Television Directing’s Still a Boys Club

September 24th, 2014 No Comments   Posted in ACLU Nationwide
By Melissa Goodman, National Security Project & Ariela Migdal, ACLU Women's Rights Project

This blog was cross-posted from the ACLU of Southern California.

The Directors' Guild of America has released its annual diversity report on TV directing, and it confirms what reports have shown over the past many years: calling "Action!" is still the province of white men, with no improvement for women or women of color since last year.

Women directed only 14 percent of all episodes in 2013, and women of color directed only 2 percent of episodes, both unchanged since 2012. A full seventy of the 225 TV series analyzed – nearly a third of all shows on TV – did not hire a woman to direct a single episode.

This shut-out of women directors is an equality and civil rights issue that should concern all members of the viewing public, especially when viewed in the context of women's under-representation in the entertainment industry more broadly.

Women, and women of color most egregiously, are overwhelmingly excluded from directing in both TV and film. This kind of gender segregation would be concerning in any industry, but it's especially troubling because the sector is so dominant in southern California (indeed, it's simply known as "the industry").

But it is also concerning because what this industry produces so profoundly shapes and influences our culture. The longstanding exclusion of women and people of color (men of color directed 17 percent of episodes, up 3 percent from last year, an improvement attributable entirely to Tyler Perry directing his own shows) is more than an employment discrimination issue. It also means that the cultural content watched by millions of Americans in their homes is created almost exclusively by white men. Recently released studies once again document how this gender disparity negatively affects how women are portrayed on the screen, which, in turn impacts how women and young girls perceive themselves and their opportunities in life.

The "celluloid" ceiling is shockingly hard to crack. Recent reports have shown that what's true for directors is true for behind-the-camera jobs more broadly. One report recently showed that women make up only 23 percent of film crews, and only 2 percent of directors on 2013's 100 top-grossing movies, and only 5 percent of workers in cameras and electrical departments.

Women directors have begun to speak out about the pervasive discrimination they face. This is important, as it's increasingly clear that the old boys' network in TV and film directing will not change on its own.

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Fearmongering NSA Reform

September 24th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Neema Singh Guliani, ACLU Legislative Counsel

On June 5, 2013, Edward Snowden shocked the world, providing proof that Americans were being spied on by their own government. Some praised him as a hero, others condemned him as a traitor, but there was general consensus that the NSA had severely overstepped its bounds.

Reform was needed, fast.

Over the course of the last year, we saw strong reform proposals introduced into Congress, only to be eviscerated in the eleventh hour. We saw Republicans and Democrats, who don't agree on much, join together on NSA reform – even though they were opposed by a group of powerful pro-surveillance hawks.

And, in July, we saw this do-nothing Congress accomplish something remarkable – take a step closer to actually addressing this important issue. A bipartisan group of 19 senators introduced a new version of the USA Freedom Act, a bill aimed at reining in the NSA. The bill garnered the support of many privacy groups, technology companies, and the intelligence community.

But now there's a new threat to passing this important bill: ISIL. Or rather our fear of ISIL.

Now, a few senators who oppose surveillance reform and seek to derail the bill are arguing that passage of the bill would adversely impact our fight against this radical group in Iraq and Syria.

Nothing could be further from the truth.

First and foremost, the USA Freedom Act would not restrict the government's ability to conduct surveillance abroad or on the battlefield. The bill doesn't touch the authorities that govern surveillance abroad, so the United States would still be able to collect communications in Syria to aid air strike operations. Nor would it prevent the government from targeting the communications of suspected ISIL operatives in Iraq and Syria or collecting communications in an emergency – like the Boston marathon bombing – to protect American lives.

What the law would do is restrict the government's ability to spy on Americans, particularly by requiring the government to justify programs that collect details of the call or Internet use of all citizens under Section 215 of the Patriot Act and other parts of the Foreign Intelligence Surveillance Act. Some say we need these programs to fight terror. Yet an assessment by the Privacy and Civil Liberties Oversight Board, an independent government oversight body, found that there were no instances where the nationwide call-metadata program conducted under Section 215 prevented an act of terrorism.

