By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office
So this “lame duck” Congress may not be so lame after all – at least when it comes to increasing government transparency.
On Thursday, the Senate Judiciary Committee is set to consider a bipartisan measure that, while modest, would be one of the most significant improvements to the Freedom of Information Act in decades. Sponsored by Vermont Democrat Patrick Leahy and Texas Republican John Cornyn, we’re hopeful the committee will send the bill to the full Senate where it has a legitimate chance at passage, even in the politically fraught aftermath of this month's election.
The legislation would take several small but important steps to improve FOIA.
First and foremost, it would enshrine in law President Obama's pledge, made on his first day in office, to change the default response when the government receives a FOIA request to disclosure. While we've been critical of the Obama administration's approach to transparency on things like NSA surveillance, we strongly applauded this "presumption of openness," which stood in marked contrast to the approach of the Bush administration.
The bill would also encourage the release of documents in electronic format and would, for instance, require agencies to release documents electronically if they've been publicly released and requested more than three times. Furthermore, it would require additional reporting by agencies on requests denied and documents released.
Finally, it would clarify in the law that agencies cannot deny requests simply because the information requested would be embarrassing or merely technically fits one of the exemptions to FOIA (that is, the information could be covered by an exemption but release wouldn't result in harm). Additionally and importantly, it would limit FOIA's Exemption Five, which covers a broad range of documents covered by things like the attorney-client privilege and is often overused by agencies. Under the bill, only documents produced in the past 25 years would be eligible for withholding.
The ACLU has long argued that the First Amendment rights of Americans require public access to government information, especially in areas like national security, where the government has an abiding incentive to withhold information about fraud, waste, embarrassment, or illegality. FOIA is the most important mechanism in service of that First Amendment value.
We applaud Senators Leahy and Cornyn for their important legislation to make it a better law.
By Bennett Stein, ACLU Speech, Privacy, and Technology Project
The ACLU is filing a Freedom of Information Act (FOIA) request today for information about a newly revealed Marshals Service program that uses aircraft to suck up location data from tens of thousands of people’s cell phones at a time.
The U.S. Marshals Service program, exposed last week by the Wall Street Journal, involves Cessna planes equipped with “cell site simulators” flying from at least five airports around the country. Cell site simulators, also called IMSI catchers, impersonate a wireless service provider’s cell tower, prompting cell phones and other wireless devices to communicate with them instead of the nearest tower. In doing do so, the simulators can learn all sorts of information that facilitates accurate location tracking, including the electronic serial numbers and other information about the phone and the direction and strength of the phone’s signal.
The government apparently calls cell site simulators deployed on airplanes “DRT boxes” or “dirtboxes”, after their manufacturer, Digital Receiver Technology, Inc. (DRT). (Other cell site simulator models, produced by Harris Corporation, are the “Stingray," “Triggerfish,” “Kingfish,” and “Hailstorm”).
According to the Wall Street Journal, the dirtboxes are used in criminal investigations. The problem is that, during each flight, a dirtbox is able to collect data from tens of thousands of cell phones. And, inexplicably, that is pretty much all we know about this program. That is why we are filing a FOIA request on this technology.
The Marshals Service program has drawn widespread expressions of concern, for example prompting two U.S. Senators to demand information from the Attorney General about the extent of airborne cellphone interception and its effects on innocent bystanders. But the Marshals Service is not the only agency in the federal government deploying this technology on aircraft. For example, U.S. Immigration and Customs Enforcement puchased an "Airborne Flight Kit” for a Stingray II cell site simulator as early as 2010. And we know at least a dozen federal agencies use cell site simulators, as well as dozens of state and local police departments across the country (many of them are mapped here).
Despite the public interest and significant constitutional questions raised by IMSI catchers, law enforcement agencies continue to pretend the technology is a secret. The Department of Justice would neither confirm nor deny that the U.S. Marshal Service dirtbox program exists. The FBI is trying to keep local and state law enforcement agencies from disclosing their use of Stingrays by forcing the agencies to sign nondisclosure agreements.
This is unacceptable — law enforcement must not purchase and deploy such powerful new technologies without the public’s knowledge and input. Americans can only debate the merits and legality of new surveillance programs if we know they exist. Resistance against the government’s secret, overzealous use of cell site simulators is spreading, and will surely grow as we learn more about these programs. The press has responded with major front page stories. Judges are pushing back in the courtroom. State and federal legislators are asking questions and considering regulation. It is time for the government to stop trying to suppress this debate, and recognize the public’s right to information.
