By Chase Strangio, Staff Attorney, ACLU & Keely Mullen
In a 2011 Marie Claire article, successful People.com editor Janet Mock, publicly told her story about growing up transgender. Though at the time she had only shared her transgender identity with a few people in New York, "stories about kids who have killed themselves because of the secrets they were forced to keep…shifted something in me," she said in the article.
Today, Janet is leader in the movements for trans justice and gender self-determination and this month, she released her first book, Redefining Realness. In the book, she writes, "I believe that telling our stories, first to ourselves and then to one another and the world, is a revolutionary act." This revolutionary act of storytelling has empowered so many trans people to voice their truths and we have seen a transformation in possibility for trans people.
"Redefining Realness was my opportunity to tell my story," Janet writes on her blog, "now I want to hear yours. I want to hear the 'untold thousands' out there. I want to provide another outlet in which we — together — can banish the overbearing silence that haunts many of us."
We were honored that Janet offered her insight to the ACLU on questions about trans narratives, racial justice and her vision for the future.
ACLU: It seems like so often the media tries to control the narratives of trans people's lives. How does the media contribute to the violence that transgender people must navigate in the world? What can the media do to support trans people in telling their stories?
JANET MOCK: As someone who has worked in media, engages in conversations with media and consumes much media, I am invested in this conversation. What I've learned is that most media tends to focus on the sensational to entice viewers and readers, and trans people's lives most often are framed this way. On the one hand it's garnered us visibility, but on the other it's spread much misunderstanding. When belittling punch lines and sensationalized objectification are a marginalized community's only representation, it's dangerous because it reinforces the idea that we're not human and therefore worthy of mistreatment, exiling and violence. What leaves me hopeful, though, is that trans people are creating the media and the stories of their own lives, and this is the best way to combat this pervasive dehumanization of our lives.
ACLU: One of the key themes that emerges in your story is how the histories of racism and transphobia shaped the choices available to you growing up. What can the racial justice movement do to be inclusive of trans justice? What can the LGBT rights movement do to center racial and economic justice?
Note from Janet in response to question: I don't know if I'd say my work engages much with "transphobia" as much as it engages in the intersectional lens of those of us who embody multiple identities. I do think anti-trans rhetoric and discrimination shapes my work but through my own experience, I wouldn't call it "transphobia."
JANET MOCK: I center my work around the multilayered experiences of young trans women and/or trans women of color. By doing so, I challenge the single-identity focus that plagues many movements that believe in simplicity or universality of experiences. I can never just speak about trans women because I am not just a trans women; I can never just speak about Black folk because I am not just a Black person. So for me, my work -- particularly through my writing -- must be muddied and complex because we live complex lives. I would challenge both movements to be intersectional in their approaches. Simply put, the racial justice movement must realize that many of their siblings are trans, and the LGBT movement must realize that centering their work around white middle-class cis folk leaves many of us who live under the weight of multiple oppressions behind.
ACLU: A few weeks ago we wrote about the murder of Larry King. There is so much to take on in the world for trans youth, particularly trans girls of color. In your book you write about how you have "heard parents say all they want is 'the best' for their children, but the best is subject and anchored by how they know and learned the world." What is your vision and hope for the next generation of trans and gender non-conforming people?
JANET MOCK: My vision is that they are affirmed and validated, that they find people who will fiercely advocate for them in schools, medical establishments, governmental agencies and social services, that they are able to navigate the world safely and freely as their true selves and that they can be instilled with such possibility that provides them with an audacity to dream even bigger dreams.
ACLU: If you could pass along one message to young trans people who can't imagine a future of possibility, what would it be?
JANET MOCK: I would tell them that their identity is real and valid and that nothing is wrong with them. I would tell them that life is a long journey and though it seems like becoming and revealing their true selves feels insurmountable that all they must concentrate on is ensuring they are safe and comfortable with themselves. I would advise them to cancel out all the noise from detractors, even from their parents, and seek out solace and affirmation from folks who truly hear and see you – as you know yourself to be. You deserve to be affirmed, you deserve to be seen, you deserve all the happiness, all the joy.
ACLU: As you mention in your book and regularly in media appearances, trans people, particularly trans women of color, are disproportionately involved in the criminal justice system. What do you see as the most important steps that advocacy organizations can take to end mass incarceration and the overrepresentation of people of color in prison and jail?
