains foreign offices in 67 countries.)

The disclosure underscores how the government has extended its use of bulk collection far beyond the NSA and the national security context, into ordinary law enforcement. And it shows how a strained and untenable theory of "relevance" has been used to justify the surveillance of millions of innocent Americans using laws that were never written for that purpose.

The DEA database represents the fourth government program involving bulk collection of call records disclosed to date. The other bulk-collection programs are:

  • Under Section 215 of the Patriot Act, the NSA collects call records in bulk from a number of major U.S. telecommunications providers. These phone records can be queried in terrorism investigations with the approval of the secretive Foreign Intelligence Surveillance Court, and in any investigation where the government has obtained a FISA order for electronic surveillance. The results of those queries – which may together comprise millions of call records – are pooled in a shadow database that may be searched and analyzed without any FISA court supervision, and for a far wider range of purposes. The ACLU is challenging the NSA's bulk collection of Americans' call records in a number of cases around the country.
  • Under Executive Order 12,333, the NSA collects as many as 5 billion phone records each day, according to a report in The Washington Post. Those phone records are collected outside the United States, but may be queried for telephone contacts within the United States under certain procedures. A number of other federal agencies may be able to search the database containing these aggregated phone records using ICREACH, an NSA-built interface designed to facilitate searches of information gathered under Executive Order 12,333.
  • Using the Hemisphere Program, law enforcement agents have access to a database of call records reaching back as far as 1987, as reported by The New York Times. AT&T provides access to the phone records, but the database is not limited to AT&T customers. Instead, AT&T collects information on all calls crossing its network, whether or not they originate with an AT&T subscriber. This program is the subject of litigation in at least one criminal case, in which the ACLU and EFF filed an amicus brief.

The proliferation of these bulk-collection programs exposes the breadth and danger of the government's legal theories. In defending the NSA's bulk collection of phone records under Section 215, the government has repeatedly attempted to explain away the fact that its legal theories would allow bulk collection in contexts far removed from national security and terrorism, making Americans' financial records, prescription records, and other information vulnerable to government surveillance in ordinary criminal investigations.

The new DEA program belies the government's claims. It shows that the NSA's use of Section 215 is only the tip of the iceberg when it comes to the bulk collection of information about innocent Americans.

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The End Game Is Here for Marriage Equality

January 16th, 2015 No Comments   Posted in ACLU Nationwide
By James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & AIDS Project

This is it – the end game in the longstanding campaign to win the freedom to marry for same-sex couples nationwide is upon us. The U.S. Supreme Court has just announced it will hear freedom-to-marry cases in all four states in the Sixth Circuit- Ohio, Kentucky, Tennessee and Michigan. We're thrilled to be co-counsel in the Kentucky and Ohio cases.

With today's SCOTUS announcement we are entering what we hope will be the last phase of a journey towards greater dignity and equality for lesbian, gay, and bisexual people that started decades ago and has accelerated at a truly astounding rate over the last year and a half. A win before the high court would be a watershed moment for the LGBT rights movement.

It's clear from a few simple facts that the country is ready for the freedom to marry nationwide:

  • 36 states now allow same-sex couples to marry
  • 71 percent of the U.S. population lives in a freedom-to-marry state
  • 59 percent of Americans support marriage equality

Adding the remaining 29 percent of the population to the marriage column, while momentous for LGBT equality, would not impose sweeping new change on the country. If South Carolina, Utah, Florida, and Oklahoma are all marriage states, then surely Texas and South Dakota can handle it, too.

It's also evident why marriage is so important. Marriage makes clear that both the state and society value and protect a relationship. Same-sex couples have been making the commitment at the heart of marriage for decades, but they have been treated as legal strangers by state after state and told that their relationships are less worthy.

Plus, showing the country all the same-sex couples who want to marry –and who do marry – has helped people understand that gay people's relationships are built around love, often are long-term, and increasingly involve raising children who thrive. All of those realities, which gay people find unremarkable, help the rest of America overcome the anti-gay stereotypes that they grew up with.