It would be an understatement to say Ohio has had many problems administering capital punishment.
Over the last decade, the state granted clemency to 10 people and botched four executions, including the tortuous death of Dennis McGuire, who was killed with experimental drugs. With mismanaged executions and growing controversy around lethal injections in Arizona, Oklahoma, and elsewhere, a federal judge in Ohio rightfully paused executions until the state could adopt new protocols.
Given all of these difficulties, you’d think leading state legislators would move forcefully to reform or abolish the death penalty in the state. Not so. Their solution is extreme: Close the curtain and keep the public out.
With almost no public discussion, proposed legislation that shrouds the capital punishment process in secrecy is being pushed through the legislature. The bill does two very alarming things. It would shield manufacturers and medical professionals who assist in executions from being the subject of public records inquiries, and it provides immunity to those individuals from ethical or professional reprimands.
This level of secrecy will be detrimental to Ohio’s very democracy.
The government represents the people and should be accountable to us. We have laws that require government officials to provide public records and have open meetings in order to prevent corruption, abuse, and incompetence. Taking a person’s life is the ultimate punishment that the public can levy, which means we have to take even greater pains to ensure the government does it humanely and legally.
Instead, Ohio’s leaders want to introduce more secrecy and less accountability into an already cruel and flawed system.
Allowing anonymity for drug manufacturers is particularly problematic, especially if compounding pharmacies are involved. These types of pharmacies make small batches of drugs, with each one being unique. Ohio would like to use compounding pharmacies, which are totally unregulated by the Food and Drug Administration for safety and efficacy, to supply the lethal dose during its executions. If this bill goes through, pharmacies will be off the hook and left unaccountable if their concoctions result in botched executions.
Unfortunately, secrecy is the typical reaction of the government in any number of circumstances—when problems crop up, the government opts to hide the truth from the people.
Ohio has had its share of problems with lethal injections. Secrecy will only guarantee that those problems will continue, and possibly spread. Ohio is consistently a bellwether state for contentious legislation, such as abortion and voting laws, which can set trends nationwide.
Whether you are a supporter or opponent of the death penalty, we all must agree that the government should play by the rules and must be accountable to the people. We don’t need more botched or wrongful executions and a hastily passed secrecy bill is a recipe for disaster.
It’s either kill this bill or let Ohio kill in secret, with other states to follow.
Please take a moment to ask the committee chairman to hold this legislation and not move it forward this year.
By Julie Ebenstein, Staff Attorney, Voting Rights Project, ACLU
Mass incarceration not only destroys families and mangles communities, it slowly erodes our democracy. Too many Americans convicted of nonviolent offenses, such as drug crimes, are punished with excessive prison sentences and then permanently ejected from our democracy through the “civil death” of losing their right to vote.
Criminal disenfranchisement removes massive swaths of society from the democratic process as a collateral consequence of conviction. A striking 5.85 million Americans can’t vote because of a criminal conviction. If all of these citizens populated their own state, it would be the 20th largest state in the country and would have ten votes in the Electoral College.
The distortion of democracy operates through a patchwork of state disenfranchisement laws, varying in severity from state to state. Many disenfranchised citizens live in Iowa, Kentucky, or Florida – the three states with extreme policies of disenfranchising anyone with a felony conviction for life.
These states are among those that also disproportionately suppress the voting rights of African Americans. In both Florida and Kentucky, approximately one in five African-American citizens is disenfranchised due to a prior conviction. In Iowa, the long-standing system of disenfranchisement, paired with the worst disproportionate incarceration of African-Americans in the nation, resulted in the disenfranchisement of an estimated 1 in 4 voting age African-American men by 2005.
The ACLU and the ACLU of Iowa filed a lawsuit challenging Iowa’s extreme policy of disenfranchising for life everyone with a felony conviction. The Iowa Constitution specifically provides that citizens can be disenfranchised only for an “infamous crime.” The meaning of the word “infamous” in the mid-19th century meant “most vile; base; detestable.” It captured a concept dating back to ancient Greece where “criminals who had committed certain heinous crimes were pronounced infamous.”