JANET MOCK: The most important step would be for movement leaders to push this as a central issue, realizing that the weight of institutionalized and systemic oppressions on trans women, trans men and low-income, trans people of color makes them all the more vulnerable to criminalization. We need to do a better job at connecting the dots, at shedding light on the lived experiences of low-income trans folk, particularly those of color, who overwhelmingly exist in joblessness, who are grappling with not having enough funds to pay for shelter, to pay for food, to pay for the vital medical care they need. This need for funds pushes many to engage in underground economies like sex work that are heavily stigmatized and overly criminalized, leading so many of our siblings into prisons which are unsafe spaces for all of us. I think raising our political consciousness, whether through the work of organizations like the Sylvia Rivera Law Project, Black and Pink or the book Captive Genders, is a great start.
By Dennis Parker, Director, ACLU Racial Justice Program
A year ago, Kyle Thompson a young, Black, freshman was led away from his school in handcuffs and ultimately expelled from school. His offense? Mistakenly thinking that his teacher's attempt to take a note for him was a joke and playfully trying to get the note back. When he realized this wasn't play, he immediately let her have the note. That misunderstanding left Kyle out of school and facing criminal charges. His harsh punishment is a reflection of zero tolerance discipline policies; policies that all too often disproportionately impact young people of color.
In an address yesterday President Obama made it clear that there are too many "Kyles" being pushed out. The president set the stage by defining a problem – "Boys and young men of color — regardless of where they come from — are disproportionately at risk from their youngest years through college and the early stages of their professional lives."
He then went on to outline the broad contours of "My Brother's Keeper Initiative", a program seeking to harness the resources of the federal government, the private sector and a number of philanthropic foundations to address the lack of opportunities available to young men of color in the United States. The details of the initiative have not yet been announced. As with any ambitious undertaking, it is on those details that the ultimate success of the program will depend. But although numerous questions remain, the president's announcement was encouraging.
Most encouraging was the fact that the president's statements were a frank acknowledgement of the inter-related and complex factors which disadvantage young men of color. Although the president has been faulted in the past for avoiding the particular, harmful role that race plays in American society, yesterday's address left no doubt that he recognizes that the obstacles to "ladders of opportunity" in American society were ones that were, "in the aggregate" more likely to confront Black and Latino young men. And the consequences of those barriers were clearly laid out. It was clear that higher suspension, expulsion and arrest rates for students of color lead inexorably to fewer life opportunities in education, employment and the opportunity to participate fully in the nation's civic life. Equally clear was that although the effects are felt most harshly by young men of color, the problem is one that affects everyone and that the nation as a whole suffers. His assertion of the importance of recognizing that "my neighbor's child is my child" was particularly moving in light of his recognition of the presence in the White House of the families of Trayvon Martin and Jordan Davis, both of which lost children in a manner that raised questions about the extent to which the lives of young men of color are valued in American society.
Most heartening was the president's description of the issue of lack of opportunity for children of color as being one of the most important faced by his administration. It is hopeful that this emphasis will lead to the elimination of the barriers which limit young people of color and prevent us from being the greatest country that we could be.
As this program takes shape, there are some things which must be taken into consideration. Although the president lauded the initiative as one which will not require the infusion of great amounts of money, it is important that we assess realistically the role that grossly disparate resources plays in the lack of opportunity for school children of color. We must also be careful that the needs of girls and young women of color are not ignored by ensuring that these types of opportunities include them as well. Finally, while every effort is made to encourage young people of color to embrace values that will lead to success, we must recognize that many of the barriers they will face are external. On a daily basis the ACLU is working on dealing with discrimination in discipline, unfair zero-tolerance policies and improper use of police in schools. Our work underscores the fact that it is not enough to lead young people to the gateways of opportunities when the gates are locked by unfair and discriminatory practices.
A commitment to addressing the problems of lack of opportunity for children of color is an important first step. We are hopeful that the president and the nation as a whole carry through on this commitment.
By Shivana Jorawar, Esq., National Asian Pacific American Women's Forum
Next week, the South Dakota legislature is expected to pass HB 1162, a bill that stereotypes Asian immigrants and restricts access to abortion. Supporters of the measure are using racially inflammatory language, invoking nativism and warning of the supposed danger created by the presence of Asians in the state. The bans purport to criminalize doctors who perform "sex-selective abortions," which supporters claim are being sought out by Asian-American women.
