Big Government v. Traumatized Defenseless Children = Justice?

March 18th, 2015 No Comments   Posted in ACLU Nationwide
By Joanne Lin, Washington Legislative Office

Imagine a child alone in immigration court – defenseless – representing herself against a government prosecutor, standing before an immigration judge, and trying, in a language she does not speak, to make a case for her life. Unfortunately, this horrifying scene takes place regularly across the country and Congress is currently debating legislation that could make an unhappy ending to this scene even more likely.

As children continue to enter immigration courts alone, this month, the House Judiciary Committee debated two immigration bills that aim to gut the due process rights of traumatized children, many of whom have fled violence and sexual abuse and who face potential lethal harm if deported to Central America. Both bills were voted out of committee and their next stop could be the House floor.

The Asylum Reform and Border Protection Act (H.R. 1153) and the Protection of Children Act (H.R. 1149) seek to extinguish the government's existing authority to pay for legal representation for individuals in deportation proceedings. H.R. 1153 seeks to bar the government from paying for immigration counsel for anyone in removal or appeal proceedings, including children, adults with mental disabilities and other vulnerable persons. Currently, only one-third of unaccompanied children in deportation proceedings are represented by an attorney. H.R. 1153 also appropriates funds to hire 60 more government trial attorneys. H.R. 1149 takes aim at unaccompanied children by weakening their right to counsel, and states that "access to counsel" suffices. It doesn't matter if they don't speak English, don't know what they need to prove up, and don't understand what's at stake if they lose. They're on their own. Worse, given the 2014 influx of Central American children to our border, refugee protection and human rights experts reported that large numbers of children fled brutal sexual and gang-related violence.

Government-paid counsel is an indispensable component to a fair and efficient immigration court system. The presence of immigration counsel greatly increases children's chances of winning their immigration case. Using a decade's worth of immigration court records, the Transactional Records Access Clearinghouse at Syracuse University found that whether an unaccompanied child had an immigration attorney was the single most important factor influencing the case's outcome. In nearly three-quarters of cases in which a child was represented, the immigration court allowed the child to remain in the U.S. In the cases where the child had no immigration counsel, only 15 percent of the children were allowed to remain in the U.S. The remaining 85 percent were ordered to be deported.

While Congress continues to fight over immigration, all lawmakers should agree on two basic principles: children cannot represent themselves in high-stakes deportation proceedings. And our Constitution and our conscience cannot tolerate a court system that pits powerful government prosecutors against defenseless traumatized children, who, upon deportation, could be harmed, and even killed.

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Politics Swirling Around Clinton Email Scandal Obscure Real Problems

March 17th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office

Hillary Clinton’s use of a personal email server while secretary of state has inevitably become a fully inflated political football in these early days of the 2016 presidential race—with the right somehow linking the emails to the late Vince Foster, and Clinton’s allies offhandedly dismissing the value of open government with comments like “people don’t care about email policies."

But make no mistake, the scandal has highlighted the very real dangers to government transparency that result when politicians use private accounts to conduct official business. The scandal also highlights important concerns around cybersecurity and overclassification.

Here’s the background. Shortly before being sworn in in 2009, outgoing Senator Clinton set up a private email server at her home in Chappaqua, New York and registered the domain “clintonemail.com.” Two months later, Secretary of State Clinton started using that email exclusively for all correspondence—both private and government.

This practice was at odds with relevant guidance at State. Further, by keeping all emails, private and professional, on one server, Secretary Clinton effectively gave herself personal veto power over what would be subject to open records laws and what wouldn’t. And, in fact, that’s what happened. Although Secretary Clinton turned over 55,000 pages of emails in 2014, she made the determination on what to disclose and what to destroy (including over 32,000 emails that she deemed, at her sole discretion, private).

Fortunately, the laws have changed since then and high-ranking officials are now expressly required, if they use personal email accounts for government business, to send a copy of the work email to the government within 20 days. That requirement must be enforced strictly.

So what are the concerns?

The open government point should be obvious. Ironically, the Clinton White House was the first to recognize the importance of email as potential federal records. Previously treated as akin to disposable pink phone message pads, then-Staff Secretary John Podesta wrote a memorandum in 1993 clarifying that emails qualify as presidential records and must be retained. Out of concern that records could be lost, that memo barred the use of personal systems.