Put another way: Our country has spent billions on programs under Section 215 that trample the rights of Americans, hamper journalists, and take resources away from more effective counterterrorism efforts – and we have nothing to show for it.

Further, even the intelligence community says unequivocally that passage of the Senate version of the USA Freedom Act would not impair national security. In a letter indicating their support of the bill, Attorney General Eric Holder and Director of National Intelligence Eric Clapper said that the USA Freedom Act preserves "essential Intelligence Community" capabilities. Given these statements, the national security concerns expressed by some members of Congress ring hollow.

In times of war, there is always a temptation to barter with Americans' freedoms. But more surveillance does not translate into more security. In this era of perpetual war, we should be extra cautious about signing away our rights in exchange for hollow promises of enhanced safety.

Further delaying NSA reform won't help us stop ISIL. But passing the USA Freedom Act will help us protect a vital part of America.

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Three Years in a Cage. No Charges and No Lawyer.

September 24th, 2014 No Comments   Posted in ACLU Nationwide
By Brandon Buskey, ACLU Criminal Law Reform Project

Octavious Burks has been waiting for 10 months.

He's locked in a jail in Scott County, Mississippi. He hasn't been formally charged. He hasn't been assigned an attorney.

This is a recurring nightmare for Octavious: The same thing happened in 2009 and 2012. In each case, he was held for roughly a year. Each time, he was eventually released without a trial or a conviction. Octavious has spent over three years of his life locked in a cell without ever being formally charged – let alone found guilty – of a crime.

In November of 2013, Octavious was arrested in connection with a robbery. The judge set his bail at $30,000, which Octavious could not afford. Also unable to pay for a lawyer, Octavious applied for a public defender. The court approved his request, but 10 months later Octavious still hasn't received an attorney – an advocate who could fight to lower his bail, challenge his arrest, or prepare for a trial.

Why not? Because he has never been formally charged with a crime.

That's how it works in Scott County: No one gets a public defender until they've been indicted. In other places, this might not be a big deal. In Colorado, prosecutors have 72 hours after an arrest to formally indict someone. In Kansas, it's two weeks. But in Scott County and throughout Mississippi, the wait could last forever. That's because Mississippi doesn't limit how long a prosecutor has to indict someone, even if that someone is wasting away in jail.

In Scott County, felony indictments are only issued three times a year, after a grand jury convenes to formally charge defendants with their crimes. If you're lucky, you might wait two months to hear about your charges. If you're unlucky, you're put off until the next session. That's at least another four months in jail. And if you're like Octavious, you're left completely in the dark for months on end.

Octavious is not alone in the darkness – dozens of people are locked in the Scott County jail, without attorneys or formal charges. And this problem isn't confined to one jail in one county. People statewide are losing months and sometimes years of their lives to a glacial justice system. That means years without work. Years without being able to care for their families. Years without knowing when the ordeal will end. All without the state having to prove a thing.

The Constitution protects you from being arbitrarily imprisoned on a mere allegation. When you're accused of a crime, you have a right to an attorney, even if you can't afford one. You have a right to a speedy trial. Scott County cannot pretend as if the Constitution doesn't apply in its courts. That's why the ACLU yesterday filed a lawsuit in federal court on behalf of Octavious and others trapped in the Scott County jail, demanding that local judges, sheriffs, and district attorneys change the way they do business.

It's time for Scott County to stop illegally robbing people of their lives.

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Hello, My Name Is NOT "Gaytard." How May I Help You?

September 24th, 2014 No Comments   Posted in ACLU Nationwide
By Tyler Brandt

I've been out to my family and friends since I was in the 5th grade. I'm not ashamed of being gay, and I don't hide who I am from anyone.

After school ended last semester, I wanted to find a summer job for the usual teenage reasons: spending money for clothes, a cell phone, going out with friends, and maybe even save up a little too. I applied for a crew member position at the Taco John's in my town – Yankton, South Dakota – in early June, interviewed the next day, and started working the night shift the day after that.

I hadn't been working at Taco John's long before the night manager was saying things about me to other employees behind my back, calling me "faggot" and saying things like, "Tyler is so gay it's not even funny."