Stace Nelson, one of the Representatives that voted in favor of the bill, stated, "Let me tell you, our population in South Dakota is a lot more diverse than it ever was. There are cultures that look at a sex-selection abortion as being culturally okay. And I will suggest to you that we are embracing individuals from some of those cultures in this country, or in this state."
This rhetoric is infuriating, but it is not new. The only thing new is how blatantly xenophobic the language in South Dakota is. These bans have typically been wolves in sheeps' clothing, thinly veiled in the language of equality. In South Dakota the wolf has lost its clothes.
Since 2011, abortion bans parading as women's rights bills and exploiting racial stereotypes have been on the rise. Lawmakers have proposed this in Congress many times and, in 2013, it was the second most proposed abortion ban at the state level. Given the onslaught of various types of attacks on abortion in recent years, this is striking. The ACLU, representing the National Asian Pacific American Women's Forum and the NAACP of Maricopa County, is currently challenging Arizona's version of this ban in court.
The hypocrisy of this bill is clear. Supporters claim Asian immigrants do not value women and girls, when their legislative records show plainly how little they care for the well-being of women. Instead of supporting measures that promote equal pay or ending violence against women, they are interfering in our most personal, private decisions. If they truly cared about gender inequity, their legislative agendas would look dramatically different.
Son preference, and sex-selection that can result from it, are deeply disturbing. However, there is no conclusive evidence that sex-selection is happening in the United States and, in fact, 2012 National Asian-American Survey data shows that Asian-Americans do not prefer to have boys over girls. Moreover, banning abortion is not a real solution. It has been shown to be ineffective in other countries and puts women's health at risk. The real solution is addressing the root of the problem—gender inequity.
In terms of enforcement, there is no real way to know if a woman is having a sex-selective abortion. Doctors may be left to profile women based on where they look like they are from, resulting in increased scrutiny for Asian-American women. Worse, providers may feel compelled to deny women care out of fear of facing criminal charges.
Further, we cannot deny the psychological impact of this measure on Asian-American women. Through my conversations with Arizona residents, I know women feel stigmatized under this law as having backward values and looked down upon by their friends and neighbors simply because of their country of origin. As an Asian-American woman myself, and a feminist, the rhetoric surrounding these bills is hurtful and maddening. It is reminiscent of the nineteenth century term "Yellow Peril," a colloquialism used to spread fear that Asians were attacking the American way of life. It also brings me to mind the Page Act, which restricted Chinese women from entering the country because of claims that they were "immoral" and would spread prostitution. The damage that language and laws like this can have on our sense of belonging and value as equal members of society cannot be ignored.
This concoction of oppressions, made up of sexism, xenophobia, and racism, is not fooling anyone. Those of us who truly care about women know this is simply an attempt to chip away at abortion rights, on the backs of women of color.
I’m an Arizona businessperson and, yes, profits are important to me. A thriving business needs solid financials but I believe it also needs something else: respect and a culture that encourages the fair treatment of all people.
I’m thrilled that Gov. Jan Brewer vetoed Arizona’s SB 1062, a law that could turn our free exercise clause on its head, transforming religious liberty from a shield into a sword, and I’m proud that Arizona’s business community and corporations across the nation forcefully spoke against this bill. Gov. Brewer was swayed by corporate arguments that SB 1062 is scaring off business and resulting in lost revenue, hurting Arizona’s “brand,” and placing businesses at risk of costly litigation.
But the consequences sparking outrage shouldn’t all be about the bottom line. Offering religious liberty as a cause of action in a lawsuit even if the government isn’t a party to the proceeding puts at risk the years of hard work that scores of businesses in Arizona have put into building accepting cultures and instituting policies that prevent employees and managers from discriminating against people on many bases, including sexual orientation.
SB 1062 and bills like it threaten to undermine inclusive companies by placing private businesses in the position of defending their own nondiscrimination policies and the government’s interest in treating all of us equally.
To resist this effort, officials in states like Mississippi, Missouri, Oklahoma and Kansas will need to hear from their business owners and operators. They’ll need to hear about the impact on companies that such discriminatory legislation could have. But it’s a shame businesses will have to talk largely about the financial implications of bills like this, and not the threat to workplace equality, in order to persuade legislators.
Every day this week, before Gov. Brewer’s veto, gay and lesbian Arizonans and their allies waved placards reading “Bad4Biz” outside the Arizona Capitol. It’s a shame we’re still so far from understanding equality in this country that those signs couldn’t simply say “Bad4Us.”