Violations of that policy during the Bush administration starkly highlighted the danger in allowing government officials to conduct official business using private accounts. As the Committee for Responsibility and Ethics in Washington has documented at length, various Bush White House officials used Republican National Committee accounts to communicate with Attorney General Alberto Gonzales in what would become the scandal over the hiring and firing of United States attorneys that the Department of Justice later found to be the inappropriately politicized.

The decision by Secretary Clinton to use “clintonemail.com” exclusively for official business disregards these historical examples. Unfortunately, officials can face the strong temptation to hide official business out of the reach of Freedom of Information Act requests. And as the new retention rules recognize, that’s unacceptable for our democracy.

On cybersecurity, the concerns are perhaps less apparent but are just as acute. As ACLU Principal Technologist Chris Sogohian has noted at length, you’re “on your own” when protecting a private server from hackers. With a government email account, you’ve got an entire IT apparatus protecting your information. Indeed, security for the government system is going to incorporate state-of-the-art techniques developed by the National Security Agency, which, despite its issues with mass surveillance, is pretty good at keeping hackers at bay.

Finally, the email controversy highlights the incoherence and unfairness of existing classification policies. Despite the fact that the State Department routinely deals in extensive volumes of classified information, Secretary Clinton has said that absolutely nothing in her private email was classified. As many classification experts have noted, that’s pretty astounding if true, especially given that, as we now know, President Obama himself communicated with Secretary Clinton using her private email. Worse, and regardless of whether the claim is true, Secretary Clinton is virtually assured of immunity from any investigation into the improper handling of classified information, let alone legal consequences.

That immunity should be seen as of a piece with the amazingly lenient treatment of General David Petraeus, who pleaded guilty to a misdemeanor earlier this month for giving classified documents to his mistress while serving as the head of the CIA. And it contrasts tragically with the 35-year sentence imposed on Private Chelsea Manning (who, ironically, was prosecuted in part for releasing State Department emails), or the three felony charges facing Edward Snowden, or the months and months of hard time to be served by the unprecedented number of other national security “leakers” prosecuted by the Obama administration.

Fortunately, this whole imbroglio leaves us with a teaching moment. Secretary Clinton could—like President Obama in 2008—pledge a new-found commitment to open government. If she does decide to run in 2016, she should acknowledge her mistake in using a private server and embrace the cause of government transparency as a campaign promise. That’s actually the best way to give her team possession of this political football—not to mention being the right thing to do.


America’s Mass Incarceration Habit Needs a Serious Fix

March 16th, 2015 No Comments   Posted in ACLU Nationwide
By Michael K. Williams

When I was growing up in East Flatbush, one of the toughest neighborhoods in Brooklyn, one of my very best friends was something else. He, let's call him MZ, could have had Hollywood on a string. He was actually my inspiration for becoming an actor.

MZ, however, suffered from bipolar disorder. Too poor to get the mental health care he needed, he ended up behind bars, and it wrecked him. He was no longer the friend and brother I knew. Between the disorder and what he experienced in prison, he's never been the same – a shell of his former self.

Stories like MZ's are all too common. Our society has been using jails and prisons as a dumping ground for the mentally ill and those addicted to drugs. These human beings don't belong in prison, they belong in treatment, yet we've pushed them into cages and denied them their humanity.

Is it shocking that these same valuable citizens, like my friend MZ, emerge worse off than when they went in? Let's face it: America is addicted to mass incarceration, and it's making our society sick.

Our habit of locking away human beings is a particularly unseemly kind of addiction for a country that prides itself on freedom, especially when the United States incarcerates more of its citizens than China, Russia, or Iran. Right now America has about 5 percent of the world's population but is responsible for 25 percent of the world's incarcerated population. In other words, one out of four people in prison today are inside U.S. jails and penitentiaries. That is nearly 2.4 million human beings – an obscene number.

In America, it is black men, more than anyone else, who suffer from our dependence on mass incarceration. Currently, black men are six times more likely to be imprisoned in federal and state prisons and local jails than white men. This horrifying racial disparity comes in part from the war on drugs, which has been devastating communities of color for the past four decades. Although blacks and whites use illegal drugs at roughly the same rates, African-Americans make up nearly 40 percent of those put away for drug offenses in state or federal prison, even though we only make up 13 percent of the U.S. population.

We need to realize that these statistics represent human beings. These men are someone's child, someone's parent. Someone loves them and still wants the best for them. These men have dreams of being great, too.