About three weeks after I'd started working there, the night manager called me into the office and handed me a name tag he'd just made. He said, "Wear this!" with a huge grin on his face like he was really proud of himself. I looked at the name tag and saw that it read "Gaytard" with little hearts on either side of the word. My mom raised me to be respectful and polite, and I didn't want to lose my job. So I put the name tag on and then said, "Okay, can I take it off now?" He just laughed at me and told me to leave it on.

He made me wear that embarrassing name tag all night.

Every time I had to help a customer, I tried to stand so that it was hidden by the register. But that didn't really make much difference because the manager kept calling me "gaytard" really loudly in front of customers for the rest of my shift: "Hey, gaytard, help this customer!" and "Take out the trash, gaytard!" It was extremely humiliating.

After I got home, I decided I just couldn't go back for more abuse at Taco John's. I want my little brothers and sisters to look up to me and know that I stood up for myself. So I went to the restaurant the next morning, turned in my uniform, and told the daytime manager why I was quitting. He tried to make me give the name tag back, but I told him I was keeping it.

After I started telling my story publicly, Taco John's International put out a statement saying they take harassment in their restaurants seriously, but they said it was up to the local franchise in Yankton to do something about the humiliation I faced. Well, all the local franchise did about it was say that the name tag was my idea and that I thought it was funny.

It wasn't my idea, and I never thought it was funny. It's a mean, ugly word that makes fun of both gay people and people with developmental disabilities, and I would never call myself a name like that.

That's why today, the American Civil Liberties Union is helping me file formal charges of discrimination with the U.S. Equal Employment Opportunity Commission.

It was wrong for the manager to humiliate me like that, and it was wrong for Taco John's International to refuse to do anything about what happened at a restaurant with their name. I want other LGBT people to know that this type of harassment is illegal, even in places like South Dakota. And I hope we can make sure nobody who works at any Taco John's ever has to go through that kind of humiliation at work again.

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Documents in ACLU Case Reveal More Detail on FBI Attempt to Cover Up Stingray Technology

September 24th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project

What is used by dozens of local law enforcement agencies around the country, featured in numerous news stories, and discussed in court, yet treated by the FBI like it is top secret? That would be "Stingray" cell phone surveillance gear, of course.

This week, MuckRock released a mostly redacted copy of the nondisclosure agreement that the FBI makes local police departments sign before they are permitted to buy a Stingray from the Florida-based Harris Corporation. We have seen the FBI pressure local law enforcement agencies to withhold basic information about purchase and use of Stingrays before, but now we have greater insight into how it does so.

According to the agreement, released by the Tacoma, Washington, Police Department, the Harris Corporation notifies the FBI whenever a local police department wants to buy a Stingray, and then the FBI requires the local agency to sign a lengthy nondisclosure agreement before buying the device. The FBI's role in the process is a condition of the Federal Communication Commission's equipment authorization issued to the Harris Corporation.

The result is that members of the public, judges, and defense attorneys are denied basic information about local cops' use of invasive surveillance gear that can sweep up sensitive location data about hundreds of peoples' cell phones. For example, when we sought information about Stingrays from the Brevard County, Florida, Sheriff's Office, they cited a non-disclosure agreement with a "federal agency" as a basis for withholding all records. When the ACLU of Arizona sued the Tucson Police Department for Stingray records, an FBI agent submitted a declaration invoking the FBI nondisclosure agreement as a reason to keep information secret.

In fact, the FBI agent's declaration in the Arizona case quotes extensively from the nondisclosure agreement, thus filling in some of the text blacked out in the Tacoma document. The Tacoma Police Department can't redact text from an FBI document that the FBI has already disclosed in court proceedings.

According to the Arizona declaration, the nondisclosure agreement states that:

Disclosing the existence of and the capabilities provided by [cell site simulator equipment] to the public would reveal sensitive technological capabilities possessed by the law enforcement community and may allow individuals who are the subject of investigation…to employ countermeasures to avoid detection by law enforcement.

Therefore, "any information" about Stingrays "shall be protected from potential compromise by precluding disclosure…to the public."