Entrepreneur Eric Crown is a founder of Arizona-based Insight Enterprises Inc., a Fortune 500 company, and other businesses. His companies employ several thousand people in Arizona.
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project
It is the height of the Cold War. A nuclear-missile-equipped Soviet submarine sinks in the Pacific Ocean, in suspicious circumstances. The CIA commissions reclusive billionaire Howard Hughes to secretly build a massive ship capable of lifting the submarine off the ocean floor using a colossal extendable claw. The ship is built, christened the "Glomar Explorer," and — disguised as a deep-sea mining vessel — sent on a top-secret recovery mission. Out on the high seas, the Glomar's claw locks onto the sub and raises it toward the surface — until it breaks into pieces with the crew watching helplessly. The crew recovers only a portion of it, the entombed bodies of Russian seamen still inside.
Soon, intrepid journalists get wind of the operation and file Freedom of Information Act requests for more information. A CIA lawyer — operating under the cover name Walt Logan — thinks up a novel way to keep the mission secret without telling an all-out lie: refuse to confirm or deny whether records about the Glomar Explorer's mission exist. One journalist sues over this confusing non-response, and a battle over government secrecy follows in court.
This is not the plot of a new Hollywood thriller. It is the true story of the origin of what is now known as the "Glomar response," recently presented in a fascinating Radiolab podcast featuring the ACLU's Jameel Jaffer. It is well worth a listen.
Why should we care? It's not just because we all like a good tale of intrigue at sea; it's because the CIA and other government agencies continue to use the Glomar response to facilitate excessive government secrecy when Americans seek records under the Freedom of Information Act. Building off that first episode of Cold War concealment four decades ago, in answer to requests by the ACLU and others, the government has refused to confirm or deny whether it has records about drone strikes, the targeted killing of U.S. citizens, secret detention and abuse of prisoners at the U.S. airbase in Bagram, Afghanistan, NSA surveillance, and torture and rendition of detainees. These are all areas where the public has a vital interest in accurate information about the government's actions and abuses. By relying on the Glomar response, the government seeks not only to keep the public in the dark and cut off debate, but also to preempt efforts to get courts to order release of specific documents.
There are limited circumstances in which a Glomar response may be necessary to protect veritable government secrets, but as I've written before in The New York Times (with Jameel Jaffer) and in the NYU Law Review, it has been deployed far beyond acceptable bounds. Perhaps most disturbing is the way the government uses Glomar to facilitate selective and misleading disclosures. Government officials often "leak" information to the press that paints controversial programs in a positive light on the condition that the press withholds their names. But when asked to officially release records under FOIA, those officials clam up and hide behind the Glomar response. The result is an absurd double standard, and our democracy suffers for it.
As Radiolab's story illustrates, the Glomar response was spawned in the clandestine depths of Cold War spycraft. It has unfortunately grown to typify the duplicitous government secrecy of our modern age.
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office
The new rule released yesterday governing when the Department of Justice can investigate journalists seems like a dollop of progress with a sizeable helping of potential concern. The attorney general does, however, deserve credit for some progress on fixing the issues that led to the Associated Press subpoena and James Rosen controversies last year.
First, let me lead with two biggish problems. The rules have a couple of vague national security exceptions, which are separate from carve-outs for "death" or "serious bodily harm." Generally speaking, laws protecting the press yield to the latter, which should also cover the former. (Presumably, death or serious bodily harm will follow from a grave threat to national security.) Listing them separately could suggest that national security harm means something other than a physical threat to American persons or property. This opens the door to abuse.
Additionally, the rule does not cover the use of "national security letters" in terrorism and intelligence cases, which can be used broadly to secure transactional information and can come with a gag on the recipient (currently subject to First Amendment challenge). This also could be a serious failing.
On the flip side, the rule does adopt our primary recommendation, which was to require notice to the news outlet in many more cases before issuing a subpoena to a third-party record holder. One of the biggest problems with the sweeping subpoenas of the AP reporters' phone records was the lack of advance notice to the AP, which would have allowed it to go to court to challenge the request before release of the phone records.
Under the new rule, the attorney general would personally have to approve a delay in notice, and would only be able to do so only if he or she, "for compelling reasons," determines that notice would "pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or seriously bodily injury." In other words, notice would be presumed unless the Justice Department can articulate a specific harm. That's the opposite of the previous rule.