Ruining people's lives for small, nonviolent offenses tied to drug use, drug addiction, or mental illness is not the way to go. Health problems are health problems, not criminal justice problems. It's by the grace of God that I didn't get into more serious trouble. If I had, there's no way I'd be where I am today.

I will never forget that there are many more men with bright futures who look like me that have been relegated to our prison systems. However, instead of being provided with opportunities to express themselves or their creativity safely or getting the right support, they make mistakes which cost them dearly. The costs of those mistakes are high and these men pay with their futures.

Once people have done hard time, the world closes in on them. It's damn near impossible to get a job. Depending on where you live, you likely can't vote. The possibility of becoming a productive citizen is foreclosed on by a system that denies those who have served their time with another chance. Instead, they're forever seen as ex-cons.

And don't forget the huge cost of confinement. The U.S. spent $80 billion in 2010 on locking up people on the local, state, and federal level, which could be better spent on education, health care, or simply getting at-risk people the counseling they need so they don't fall back into addiction and petty crime.

We have spent 40 years stuffing our prisons, mostly with black and brown men, and for what? This isn't who we are. America, we can do better. We have to, for all people. I know because MZ deserved better, and there are hundreds of thousands more like him.

Michael K. Williams is the ACLU ambassador for ending mass incarceration. He is an actor living in Williamsburg, Brooklyn.

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Native American Women Still Getting Short Shrift on Emergency Contraception

March 16th, 2015 No Comments   Posted in ACLU Nationwide
By Georgeanne M. Usova, Washington Legislative Office

Nearly two years ago a federal court ordered the FDA to make Plan B emergency contraception an over-the-counter drug. That means it is now available in pharmacies across the country to women of any age without a prescription, just like any other over-the-counter drug.

So why, then, are Native American women still unable to get it at pharmacies run by the government?

This week, a group of Senators, led by Sen. Barbara Boxer (D-Calif.), wrote to the Department of Health and Human Services seeking answers to exactly that question. These senators were told back in 2013 that the Indian Health Service, the government agency that runs pharmacies used by many Native American women, would update its policy to ensure compliance with FDA standards.

Native American women are still waiting.

An investigation by Sen. Boxer's staff found that pharmacies run by the IHS, contrary to FDA guidelines, still aren't providing emergency contraception over the counter. Some pharmacies do not offer emergency contraception at all; others required a prescription; and others wouldn't provide it to women based on their age.

A separate survey conducted by the Native American Women's Health Education Resource Center last year found similar results.

This is unacceptable.

Emergency contraception like Plan B is important health care for women, particularly for Native American women who are sexually assaulted at more than twice the national rate. It's a safe way to prevent pregnancy after contraceptive failure, unprotected sex, or sexual assault – but only if taken quickly. It's most effective within 12 hours, with effectiveness decreasing every 12 hours after that.

Because many Native American women who rely on IHS pharmacies live in very rural communities, IHS failure to make Plan B accessible effectively makes it unavailable. If a Native American woman can't get Plan B at her local IHS facility, she can't just walk down the block to another location. The next closest commercial pharmacy might be hundreds of miles away.

Native American women have waited too long for access to emergency contraception, which is now much more easily available to women across the country. The federal government is legally and morally obligated to ensure that these women and communities are not left behind.

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Obama Promised Transparency on Drones, But We’re Still in the Dark

March 16th, 2015 No Comments   Posted in ACLU Nationwide
By Matthew Spurlock, Legal Fellow, ACLU National Security Project

Targeted killings have been a central part of U.S. national security strategy for more than a decade, but the American public still knows scandalously little about who the government kills, and why. Today we're filing a new lawsuit in our continuing fight to fix that.

The CIA and the military use drones to target suspected "militants," "insurgents," and "terrorists" in at least half a dozen countries. American drone strikes have killed thousands of people abroad, many of them children. The program has engendered pervasive fear and anger against the United States in countries where the attacks frequently occur.

Our government's deliberative and premeditated killings – and the many more civilian deaths from the strikes – raise profound legal and ethical questions that ought to be the subject of public debate. The Obama administration has made numerous promises of greater transparency and oversight on drones. In his 2013 State of the Union address, President Obama pledged to make lethal targeting "more transparent to the American people and the world" because "in our democracy, no one should just take my word for it that we're doing things the right way."