Extensive information about Stingray devices and other forms of cell phone tracking is already in the public domain. Withholding basic data about how Stingrays are used, what rules govern their use, how the privacy of innocent bystanders is protected, and whether police are getting probable cause warrants from judges doesn't keep us any safer. It only functions to subvert our right to keep tabs on what our government is up to. This kind of secrecy allows the government to keep constitutional violations hidden in the shadows.

In the midst of the government's excessive secrecy, the ACLU continues to push for transparency and reform. On Monday, the ACLU of Florida filed a motion to unseal applications submitted by the Sarasota Police Department seeking court orders authorizing Stingray use, as well as the resulting orders. Those records had originally been taken from the court by the police and kept in the police station—an unusual and illegal practice—and then, incredibly, spirited away by the U.S. Marshals Service when the ACLU filed a public records request. A judge subsequently instructed the government to deposit sealed copies of the applications and orders back with the court. We are asking for them to be made public.

And in Texas, the ACLU's Chris Soghoian testified at the state legislature about Stingrays and other police surveillance tactics, prompting one local paper to dig into the Houston Police Department's purchase of hundreds of thousands of dollars' worth of Stingray equipment.

As demonstrated by our interactive map of police Stingray purchases across the country, more information about Stingray surveillance is becoming public by the week. Yet, the FBI and local police departments keep trying to hide the ball. The public deserves to know whether the police are violating the Constitution. Secrecy agreements with federal agencies shouldn't be used to circumvent open records laws, or hide facts that are already in the news.

Do Cops Really Need Tanks to Keep Us Safe?

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

This piece was originally published on The Crime Report.

The militarized law enforcement response to peaceful protests over the killing of an unarmed black man in Ferguson, Mo. last month, has prompted several federal officials to question the use of military weapons and tactics by local law enforcement, and the federal programs that fuel it.

They aren't the only ones who are skeptical.

In some cities and counties, officials and the public are resisting, and even reversing, the militarization of their police. Recently, for example, the City Council of Davis, California voted to return a Mine Resistant Ambush Protected Vehicle (MRAP) ordered by the police chief from army surplus.

"When it comes to help from Washington, we—like most communities—have a long wish list," explained Mayor Dan Wolk. "But a tank, or MRAP, or whatever you choose to call it, is not on that list."

President Barack Obama has called for an administrative review of the Defense Department's 1033 program and other programs that authorize the Pentagon to give away military equipment to state and local police, as well as Justice and Homeland Security Department funding streams that enable police departments to purchase new military weapons and vehicles.

In a letter to Defense Secretary Chuck Hagel, earlier this month, Senate Majority Whip Richard J. Durbin wrote that the events in Ferguson raised a "new urgency" on questions on whether the use of military tactics and equipment by local police forces is appropriate. He specifically raised a concern that the Pentagon may be supplying military equipment to police departments that have a history of violations of federal laws, or are already the subject of allegations or investigations relating to the possession of such equipment.

The Senate Armed Services Committee also held a hearing this month to explore ways that Congress might enhance oversight and accountability of the Defense, Justice, and Homeland Security programs that provide military surplus equipment to law enforcement.

These are important and positive developments. But the issue has been attracting attention long before the events in Ferguson. In June, The American Civil Liberties Union (ACLU) a report, War Comes Home: The Excessive Militarization of American Policing urging a re-examination at all levels of government of the use of military tactics and equipment by law enforcement. .

It is important to note that there is increasing bipartisan support for re-considering these policies at the local level in various parts of the country. Citizens and local authorities argue that the acquisition and use of military equipment by local law enforcement has had a damaging impact on poor communities and communities of color—particularly as a result of its deployment in the failed and wasteful War on Drugs.

Davis isn't the only California city to object to the militarization of its police forces. In San Jose, the decision to get rid of an MRAP vehicle came from the police itself.

"It is a useful tool, but we realize it could be viewed by the community as the militarization of SJPD," explained San Jose police spokeswoman Sgt. Heather Randol. "It could create a divide, and we want the community's trust."

In New Jersey Bergen County Sheriff Michael Saudino announced that he is delaying his request for two MRAPs as well, after his initial request received considerable opposition not only from Bergen County residents, but also from the Republican County Executive.