Again, that "grave harm to national security" exception is troublingly undefined, but the presumption in favor of notice is clearly an improvement. The rule also, with respect to the "integrity" exception, expressly states that mere delay of the investigation does not qualify as harm, an important fix.
Additionally, the rule laudably clarifies that the government may not pretend to suspect reporters of a crime because of activity within the scope of their job. Previously, an obscure law created a perverse incentive for federal investigators seeking a search warrant in leaks cases to allege that a reporter to whom classified information had been leaked was complicit in an Espionage Act violation. That was the James Rosen problem.
But there are a couple of other random issues. There's an odd carve-out for subpoenas and other demands for information from comments pages on news websites and other third-party content over which the outlet doesn't exercise editorial control before it goes up. Given modern blogs, wikis and social media, to name just a few types of sites and services dependent on third-party content, this could be a gaping hole in the rule.
At the end of the day, however, these new rules seem to be slightly more than half a loaf. The "suspect exception" fix is tangible progress, and the notice requirement, if used properly, will help prevent a future fishing expedition, like we saw in the AP case.
The new rule is better than "better than nothing," but definitely not a panacea.
By Sandra S. Park, ACLU Women's Rights Project
Last April, during the Supreme Court oral arguments in our case challenging patents on human genes, Justice Kagan remarked, "The PTO seems very patent happy." Her comment, and the unanimous decision invalidating gene patents, clearly expressed the court's concern that the Patent Office is overstepping its authority by approving patents that thwart, rather than foster, scientific inquiry and progress.
The Supreme Court will soon re-visit whether the Patent Office has gone too far in granting exclusive rights to what should properly remain in the commons. In the next few months, it will rule in Alice Corp. Pty. Ltd. v. CLS Bank International, a software patent case that completely divided the U.S. Court of Appeals for the Federal Circuit and is sparking controversy in the tech world. Alice follows three recent decisions – with the gene patents case being the last – issued by the court reaffirming the longstanding principle that the Patent Act does not permit patents on products of nature, laws of nature, and abstract ideas. Patents on abstract ideas are especially likely to raise First Amendment problems, as the First Amendment protects freedom of speech and thought.
The case involves patents on a method for addressing the risk that one party might back out of a deal after the other one has already paid. You can read about the details of the patents here, but the steps of Alice's patented method essentially call for a third party to keep track of financial transactions between two parties and then to instruct another institution to adjust the two parties' accounts accordingly at the end of the day. It's simple enough to imagine carrying out this process using pencil and paper to add up the transactions and a phone to communicate the account adjustment, but Alice's patents claim any computer implementation of this process. That means Alice has a monopoly on any software or hardware that performs this way of using a third party to address settlement risk, even when Alice has not created the programming code or designed the computer that has this capability.
The district court invalidated Alice's patents under Section 101 of the Patent Act, concluding that Alice is seeking to patent the abstract idea of escrow. The court found that using a third party to guarantee a transaction is a basic business concept that cannot be monopolized. The fact that this was done through a computer did not give rise to an invention, because Alice did not want to patent specific software program or hardware, but any and all software and hardware that could execute the method.
When the case reached the Federal Circuit, the ten judges were split, issuing six separate opinions. The rift within the Federal Circuit is deeply problematic, as the court decides all patent appeals from across the country. Continued confusion at the Federal Circuit about whether an abstract idea can be patented will result in a plethora of patents that impede companies, researchers, and others from using fundamental intellectual concepts to create new products and services.
Today, the ACLU filed an amicus brief in Alice Corp. arguing that the prohibition on patenting abstract ideas must be enforced, because it is compelled by the Constitution. The Patent Office and courts generally have not addressed the effect of the Constitution on patent regulation. But the government's authority to issue patents, like all government action, is subject to constitutional limits. Copyright law has integrated First Amendment protections in several ways – for example, by distinguishing between ideas and expression. Disallowing patents on abstract ideas plays the same role, by protecting freedom of thought as guaranteed under the First Amendment. Because Alice's patents claim an abstract intellectual concept, they constrain and control how others can think about and build on that concept – including those developing new software. This is particularly troubling because programming code can itself be speech deserving of protection under the First Amendment.