But the administration has failed to follow through on these commitments to openness, and it is continuing to withhold basic information­. When it has released anything – or been compelled to by lawsuits – discussion of crucial aspects of the program have been omitted or redacted. This lack of transparency makes the public reliant on the government's self-serving and sometimes false representations about the targeted-killing program.

That's why today the ACLU filed a new lawsuit to enforce a Freedom of Information Act request asking for basic information on the program, including records on how the government picks targets, before-the-fact assessments of potential civilian casualties, and "after-action" investigations into who was actually killed.

The ACLU has made some headway for transparency. We are litigating two other FOIA lawsuits seeking information about targeted killings. One of them is about the strikes that killed three Americans in Yemen: Anwar al-Aulaqi, his 16-year old son Abdulrahman, and Samir Khan. Despite the public promises of openness, the government has continued to fight tooth-and-nail against releasing documents in those cases – or in some instances, even admitting that it has any documents at all.

In both cases we have won important rulings in federal appeals courts, forcing the government to release some documents, including a 41-page Justice Department Office of Legal Counsel memo addressing the legal theories that were the basis for the extrajudicial killing of Anwar al-Aualqi. The belated publication of the memo was an important victory for transparency, which led to a broad and long-overdue debate about the lawfulness of the government's targeted-killing program and, in particular, of the lawfulness of the government's deliberate and pre-meditated killing of a U.S. citizen. But the memo­ – almost a third of which was redacted – leaves many questions unanswered.

For example, the memo doesn't explain the government's definition of imminence, the circumstances that would make "capture infeasible" (and therefore, according to the government, lethal targeting permissible), or the reasons for the government's targeting decisions. Worse, it point to a whole body of secret law that the administration continues to shield from the American public.

The administration's subsequent gestures towards transparency are just as scant. The public summary of the secret Presidential Policy Guidance – which sets new standards for lethal targeting – relies on the same conclusory definitions as the Office of Legal Counsel memo. In a major speech at the National Defense University in 2013, the president asserted that "before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set." But multiple investigative reports contradict this assurance. The government could dispute these findings, but instead it chooses to keep nearly all the details about how the program works hidden from view.

We aren't giving up. One of the most important aspects of our new lawsuit is that it covers more recent documents, including the Presidential Policy Guidance under which the targeted killing program likely now operates.

The government's drone program lives far too deep in the shadows. As long as the government continues its campaign of secret, unacknowledged lethal strikes across the globe, we will fight to subject this policy to the scrutiny and debate it deserves.

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Judge to Government: ‘National Security’ Isn’t a ‘Magic Word’ That Allows Constitutional Rights Violations

March 16th, 2015 No Comments   Posted in ACLU Nationwide
By Lindsay Nash, Skadden Fellow, Immigrants' Rights Project

For the past seven months, the Department of Homeland Security has been detaining and refusing to release immigrant mothers and children – even newborns – who have fled extreme violence and persecution in Central America to seek refuge in the United States. Why would the government implement such a heartless policy? To send this message to other people who may consider coming in the future: "You're not welcome."

But now, by court order, this policy must end.

On February 20, in response to a class-action suit  by the ACLU and others, a federal district court in D.C. ruled that it is illegal to detain asylum-seeking families to send a message to others and enjoined the government from doing so. The ACLU represents asylum-seeking families who have already been found by an immigration officer or judge to have a "credible fear" of persecution, meaning there is a "significant possibility" they will be granted asylum. Many have family members living in the United States who are willing to ensure that the families appear for scheduled court appearances.

The heartbreaking stories of our plaintiffs reflect the reasons these families braved a dangerous journey to the United States, and the reasons why they should not be subjected to detention. One is a mother who along with her son fled from Honduras after years of physical abuse at the hands of her son's father; another is a mother who fled from El Salvador with her 5-year-old and 8-month-old daughters to escape brutal and unrelenting abuse by the children's father; and another is a Salvadoran woman who escaped to the United States with her young son and daughter after her common-law husband physically abused her and threatened to kill her children.

Unfortunately, in family detention centers nationwide, these stories are not unique.

In the past, DHS generally did not detain families who arrived in the United States seeking asylum. Most eligible individuals were released if they could show that they were not a flight risk or a danger to the community. However, beginning in the summer of 2014, DHS started detaining families in large numbers as part of an "aggressive deterrence strategy" intended to send a message to other Central Americans that if they sought refuge in the United States, they would be similarly punished. Under this policy, even if families demonstrated that they had a credible fear of persecution and were neither flight risks nor dangerous, DHS refused to consider them for release and kept them locked up.