In North Carolina, the heads of the Chapel Hill, Hillsborough, and Carrboro police departments, as well as the Orange County Sheriff's Office, have announced a series of public forums to answer community questions about their use of military weapons and technology, "responding to concerns from community members regarding ongoing national events around the concept of ‘militarization‘ of local law enforcement." Elected officials and other community leaders have said they plan to be in attendance.

In Utah, a bipartisan coalition of lawmakers and advocacy organizations, including the ACLU of Utah, and Libertas—a state-based libertarian group—succeeded in passing bills calling for stronger civilian oversight over police tactics during the 2014 legislative session and is poised to enact further reforms this session. The state's Law Enforcement Interim Legislative Committee has put the issue on its agenda for consideration later this month.

As federal officials consider possible avenues to reform, they will undoubtedly hear arguments from some representatives of local law enforcement agencies that the military equipment is needed to protect officers and enhance public safety. While officer safety is certainly a consideration, the ACLU study found that, in fact, the use of military weapons and tactics tends to escalate the risk of violence.

The nation watched that phenomenon play out dramatically in Ferguson.

Moreover, crime is down across the country, making clear what many people already know: we do not need grenade launchers and tanks to keep us safe.

As federal officials and legislators continue their examination into the militarization of policing, they should take note that the people have spoken: their constituents do not want their police to treat their neighborhoods like war zones.

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Arizona’s Naked Photo Law Makes Free Speech a Felony

September 23rd, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Lee Rowland, Staff Attorney, ACLU Speech, Privacy & Technology Project

Which of the following could land you a felony conviction in Arizona?

  1. Showing images of naked prisoners tortured at Abu Ghraib;
  2. Linking to the iconic Pulitzer Prize-winning photograph of “Napalm Girl,” showing an unclothed Vietnamese girl running from a napalm attack;
  3. Sharing a close-up photo of a woman’s breast with a breastfeeding support group;
  4. Waving a friend over to see a cute naked baby pic — like the one you see on this page.

Unfortunately, the answer is all of the above. That’s because Arizona recently passed a law that makes it a felony — and potentially a sex offense — to share any image of nudity or sexuality before you get consent from every person pictured.

Protecting personal privacy is, without doubt, a laudable goal. Indeed, the ACLU works tirelessly to protect your private data. But Arizona’s “nude photo law” is a seriously misguided attempt to achieve that goal. This new crime is broad and confusing. It applies to anyone who shares a nude image, not just to bad actors who intentionally invade another’s privacy. A prosecutor need not demonstrate that a person had an expectation of privacy in an image before charging you with a crime for sharing it. And the law applies equally to a private person’s hacked naked photo and a beautiful nude at a photography exhibit — because the law’s breadth encompasses truly newsworthy, artistic, and historical images.

As a result, the nude photo law creates bizarre and troubling burdens on speech fully protected by the First Amendment.

For proof that this law goes way too far and criminalizes innocent and valuable speech, you need look no further than the august group of bookstores, newspapers, photographers, publishers, and librarians that challenged the law together today (web page on case and complaint). Many of them belong to our stalwart First Amendment allies at the Media Coalition, whose members include the plaintiff associations of publishers, librarians and booksellers. Represented by the ACLU and Dentons US LLP, the plaintiffs just want to be able to offer books, art, news, and history without risking a criminal conviction in Arizona. That doesn’t seem too much to ask.

Proponents of the law indicated that it was intended to address the harms of “revenge porn” — a digital phenomenon typified by a scorned lover who maliciously posts private images of an ex online, often alongside her personal details. The harms of such conduct can be very real, and they predominately impact women. There are true horror stories about women who have suffered extreme humiliation and harassment, had intimate photos sent to relatives and coworkers, and lost job opportunities.

States can address these harms without treading on free speech, if and only if those laws are tailored to addressing malicious invasions of privacy. Arizona’s is not. And we’re not going to blindly trust that the government will apply this broad law responsibly, only against the “bad guys.” The photo above literally illustrates why.

One of the plaintiffs in our lawsuit, the Voice Media Group, publishes the newsweekly Phoenix New Times. The New Times published a series of images from a local art show by Arizona artist and Arizona State University Professor Betsy Schneider. One of the images from that art show is the great image above – documenting a month in Schneider’s infant son’s life.