Last year, in an Iowa Supreme Court case, a plurality—three of six— of the justices held that not all felonies are necessarily infamous crimes, but only those kinds of offenses that are serious and have some bearing on the integrity of elections.
In 2008, our client Kelli Jo Griffin pled guilty to a low-level drug crime, was sentenced to probation, and has since served her term of probation. Nonviolent crimes rooted in addiction are not “most vile,” “base,” or “detestable.” They have no bearing on a person’s integrity, much less the integrity of elections. Once Kelli Jo and those like her have completed their sentences, we integrate them back into our society as neighbors, co-workers, and family members. There is no rational or constitutional basis for fencing them out from civic participation for the rest of their lives.
Once a citizen is disenfranchised, Iowa’s discretionary executive clemency policy is the only available route to restoration. But the clemency process is susceptible to the ebb and flow of politics, with some state governors restoring voting rights automatically, and others creating convoluted processes that prevent nearly all restoration.
In 2005, Gov. Tom Vilsack restored the right to vote to citizens who had already completed their sentence, resulting in an estimated 100,000 Iowans regaining their right to vote. He also set forth a process whereby citizens would have their rights restored automatically upon completion of their sentence. Automatic restoration remained in place at the time Kelli pled guilty to a non-violent drug crime.
But in 2011, before she finished her term of probation, Gov. Terry Branstad changed the system so that her rights were not automatically restored; a change Kelli was unaware of once she completed her probation.
Iowa’s extreme policy of punishing Kelli Jo with “civil death” after she completed her probation and turned her life around is dead wrong. It violates the Iowa Constitution and disfigures our democracy.
By Michael Macleod-Ball, Chief of Staff, ACLU Washington Legislative Office
Members of Congress and donors in cahoots to deceive not only the American voting public but the Federal Elections Commission (FEC) as well?
Shocking, I know.
According to a CNN report, a number of congressional campaigns may have used anonymous Twitter accounts to coordinate with outside big money advocacy groups to evade campaign contribution limits. If so, it highlights once again the need for the FEC to tighten up coordination rules, which we have argued do not accurately reflect the clear meaning of the statute on which they are based.
Polling results in specific congressional races, reports CNN, were posted to anonymous Twitter accounts. The posts appeared as gibberish to the untrained eye – for example, “FL-44/42-44/44-35/35-42/41-49/47-10/22/14-26” – but to a campaign specialist, they would have appeared as a guidepost providing direction to those looking to help or oppose particular candidates. Suspiciously, someone removed the Twitter accounts within minutes of CNN asking the National Republican Congressional Committee to comment.
Here are a couple of basic rules of election law:
- Campaign donors can only give a certain amount to candidates running for office - $2600 for individuals and $5000 for multi-candidate political action committees (PAC).
- Independent speakers and PACs can spend an unlimited amount in support of candidates – but only if they do not “coordinate” with candidates or campaigns.
- If an independent group coordinates with a campaign, then any money spent in support of that campaign – say, a series of TV ads – counts as a contribution to that campaign.
By law, the FEC will treat the cost of any TV ad campaign resulting from coordination with a campaign as a contribution. Moreover, any impactful TV ad campaign will undoubtedly cost more than $5000 – check any TV rate schedule. Therefore, any coordinated ad campaign will almost certainly violate the contribution limits that have long been the foundation of the nation’s political finance system.
Federal election law is pretty complicated – but on this last point, it’s pretty simple. The law says that if any “disbursement is coordinated with a candidate or [campaign] such disbursement . . . shall be treated as a contribution to the candidate. . . .” The problem rests with the FEC, which has taken the simple term “coordinated” and turned it into a little definitional puzzle, the meaning of which bears no resemblance to the meaning any thinking person would assign to that term.
The FEC says that three tests must be met to establish "coordination:" a payment test, a content test, and a conduct test. Two of those tests have multiple parts, and if any one of the tests isn’t met, FEC deems there to be no coordination. So smart campaign consultants simply organize their activities so that they avoid meeting one of the tests. One of the FEC workarounds gives a free pass to information communicated between a campaign and an “independent” group if it’s publicly available. The thinking is that coordination would normally require the passing of some confidential information or strategy which, if publicly known, would lose its political value.
So here we have online tweets with political polling information – how much more public can you get – and yet how much more confidential could the information be? It appears that all parties did everything in their power to keep the polling information in a quasi-encrypted format, so as to avoid sharing the political value of the data with their opponents. Moreover, it looks like the parties were not comfortable conveying the information directly, which would have pretty clearly put them into the land of “coordination.”