Finally, it's clear how we've gotten to this moment of such promise – through decades of concerted effort by LGBT people and allies all across America. The ACLU is proud to have been part of getting us here. We brought the first lawsuit in the country seeking the freedom to marry for same-sex couples in 1970. Over the years since then, we have worked in courts, legislatures, and in ballot campaigns to win marriage equality all across the country. We represented Edie Windsor in her landmark case taking down the core of the Defense of Marriage Act in 2013 and have filed 17 marriage cases since then, covering every region of the country.

What's not clear – yet – is just how the end game, well, ends. We'll know that come summer, but we do already know several things: That if we win, the country can handle it. That if we lose, we will still change the remaining anti-gay laws by going back to the ballot. And that we can never stop working to change the culture in America so that it understands and embraces LGBT people in all of our wonderful diversity.

Marriage will help us do that, so we welcome the end game – bring it!

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Christie Use of Tollbooth Data and Why Location Privacy Must Be Protected

January 16th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

David Sirota of the International Business Times reported last week that Gov. Chris Christie of New Jersey and his appointee, the deputy governor of the Port Authority of New York and New Jersey, had released a political opponent's private tollbooth data in order to embarrass him.

Under criticism from the late Sen. Frank Lautenberg at a hearing on toll increases, the Port Authority official, Bill Baroni, fought back, as Sirota describes:

"Respectfully, Senator, you only started paying tolls recently," Baroni said, according to a transcript of the exchange. "In fact, I have a copy of your free E-ZPass," he continued, holding up a physical copy of the toll pass Lautenberg had received as a benefit from his tenure as a Port Authority commissioner. "You took 284 trips for free in the last 2 years you had a pass."

The next day, in a press conference, Christie used the data to attack Lautenberg more specifically about the details of his travel:

I find it interesting, too, by the way, in 2005 and 2006, that he went over the Hudson River 284 times. Where was he going?... I think he needs to answer that. 'Cause he's supposed to be the senator from New Jersey. So what's he doing going over the bridge or through the tunnel to New York three or four times a week for 2005 and 2006?... Did he ever spend any time in New Jersey?

MSNBC also has a story on this with video of Christie and Baroni's attacks.

As I told Sirota, this incident ties together a lot of the reasons we worry about privacy: that location data is very personal (as we tried to convey last year in this video). That information is power and always raises the temptation for abuse through Nixonian dirty tricks, embarrassment of rivals, or leverage over critics. And that every incident of abuse that actually happens casts a long shadow of chilling effects over those who just worry about how data might be used. If officials feel comfortable using information against a senator, what is a lower ranking political official, let alone ordinary citizen, supposed to conclude about how data could be used against them?

EZ Pass and other electronic toll booth systems should have the option for anonymous use, where money on the devices is treated like cash, for users who prefer privacy to the convenience of having named accounts. A driver, in other words, should be able to buy a transponder for cash, and use cash to store and re-load value on it. The Washington DC Metro system, for example, offers this option for users of its contactless transit passes.

Where identifiable location data is collected, it needs to be subject to very strict protections and controls, including immutable audits that record who is accessing what data, and for what legitimate purpose. Those controls need to cover everyone, right to the top.

New Jersey law does say that "any information obtained from a toll collection monitoring system" shall be available only to Port Authority and police officials "for the purposes of discharging their duties," and "shall not be discoverable as a public record by any person, entity or governmental agency, except upon a subpoena issued by a grand jury or a court order in a criminal matter."

On Monday, New Jersey Congressman Frank Pallone called upon the Justice Department to investigate Christie and Baroni's use of the tollbooth data. Given that Gov. Christie may run for the White House, presidential politics will no doubt enter the equation here, but it should be a scandal when any political leader uses personal data as a weapon in this way.

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