Maricopa County publicly considered opening a police investigation into the New Times’ publications of these images, after police requested an investigation. A Phoenix city attorney told the press that if the photos were found to be illegal, “Everybody who picked up one those issues [of the New Times] could be prosecuted for possessing child pornography.” That’s what can happen when law enforcement officials wield problematic laws as broadly as they’re written.

The First Amendment just doesn’t permit that kind of carelessness. Laws meant to address real horrors need to do just that – without serving as Trojan Horses that erode our hallowed free speech rights.

This Is What Happens When the Secretary of Defense is in Charge of Your Medical Care

September 23rd, 2014 No Comments   Posted in ACLU Nationwide
By Chase Strangio, Staff Attorney, ACLU

When Chelsea Manning was sentenced to 35 years in prison on August 21, 2013, she was immediately worried that she would be denied desperately needed medical care for gender dysphoria.

So far, her worst fears of suffering without treatment have come true.

Every decision about her care goes from her doctors, all the way up the chain of command to the Secretary of Defense, who is notably not a doctor or a prison administrator. Even the Army's own providers admitted that her treatment is moving at a "glacial pace."

But the Constitution does not permit medical care to be provided sluggishly when it is urgently needed. And for Chelsea, the care is critical and the consequences for withholding it are dire.

Chelsea was first diagnosed with gender dysphoria, a serious medical condition, more than four years ago. When she arrived at the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas, over a year ago, the first thing she did was request treatment for gender dysphoria, including hormone therapy and permission to follow grooming standards for female prisoners, such as growing her hair.

Shortly thereafter she was again diagnosed with gender dysphoria, and a treatment plan was developed by Army medical providers in November of 2013. This seemed promising, and Chelsea was hopeful that the Army would follow the clear medical protocols for treating gender dysphoria.

Unfortunately, it soon became clear that Chelsea's medical treatment would be governed not by doctors but by Washington officials and be dictated not by medicine but by politics.

After a failed attempt to transfer Chelsea from the USDB into the federal Bureau of Prisons, the Associated Press reported on July 17, 2014, that Defense Secretary Hagel had approved "rudimentary" treatment for Chelsea's gender dysphoria. After the ACLU, the ACLU of Kansas, and Chelsea's civilian defense counsel David Coombs sent a letter to DOD and Army officials on August 11, 2014, demanding that she receive treatment, we learned just how "rudimentary" this treatment would be. On August 20, the Army provided Chelsea with female underwear and sports bras, but it continued to withhold hormone therapy and prohibit her from growing her hair and otherwise following the grooming standards for female prisoners.

Treating severe gender dysphoria with sports bras is like treating a gunshot wound with a Band-Aid. Such inadequate treatment sends the message to Chelsea and the rest of the world that the Army is not taking her health needs seriously.

People with gender dysphoria should not be forced to suffer without treatment because government officials don't take their medical needs seriously. As the American Medical Association recognizes, without treatment, gender dysphoria can lead to "distress, dysfunction, debilitating depression … suicidality and death."

Chelsea, like so many transgender women in prison, is experiencing the unrelenting anguish of being denied life-saving treatment. As Janet Mock wrote after Chelsea came out as transgender last year, "[w]e … all, whether we've been charged with a crime or not, whether we are popular or unpopular, whether we are loved or unloved, whether we are understood or stigmatized, deserve safe, quality, knowledgeable healthcare."

Today we are heading to court to demand that the government treat Chelsea Manning's serious medical condition and fulfill its obligation under the Constitution.

The days of government discrimination in providing healthcare for transgender people are numbered. It is the bravery of our clients like Chelsea, Andrea Fields, and Ophelia De'lonta who stand up to this injustice that will make the world safer and more just for the rest of us.

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Government Placing Itself at Top of New Air Travel Caste System

September 22nd, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Hugh Handeyside, Staff Attorney, ACLU National Security Project

A new report from the Government Accountability Office shows that the government is going easy on itself when it comes to aviation security screening, and in the process it is stretching the concept of watchlisting to the breaking point. Not only has the Transportation Security Administration expanded its use of blacklists for security screening to identify passengers who may be "unknown threats," but it also has compiled vast whitelists of individuals—including members of Congress, federal judges, and millions of Department of Defense personnel—who are automatically eligible for expedited screening at airports. These changes have made a broken watchlisting system even more arbitrary, unfair, and discriminatory.