Sound cruel? It is. It's also unnecessary and illegal.

In its February 20 decision, the district court for the District of Columbia agreed. It ruled that the government cannot continue to lock up these families without determining that these individuals actually pose a danger or flight risk that requires their detention. It made a provisional decision that the case can proceed as a class action and granted a preliminary injunction against the government's policy. This means that DHS must now release families on bond or other conditions unless the family members pose a flight risk or danger.

Importantly, the court saw through the government's argument that detention of the women and children was necessary to prevent a mass influx that would threaten national security, explaining that the "incantation of the magic word ‘national security' without further substantiation is simply not enough to justify significant deprivations of liberty." It explained that "[t]he simple fact that increased immigration takes up government resources cannot necessarily make its deterrence a matter of national security. . . "

Since this decision, DHS has been setting bonds for families who it previously refused to release. And, although reports indicate that the bonds DHS is setting are often still prohibitively high, anecdotal reports suggest that immigration judges are lowering the bond amounts and families are being released.

The government's policy of refusing to consider these families for release was wrong and embarrassingly inhumane. The ACLU is urging the White House and DHS to acquiesce to the district court's decision rather than fight to reinstate its illegal family detention policy.

The case, RILR v. Johnson, was filed in U.S. District Court in Washington, D.C. Lead counsel are the ACLU's Immigrants' Rights Project and Covington & Burling LLP. Other counsel are the ACLU of the Nation's Capital, the ACLU of Pennsylvania, the ACLU of Texas, and the Immigration Clinic at the University of Texas School of Law at Austin.

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Can You Think of a Better Way to Spend $7.2 Billion Than Unnecessarily Locking Up Nonviolent Offenders and Undocumented Immigrants?

March 16th, 2015 No Comments   Posted in ACLU Nationwide, Washington Markup
By Jesselyn McCurdy, ACLU Washington Legislative Office

The Department of Justice spends $7.2 billion a year to incarcerate over 209,000 people in the federal Bureau of Prisons at a cost of over $30,000 per year per person.

This is unsustainable, both morally and economically.

The majority of these individuals are African-American and Latino. The criminal justice system in this country disproportionately impacts communities of color, perpetuating a harmful legacy of racism that stretches back to our nation's founding.

But there is good news: We know how to reduce the federal prison population and make the system fairer, less costly, and safer. The Charles Colson Task Force on Federal Corrections, created by Congress to address challenges facing the Federal Bureau of Prisons, met to discuss these goals. We presented some of our key recommendations.

First, the Department of Justice must continue to pursue the Smart on Crime Initiative launched by outgoing Attorney General Eric Holder to reduce unnecessary incarceration of people with low level non-violent drug convictions. " In addition, DOJ should deal with a major and unaddressed category of federal prosecutions – those relating to immigration. Illegal entry and re-entry are now the most prosecuted federal crimes in the United States. Immigration enforcement should be returned to civil authorities.

Second, Congress must support smarter sentencing reforms, such as repealing or reducing all mandatory minimums, reducing sentences for individuals with two prior felony drug convictions from life without parole, and eliminating disparities in sentencing for crack and powder cocaine offenses. These reforms should also include making sentencing reductions retroactive for the current prison population. Almost half of the federal prison population is composed of people convicted of drug offenses.  Mandatory sentencing results in excessive prison terms for far too many people, while providing little public safety benefit, at a great expense to tax payers.

Third, the BOP should formally prohibit the use of solitary confinement for juveniles held under federal jurisdiction and implement recommendations from the 2014 BOP audit to reduce the use of solitary for adults. Solitary confinement is widely recognized as a psychologically and physically harmful practice that is often unnecessary to maintain safety inside a facility.

Fourth, Congress should expand BOP's compassionate release program and time credits for good behavior. Reducing inmates' actual time in institutional custody can help reduce the number of people in the federal prison system and, at the same time, incentivize good behavior and educational and rehabilitative efforts for the inmates themselves.

Finally Congress must eliminate legal barriers to reentry for individuals released from prison, and it must adequately fund reentry programming in order to reduce recidivism and ensure that returning citizens have meaningful opportunities to rebuild their lives.

The Colson Task Force faces a formidable challenge – but the time for change is now. We believe that our recommendations, if implemented, would go a long way to address the mass incarceration epidemic at the federal level.