Let’s see how this all plays out before casting too many stones, and to its credit, the FEC says it’s going to take a look at the issue. But the bottom line is that this looks, talks, and acts like a coordinated duck. Any legal argument to the contrary just means that the FEC’s definition of coordination has made a shambles of the simple term used in the statute. Sending seemingly encoded confidential polling information between campaign and independent speaker via an anonymous Twitter account is the kind of coordination that ought to make subsequent campaign communications count as contributions.
And I’m shocked – just as shocked as Capt. Renault – that the FEC’s convoluted rule might allow this to stand.
By Ian S. Thompson, ACLU Washington Legislative Office
If you believe that two men in a committed, monogamous relationship – where neither partner is living with HIV – face the same risks as an individual who has heterosexual sex with a commercial sex worker or someone who they know is living with HIV then the recommendation on Thursday from an advisory committee of the U.S. Department of Health and Human Services (HHS) will make sense. Otherwise, you might find yourself scratching your head.
First, some context. The FDA has barred blood donations from men who have had sex with another man – even one time – since 1977. The policy originated in the early days of the HIV/AIDS epidemic. In the decades since, our understanding of HIV – how it is spread, how to test for it and treatment of those living with the disease – has significantly advanced. The lifetime ban on blood donations from gay and bisexual men is clearly not reflective of what we now know from a scientific and medical standpoint.
Criteria for determining eligibility as a blood donor must be based on science, not outdated, discriminatory stereotypes and assumptions. While there is no constitutional right to donate blood, government policy regulating the blood donation field must not discriminate on the basis of sexual orientation by adopting differing standards for conduct that poses similar (or greater) risks based solely on the identity of those engaging in such conduct. In other words, gay and bisexual men cannot constitutionally be singled out for differential treatment solely because of their sexual relationships.
On Thursday, the HHS Advisory Committee on Blood and Tissue Safety and Availability recommended ending the current lifetime ban and replacing it with a one-year deferral period. While this is a promising step forward, the policy would remain deeply flawed in that it relies on sexual orientation rather than risk assessments in determining blood donor eligibility. Under the proposed policy, two men – neither of whom is living with HIV – who maintain a committed, monogamous relationship would never be eligible to donate blood. In contrast, an individual who has heterosexual sex with a commercial sex worker or someone who they know is living with HIV would face a one-year deferral. Suggesting that a sexual relationship between two men, in and of itself, poses a risk of HIV transmission is deeply stigmatizing.
Thankfully, the advisory committee’s recommendation is but one step in an ongoing process. As it moves forward, hopefully we will see a shift away from focusing on the sexual orientation of prospective donors to a policy based on individual risk assessments.
A recent study found that lifting the exclusion that keeps gay and bisexual men from donating blood would result in an estimated 360,000 men who would likely donate an additional 615,300 pints of blood each year helping to save the lives of 1.8 million people. It is clear that we can safely permit gay and bisexual men to donate lifesaving blood provided the will exists to finally break with the past.
By Sarah Mehta, Researcher, Human Rights Program, ACLU
On Wednesday, the United Nations Committee Against Torture began its review of the United States’ record on torture—not only at the infamous Guantánamo Bay but closer to home, in our prisons, police forces, and immigration facilities.
The U.S. delegation acknowledged, “we crossed the line” on torture. Many of us believe that line matters, and that American values and law should define us as a country that stands against torture and cruelty. But as committee member Domah said, even “democratic institutions join forces to frustrate democratic principles.”
Yesterday the United States gave its response to the dozens of questions posed about the treatment of those in U.S. custody and all individuals it fails to protect. And the response was incomplete, defensive, and disheartening.
Let’s take three of the many issues the ACLU raised for this review. First, accountability for torture committed under the Bush administration. Committee members found U.S. responses on accountability and remedies for the “some folks” we tortured was wholly inadequate.
It’s easy to see why. While the U.S. delegation reiterated its commitment to holding those who torture accountable, it couldn’t even provide assurances that a Department of Justice inquiry led by Assistant U.S. Attorney John Durham looked into the role of senior officials or interviewed any torture victims. Durham recommended full investigations be opened in two detainee death cases—Gul Rahman at the Salt Pit Prison in 2002, and Manadel al-Jamadi in Iraq in 2003—but the Justice Department closed both without charging anyone.