We already know about those at the bottom of this aviation security caste system. We've long known that the TSA's Secure Flight program uses passenger information submitted with airline reservations to screen against watchlists maintained by the FBI's Terrorist Screening Center, including the No Fly List (which includes individuals who are barred from flying to, from, or over the United States) and the Selectee and Expanded Selectee Lists (which include individuals who are subjected to additional screening every time they fly).

Those watchlists, in turn, are compiled based on criteria that are so overbroad, ambiguous, and riddled with exceptions as to virtually guarantee that innocent individuals will end up blacklisted. Even information of questionable or doubtful reliability can support the "reasonable suspicion" standard that the FBI uses for placing people on the master watchlist. In fact, a single, uncorroborated piece of information—including a Facebook or Twitter post—can be enough to get you on the master watchlist and the Expanded Selectee List.

But the TSA isn't stopping there. Thanks to the GAO report, we now know that the TSA has modified the Secure Flight program so that it assigns passengers to one of three risk categories: high risk, low risk, or unknown risk. We've long been critical of this kind of passenger profiling—which the TSA has proposed in the past—because it inevitably leads to greater intrusion into individuals' private lives. And of course, it raises the question of what criteria and information the TSA uses to sort people into these categories.

The TSA is keeping those criteria secret, which is part of the problem. However, the GAO report states that the "high-risk" passengers aren't just those who appear to match a name on the FBI's No Fly, Selectee, or Expanded Selectee lists (as problematic as those lists may be). Now, the TSA is also using intelligence and law enforcement information, along with "risk-based targeting scenarios and assessments," to identify passengers who may be "unknown threats."

In other words, the FBI's flawed definition of someone who is a suspected threat to aviation security isn't relaxed enough for the TSA, so the TSA is creating its own blacklists of people who are hypothetical threats. Those people are also subjected to additional screening every time they fly. To make matters worse, another recently published GAO report indicates that the redress process for travelers who have been incorrectly caught up in the watchlisting system does not apply to these new TSA blacklists. So the TSA's "unknown threats" are truly without recourse.

Moreover, attempting to identify "unknown threats" in the traveling public exacerbates the already unacceptable risk that watchlists will be used for racial and religious profiling—something that leaked documents strongly suggest is already happening.

What about those at the top of this hierarchy? Who gets the privilege of being designated "low risk" and undergoing less onerous screening measures? TSA has established separate lists of entire populations of passengers who, by virtue of their status within the government, get expedited screening, including:

  • Members of Congress
  • Federal judges
  • Department of Defense (DoD) military and civilian personnel (approximately 2.9 million people)
  • Employees of national intelligence agencies (approximately 70,000 people)
  • Homeland Security Advisory Council members and Homeland Security Advisors

These groups receive "Known Traveler Numbers" that they submit when making travel reservations and are then routed to the TSA Pre-Check line when they arrive at the airport. Others (those who have been neither whitelisted nor blacklisted) can apply for expedited screening through Pre-Check by undergoing a background check and submitting biographic information and fingerprints.

Superficially, it's easy to see the TSA's logic in focusing on these individuals for whitelisting. Many are involved in defending the country, and some have undergone background checks as part of their positions within the government. But that logic doesn't stand up under scrutiny. The problem with the TSA's approach goes to the heart of watchlisting in general: the government is increasingly relying on the unproven and flawed premise that it can predict if a person will commit a dangerous act in the future.

Just as the TSA is blacklisting people who it has decided are unknown, hypothetical threats, it is whitelisting people simply by virtue of their status as employees of the government. That status, however, says next to nothing about whether those individuals will engage in violence or pose a threat to security on any given day. Government employees and officers commit crimes, including crimes that affect national security. Because there is no reason to believe that a given DoD employee is less likely to threaten aviation security than, say, a teacher or an accredited journalist, whitelisting the DoD employee is arbitrary.