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‘Tech Can Be a Champion of Privacy,’ Edward Snowden Tells Tech Leaders at SXSW

March 15th, 2015 No Comments   Posted in ACLU Nationwide
By Noa Yachot, Communications Strategist, ACLU
Edward Snowden had a message for some two dozen technology leaders at the SXSW Interactive festival today: “Tech can be a champion of privacy.” 
 
In an hour-long meeting conducted through Google Hangout, the whistleblower and tech leaders discussed the role of the tech community in curtailing mass surveillance and protecting the Internet from forces seeking to weaken it. The participants represented a range of interests and industries, and included former White House technology officers, startup CEOs, policy experts, engineers, and venture capitalists. All of them are concerned about the future of privacy, the confidence of their customers, and governments chipping away at the security of their products and the net as a whole. 
 
The meeting was something of a sequel to Snowden’s bigger address to SXSW last year, his first live appearance since his disclosures began in June 2013. As the ACLU’s Ben Wizner, who represents Snowden, noted in his introduction today, the tech community has, in many ways, heeded Snowden’s call from last year to develop tools to protect users where government has stalled. Indeed, the most significant privacy developments of late have originated from tech companies who have recognized their role in combating the government’s exploitation of their tools and its staggering violations of citizens’ trust and privacy. 
 
In the last year and a half, different forms of encryption have been implemented on countless websites and tools, spreading to companies as mainstream as Apple, Google and Whatsapp. That raises the cost of mass surveillance, forces the NSA to focus on actual targets where there’s evidence of espionage or terrorism, and helps expand the market for privacy. As a result, web security is no longer the province of techies alone. 
 
This cultural shift was palpable in the room today, where participants expressed overwhelming gratitude for Snowden’s disclosures and their impact, discussed today’s biggest threats to tech companies, and asked how they could better defend their users from a government seeking to weaken the Internet in the name of surveillance. 
 
Unsurprisingly, the tech community is making no friends in the intelligence community by promoting and implementing encryption across a range of platforms. 
 
In response, the government is threatening to compel companies to give it backdoor access to their products, even though foreign governments and criminal hackers will find and exploit these vulnerabilities too. “It’s not that we’re trying to lock law enforcement out,” Snowden said. “But to make a secure system it has to be secure against everyone.” 
 
Snowden proposed mechanisms to support the technologists seeking vulnerabilities in online systems, so that the people who discover them don’t sell them to the government, which pays big bucks to use them and make sure they go unfixed. What we need, he said, is a strong community working in the public interest to identify vulnerabilities and fix them. 
 
The discussion also covered the use of surveillance tactics by local law enforcement agencies, which benefit from privacy law advancing at a snail’s pace while technology zooms ahead. As we’ve seen in the case of Stingray technology, Snowden noted, surveillance tools once considered extreme can trickle down and become commonplace among local police before Congress or the courts finally act to regulate them.
 
Tech executives also had questions for the whistleblower. Barclaycard CIO Boe Hartman asked about the ethics of predictive analysis, and Swiftkey co-founder Ben Medlock about the obligations of tech companies to disclose to users how they use their data. Snowden’s answer: transparency and the opt-in principle, always. It’s critical that people achieve a measure of control over the data that is collected about them and how it’s used. If companies never offer an opportunity to opt-in, they risk outrage when their policies are ultimately exposed. 
 
Danny Weitzer, former White House deputy chief technology officer for Internet policy, said to Snowden, “I hope you know that the revelations you have made have changed the balance inside the U.S. government. What you’ve done has empowered people who were trying to speak toward a more open view of the Internet, a more civil rights and human rights view of the Internet.”
 
We hope he’s right. With multiple challenges in federal court and another opportunity for congressional reform coming up, it’s time for our public institutions of power to finally catch up. 

 


CISA Isn’t About Cybersecurity, It’s About Surveillance

March 13th, 2015 No Comments   Posted in ACLU Nationwide, Washington Markup
By Rachel Nusbaum, Media Strategist, ACLU Washington Legislative Office

They say the first step is admitting you have a problem. But sometimes that's the easy part.

When it comes to cybersecurity, it seems everyone in Washington admits we have a problem. It's in the solutions phase where things really start to fall apart for policymakers.

Instead of focusing on ways to make our data (and the devices we store it on) more secure, Washington keeps offering up "cybersecurity" proposals that would poke huge holes in privacy protections and potentially funnel tons of personal information to the government, including the NSA and the military.