Second, prisons: Several committee members raised the United States’ overreliance on solitary confinement—a practice on which the U.S. is an international outlier in a very bad way. Committee member Alessio Bruni told the U.S. delegation, with the practice of holding people for 30 days or longer in isolation, “you are leading [prisoners] to insanity.” The response of the U.S. government, however, showed it to be in denial about the scope and nature of this problem. Government officials pointed to some practices that allegedly temper the isolation; but their suggestion that a radio, monthly phone call or a letter is enough is frankly ludicrous.
And finally, on U.S. immigration detention, committee chair George Tugushi asked the U.S. delegation how it could possibly reconcile its explicit use—as a “deterrent” —of family detention for the thousands of Central Americans seeking protection with its human rights obligations under international law. The delegation response was not to deny this policy but to clarify that detention wasn’t the only deterrence strategy to keep refugees away. I don’t think many felt better that the U.S. government has numerous strategies to prevent families fleeing for their lives from receiving protection.
The U.N. Committee Against Torture will issue its concluding observations and recommendations on November 28. The U.S. delegation said that test for any nation committed to the Convention Against Torture and to the rule of law was not whether it had ever made mistakes, but whether and how it corrected them. Let’s hope our government embraces the call to do better.
By Cassandra Stubbs, Director, ACLU Capital Punishment Project
Wearing a cowboy costume and a purple bandana, Scott Panetti defended himself at his capital trial in Texas without counsel, where he tried to call the Pope, J.F.K, and Jesus Christ to the witness stand. In Tennessee, Richard Taylor represented himself in his capital trial wearing sunglasses to keep out the police voices and sat completely silent through his trial. Guy LeGrande served as his own lawyer at his capital trial in North Carolina, wearing a Superman shirt and telling the jury to kiss his “natural black ass” in closing argument.
All three were sentenced to death.
Each of these cases exemplifies a broken system. All three defendants suffer from schizophrenia, one of the most serious and debilitating mental illnesses known to humanity, and are delusional and out of touch with reality. Symptoms of schizophrenia, including paranoia and grandiosity, make it all too common for mentally ill defendants to fire their lawyers and try to represent themselves at trial. None of these three men should have been allowed to defend himself, and none should have faced the death penalty. Capital punishment for individuals with serious mental illness serves no valid purpose.
For my client Richard Taylor, in Tennessee, and Guy LeGrande, in North Carolina, the courts ultimately intervened. On appeal, the Tennessee court threw out Mr. Taylor’s death sentence, and he was resentenced to a life. The North Carolina court found that Mr. LeGrande was too delusional to be executed in a competency hearing that was held after his execution date was scheduled.
Scott Panetti has not been as lucky.
Mr. Panetti is scheduled to be executed on December 3, 2014, despite the overwhelming evidence that he is seriously mentally ill and cannot understand the reasons for his execution. Mr. Panetti believes that Satan is working through the State of Texas to execute him for preaching the word of Jesus Christ. He has no rational understanding of the real relationship between his crime and the ultimate punishment awaiting him.
Mr. Panetti’s history of mental illness is well documented and began fourteen years before the capital offense. He buried furniture in his backyard, believing it was possessed by the devil. He was hospitalized over a dozen times, and was involuntarily committed while suffering from delusions two years before his crime. Despite the extensive documentation of his long standing mental illness, the Texas courts nonetheless sided with the single witness to deny Mr. Panetti’s mental illness, an expert witness with slim credentials, hired from Florida, whose testimony revealed his lack of familiarity with Mr. Panetti’s mental health history.
Most recently, the Texas courts failed to give him even a current competency hearing. The last time the courts assessed Mr. Panetti’s understanding of reality was over seven years ago. Nonetheless, Texas has eagerly plowed ahead with its December execution date.
The courts’ failure is even more vexing because Mr. Panetti actually won his case in the United States Supreme Court – earning a legal standard that should have guaranteed his safety from execution. Indeed, the Panetti standard was what the North Carolina court used to determine that Guy LeGrande was too mentally ill to be executed. It is a cruel twist that Mr. Panetti, whose case legal scholars and practitioners around the country see as the definition of whom is too mentally ill to be executed, nonetheless is scheduled to be executed.