The more fundamental problem is how the logic applies to the rest of us.  Instead of subjecting all travelers to the same procedures designed to detect threats to aviation, the government is essentially telling the American public that if we want the same privileges that the government has awarded itself, we'll have to convince the government that we won't commit dangerous acts in the future. That means turning over more and more information about ourselves: about who we are, what we do, and with whom we associate. By default, the TSA's system treats any reluctance to fork over that information as somehow suspicious, and it reinforces the emerging airline security caste system.

Similarly, insulating lawmakers, judges, and other decision-makers from the burdens and inconveniences of air travel does not serve the interests of democracy and fairness. When the government makes status-based decisions about aviation security, it pits Joe Congressman against Joe Sixpack, and unsurprisingly, the congressman comes out ahead.

Ultimately, when we start rewarding or punishing people because of who they are, as opposed to what they've done, we drift farther from the principles at the heart of our Constitution.

Fighting for Captain Underpants

September 22nd, 2014 No Comments   Posted in ACLU Nationwide
By Samia Hossain, William J. Brennan Fellow, ACLU Speech, Privacy, & Technology Project

"Captain Underpants and the Perilous Plot of Professor Poopypants." "Captain Underpants and the Wrath of the Wicked Wedgie Woman." "Captain Underpants and the Farty Fight for Free Speech." Okay fine, I made up the last one.

The silly titles of the "Captain Underpants" series lined our bookshelf at home, thanks to my younger brother. As his wiser and worldlier older sister, I wanted nothing to do with such absurdity. It seems some older people, however, have taken greater offense to Dav Pilkey's children's books, their paranoia almost more farcical than the titles themselves.

For the past two years, "Captain Underpants" was the book most frequently sought to be censored or banned, according to the American Library Association (ALA). Complaints have included "offensive language, unsuited for age group, [and] violence." Aside from potty jokes, the books contain no inappropriate language. The extent of violence includes a ping-pong serve-o-matic that shoots out eggs instead of balls, landing on everybody's head.

Horrific, really.

The ALA's Office for Intellectual Freedom reported 307 challenges to books in 2013, though it estimates that 70 to 80 percent of challenges are never reported. Other books on the top 10 most challenged list for the past year include popular reads like Toni Morrison's "The Bluest Eye" and Suzanne Collins' "The Hunger Games."

INFOGRAPHIC: Which of your favorite books have been banned?

Banned Books Week is an effort the national book community has organized since 1982 to draw attention to the problem of censorship in schools, bookstores, and libraries. The week celebrates so-deemed "harmful" books, which paternalistic forces have tried, sometimes successfully, to take off the shelves. More importantly, it raises awareness about how dangerous it is for our country to ban books in the first place.

Despite the protections of the First Amendment, our right to think, record, and spread our ideas has been consistently challenged since our country's founding.

Print and visual media have been censored many times to the detriment of our democracy – too often because the powerful feared that their comfortable status quo was under threat. Beginning in the 1830s until the end of the Civil War, for example, the U.S. postmaster general refused to carry abolitionist pamphlets to the South. During the Red Scare, filmmakers were jailed for alleged ties to communism. In the 1980s, the Reagan administration actually passed a law to end the production of Braille copies of Playboy — because heaven forbid the visually impaired be corrupted through their fingers.

Today, teachers and librarians remain under a barrage of paranoid adults attempting to remove material from school curricula and bookshelves. Other censorship advocates have turned to the Internet as their new frontier. And in an age of surveillance, many writers are increasingly engaging in self-censorship to protect themselves from a snooping government.

Since its inception in 1920, the ACLU has been at the forefront of the fight against censorship, winning many important victories for free speech along the way. Today we are defending reporters' right to observe and write about executions, fighting for students to exercise their First Amendment rights, and advising a government whistleblower who has spurred an unprecedented debate on the need for government reform.

Banned Books Week celebrates these and other efforts to defend our right to think and learn about whatever we want, no matter how unorthodox or unpopular. Whether about an underpants hero, a troubled youth, or a civil rights leader, information and our unfettered access to it is critical for free thought and the health of our democracy.

Find your local Banned Books Week event here, and keep on fighting the farty fight.

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