Thursday, the Senate Intelligence Committee met behind closed doors to mark up the Cybersecurity Information Sharing Act of 2015. They voted 14–1 to advance the bill, with Senator Wyden offering the lone no vote.

Unfortunately, by all accounts, CISA is one of those privacy-shredding bills in cybersecurity clothing.

If you remember CISPA, the information-sharing bill that fell under the weight of its privacy failings last Congress and even drew a veto threat from President Obama, the problems with CISA might sound a little too familiar. This bill is arguably much worse than CISPA and, despite its name, shouldn't be seen as anything other than a surveillance bill – think Patriot Act 2.0.

The bill could also pose a particular threat to whistleblowers – who already face, perhaps, the most hostile environment in U.S. history – because it fails to limit what the government can do with the vast amount of data to be shared with it under this proposal. CISA would allow the government to use private information, obtained from companies on a voluntary basis (and so without a warrant) in criminal proceedings – including going after leakers under the Espionage Act.

If you are wondering how giving companies a free pass to share our personal information with the government will make our data more secure, you aren't alone. We've already written about why real cybersecurity doesn't need to sacrifice our privacy.

The ACLU also recently joined with a broad coalition to remind the committee about some of these problems – problems which have not been adequately addressed in the Senate's proposal.

The letter reads, in part:

We now know that the National Security Agency (NSA) has secretly collected the personal information of millions of users, and the revelation of the programs has created a strong need to rein in, rather than expand, government surveillance. CISA disregards the fact that information sharing can – and to be truly effective, must – offer both security and robust privacy protections. The legislation fails to achieve these critical objectives by including: automatic NSA access to personal information shared with a governmental entity; inadequate protections prior to sharing; dangerous authorization for countermeasures; and overbroad authorization for law enforcement use.

You can read the full letter, and view the full list of signatories, here.

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Discovering Hope in Selma

March 12th, 2015 No Comments   Posted in ACLU Nationwide
By Dennis Parker, Director, ACLU Racial Justice Program

Even with a ticket, I was unable to get close enough to hear President Obama or see any of the other notable people speaking at the Pettus Bridge in Selma last Saturday. And I was not among those fortunate enough to find space in the historic Brown Memorial Chapel to hear Eric Holder or the host of other celebrated leaders crowding in to commemorate the anniversary of Bloody Sunday. The event was a magnet for the famous, but I managed not to spot a single celebrity in the two days I spent in the welcome warmth of Selma's crowded streets.

But I don't feel cheated at having missed the big names.

Instead, I was reminded about the real heroes of the civil rights movement who are too often unsung. I joined my colleagues from the ACLU giving out posters to marchers and had the honor of meeting an astonishing assortment of people from all over, including scores of students and faculty from Berea College, the Kentucky college founded audaciously as a coed, integrated college 10 years before the Civil War; members of NAACP chapters and church groups, black fraternities, sororities, and motorcycle clubs from all over the South and the nation; Latino farmworkers; Detroit union members; and people of all races who had placed their lives in danger by marching 50 years earlier and had returned to revisit the site. All of these people thronged the area around the site of the marches 50 years earlier. They came not to be a part of the carnival atmosphere that sometime prevailed or to be seen in a place that was fleetingly the center of the world's attention. Instead, they were there because they felt that they needed to be there.

Part of that need came from the desire to honor the courage and fortitude of the marchers 50 years before, who confronted unimaginable danger in order to force the nation to live up to the lofty ideals it espoused but continually and cynically denied to its people of color. But mostly, they came with a strong sense of continuing need. Despite the clear progress that had been made, almost to a person, the people we met voiced the recognition that the hard fought gains that were achieved had yet to reach everyone and were increasingly being subjected to attack.

They commented on the hypocrisy of local and state officials applauding the march while proposing and signing legislation that put more and more barriers in the path of people trying to exercise the right to vote. ACLU staff came prepared with 4,000 posters, worried that there would be insufficient demand and learned that they could easily have distributed four times that number to people drawn to the "Still Fighting for Voting Rights" message that appeared on the poster.

There has been too much bad news on the racial front over the past year. The recent report of the United States Justice Department confirmed what so many knew about Ferguson and cities all over the country, that bias is still deeply ingrained in American society. But any despair that I've felt recently was reduced immeasurably by the sight of so many everyday people dedicated to finishing the arduous job that the Selma marchers and other past heroes started so long ago.

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