The execution of Mr. Panetti accomplishes no reasonable goal. Executing someone who does not understand the reason for his punishment violates not only the Constitution, but basic decency.
Stand against this outrage by demanding that Governor Rick Perry stop Mr. Panetti’s execution by commuting his death sentence to life in prison, here.
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project
Pew has a new poll out on Americans’ attitudes toward privacy, and it is full of interesting findings. A New York Times blog piece on the poll focused on the so-called “privacy paradox”—people’s seeming willingness to share personal information despite their professed concern over privacy (more on that below). But for me the most striking finding is that Americans’ confidence in the privacy and security of electronic communications is very low, with over half thinking that email, text messages, chat, and social media are “not at all” or “not very secure.” In too many ways, these beliefs are well-founded, and yet these are the mediums that Americans are using more and more to communicate in their everyday lives.
One problem is that if people don’t have confidence that they can communicate privately, that will leave many feeling uneasy and insecure in their communications. That is not how people should go through life in a free, democratic society. When asked if they feel they do enough to protect their own privacy online, 61% feel they “would like to do more.” For anyone with an understanding of how limited our privacy is, it’s impossible to go online without being haunted by that feeling. And that lack of confidence will inevitably drive people to seek other means of communicating when they feel they must have privacy, and therefore reduce the societal value of these communications channels.
Fully 80% of adults say Americans should be concerned about the government’s monitoring of phone calls and internet communications. Just 18% disagree. Similarly, 80% say they are concerned about the use of data by social networking sites. Sometimes we see people on the government side of the privacy debate claiming that we should be focused on the corporate side, or vice versa, but the truth is (as this poll also found) people care about both and (as I argued at greater length here) both matter greatly.
Other interesting findings from the poll:
- Landline telephones. Pew asked respondents how private and secure they felt various communications mediums were, and people felt most secure with landline telephones. I suspect that reflects a recognition of the fluidity and insecurity of “data” in today’s world, and the feeling that landline telephones aren’t built around data (despite the fact that that’s increasingly is not the case). It’s probably no coincidence too that landline telephones are also the oldest and most established communications medium, and are subject to the most mature set of regulatory rules and protections for privacy.
- Location tracking. As someone who has tried to spread understanding of the sensitivity of location tracking data, I was pleased to see that 82% consider such data to be sensitive (including 50% who say “very sensitive” and 32% “somewhat sensitive”).
- Anonymous speech. Fully 42% of respondents reported having posted comments, questions or other information online anonymously—a reaffirmation of the importance of anonymous speech online. Interestingly, the younger a person is the more likely they are to post anonymously, according to the survey.
- Privacy and the young. The poll contains more data points undercutting the myth that there’s some generational shift underway away from privacy, such as the finding that more young people than old consider the contents of their email to be very sensitive. (I took on that myth last year in this piece.)
- Free online services. While online service providers are increasingly looking to “personalization” as a source of differentiation and profits, and the advertising industry would have us believe the myth that online services will disappear without ever-expanding access to our personal details, Americans’ attitudes seem to fly in the face of those trends. By a nearly 2-1 margin they disagree with the statement, “I appreciate that online services are more efficient because of the increased access to my personal data.” True, 55% agree that they are willing to share “some” information about themselves to use any online services for free—but that is such a broad statement that only someone who would never share any information with anyone online, no matter how trusted, would be able to honestly disagree.
- Bad online experiences. Pew reports that “only” 11% of adults report having had a bad experience due to embarrassing or inaccurate information posted about them online. For young adults (aged 18-29), who probably use the internet more, the rate was 16%. To me these numbers do not seem low at all; the fact that more than one in 10 users had a bad experience of this kind, which can be quite devastating, seems quite significant and a reminder of how important it is for people to retain control of their information. And 16% of all adults also report having asked someone to remove or correct online information about them.
- A fundamental divide. Probably the most fundamental attitudinal divide among Americans was in response to a Pew query on whether “It is a good thing for society if people believe that someone is keeping an eye on the things that they do online.” Here we get to the true heart of the privacy issue—the question of whether people value individual freedom and autonomy, or the ability of the community to watch over what individuals are doing. A person’s view on that matter, I strongly suspect, will govern his or her attitudes across a wide variety of public policy matters that implicate privacy rights. Pew found that 62% disagreed with the statement, while 36% agreed.
Finally, on that “privacy paradox,” I don’t actually think it’s much of a paradox. Much of it (as EPIC’s Marc Rotenberg points out in the piece) can be explained through network effects and lock-in—the fact that networks like Facebook are natural monopolies with (as economists put it) increasing returns to scale. You can’t just pick the network that you like best as you can with your breakfast cereal; you have to use the one everyone else is using, as does everyone else, which ends up locking everyone in. In addition, privacy is in many contexts a diffuse and/or abstract concern, and therefore it’s only natural that it often gives way to sharper, more immediate needs. So in an environment where legal protections are absent, people end up making compromises even though they don’t feel good about it.
There’s no reason people shouldn’t be able to have their cake and eat it too—to enjoy conveniences and social communications without giving up control over their information. Unfortunately, in today’s world they can’t, and powerful forces oppose any steps to fix it. But as Pew found, by a roughly 2-1 margin Americans do want to fix it; 64% believe the government should do more to regulate “what advertisers do with their personal information,” compared with 34% who think it should not.
In September, the ACLU wrote a letter on behalf of Meghan McInerney, a medical doctor doing her fellowship in Pulmonary and Critical Care Medicine, a sub-specialty of internal medicine. Dr. McInerney had been denied additional break time to pump breast milk during her pulmonary medicine licensing examination. She took the examination on Wednesday, November 12.
You wouldn't think that as a medical professional, I'd be asked to choose between the health of my child and the advancement of my medical career, but that's exactly the choice that was put before me.
I am a physician in my third and final year of sub-specialty fellowship training. I am also a first-time mother trying to make my way through the logistical and emotional challenges that come with working 50-70 hours per week and having an infant at home—while remaining committed to breastfeeding.
At the end of our training in Pulmonary and Critical Care Medicine we are required to take sub-specialty certifying exams, which are offered only once a year to all trainees in the country. This exam, which is administered by the American Board of Internal Medicine (ABIM), is a grueling all-day test. After paying the $2,200 exam fee, I wrote to the ABIM to inquire about accommodations for breastfeeding mothers to express milk during breaks on the exam day.
I never anticipated how ABIM—a medical organization—would respond: "we give no accommodations to nursing mothers".
I wrote again to clarify that I was not asking for extra time to take the exam, but extra break time. Again, the response from the ABIM was that the time allotted in the 10 hour exam day should suffice. Their explanation was that as a nursing mother I am not considered a person with a disability, so I don't qualify for protections under the Americans with Disabilities Act. They added that they couldn't even guarantee that there would be a private place for me to pump.
Without the ability to pump, I would face engorgement and extreme discomfort, possible infection, or a diminished milk supply—not to mention not having enough food for my baby. Without the additional break time, I would have to choose between pumping and doing the things the rest of the test takers were able to do with their breaks—for example, eating, using the restroom, getting fresh air, or studying.
I was astounded by ABIM's response. First, how could a medical society take a position so antithetical to the medical evidence (The American Academy of Pediatrics recommends breastfeeding at least one year)? Second, where did the ADA come into this? I don't consider myself disabled and am not requesting accommodations as such. I am simply trying to do what I believe is best for my baby.
Equally shocking was some of the feedback I got from fellow physicians. While some supported me in challenging the ABIM's policy, others suggested I postpone the exam for a year, or even that I stop breastfeeding altogether. Is this what it means to be a working mother? Why should I have to choose between continuing to breastfeed and remaining on track with my career?
I decided I would not make that choice. Instead, I contacted the ACLU, which, along with a private attorney, sent a letter to the ABIM on my behalf, highlighting the fact that the ABIM's policy is discriminatory against women.
I am happy to report that last month the ABIM reversed its decision: They stated that they would allow me the additional break time I requested, and agreed to provide me with a room in which I could pump in private. And, they added, the ABIM will review its policy for nursing mothers.
Thanks to this change, when I took the exam earlier this week I was able to pump twice during the nine-hour test day. My experience made it clear how necessary this extra time was, as there is no way I would have had enough time without the extra break time provided.
The ABIM has done the right thing by not forcing me to choose between the health of my child and staying on track with my chosen career. I hope that they will take this one step further and put into place a policy that applies to all nursing mothers who will sit for the board exams they administer.
Click here for more information on ACLU's past campaigns to eliminate barriers for new moms entering the legal profession.