The barriers to innovation presented by this type of patent fly in the face of the constitutional mandate, found in Article I, requiring patents to "promote the progress of science." That's why many of the major tech companies – including Google, Dell, Facebook, and Twitter – filed amicus briefs in the Federal Circuit arguing that Alice's patents, and others like them, stand in the way of advancement in the high-tech sector.
Patents can serve an important role as incentives for invention. But the government cannot use patent law to grant monopolies on abstract knowledge, thought, and speech without violating the Constitution. If including computer implementation in a patent automatically turns an abstract idea into an invention, then almost any idea that can be expressed in programming code could be patented and controlled. The Constitution does not allow that kind of intrusion on freedom of thought.
By Lee Rowland, Staff Attorney, ACLU Speech, Privacy & Technology Project
It's likely you haven't escaped the roiling controversy generated by the film The Innocence of Muslims. This "film" has alternately been described as: a deliberate provocation of Muslims, a launching point for a conversation about free speech, a trigger for the tragic attack on our Benghazi consulate, and a comically bad example of post-production dubbing. Whatever your own thoughts on the film, it's undeniable that The Innocence of Muslims has given rise to passionate and divergent opinions on censorship, religion, and politics. It's been downloaded and viewed countless times. It's been named and featured on countless blogs and newscasts about religious freedom, free speech, and Benghazi.
To censor this film now would be as tough and meaningless as getting a feral cat back into a bag. But that's precisely where the Ninth Circuit federal appeals court tried to stuff it last week – and we're just now finding out about it.
An actress in the film, Cindy Lee Garcia, filed a lawsuit in federal court, arguing that she had been hoodwinked. Garcia claims that she agreed to act in one film, and her performance was overdubbed and popped into another: The Innocence of Muslims. She filed a copyright claim against the filmmakers, arguing that they used her performance without permission. And, she argued, the controversial nature of the film made her not just an unwitting political celebrity, but also the target of death threats. As the always-entertaining (even if here, incorrect) Chief Judge Alex Kozinski wrote in the opinion: "While answering a casting call for a low-budget amateur film doesn't often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa."
Fair enough. I don't doubt that being the target of religious outrage has been a living hell for Garcia. I don't doubt that the filmmakers pulled a fast one on her in order to make a movie they knew would cause, to put it mildly, a hullabaloo. But Garcia didn't stop with suing the producers, or seeking damages for their bait-and-switch. She claimed that she had a copyright in her performance, and asked the court to take all copies of the entire film off of the internet. She also sued Google and YouTube, just for hosting the video. It is an astounding and unprecedented request for an actress to seek the censorship of an entire film because she is briefly featured in it.
Bizarrely, the Ninth Circuit panel voted 2-1 to rebag the cat. The order says that "Google, Inc. shall take down all copies of 'Innocence of Muslims' from YouTube.com and from any other platforms under Google's control, and take all reasonable steps to prevent further uploads of 'Innocence of Muslims' to those platforms."
This order was filed February 19th – but nobody knew about it until today. That's because the court also entered a gag order preventing Google from telling anyone about this opinion until yesterday. The court explained that the gag order was put in place "to prevent a rush to copy and proliferate the film before Google can comply with the order." Apparently the Ninth Circuit is well familiar with the Streisand Effect. As of today, if you google the film and pull up the first YouTube link, the sad face of the anthropomorphized YouTube screen frowns at you and states, "This content is not available on this country domain due to a legal complaint." Those are words that should make us all frown.
However painful this experience has been for Garcia, the solution cannot be to censor all access to a movie that's at the heart of global debate about policy and politics. Any court order issued in the middle of a lawsuit (called a "preliminary injunction") must be in the public interest. And the protections of the First Amendment are, unquestionably, of the highest public interest. They include the right to see, hear, access, and share information. Yet, those considerations are shamefully absent from the court's analysis, which credits only the possibility of future harm to Garcia, based on the past actions of nutcases who threatened her after the movie was released.
We have a term for censoring speech because others might react badly to it—it's called a heckler's veto. And it's prohibited under our Constitution. It's the reason we don't prohibit controversial speakers like the KKK from marching down public streets out of concern that bystanders will react violently. Under our Constitution, we don't allow the government to censor speech on the theory it might cause someone else to misbehave. Our Constitution—and common sense—tell us to target the threats and the violence, rather than the protected speech.
Only two of the three judges voted for the misguided takedown order—the third, Judge Smith, balanced the harms differently, and noted that taking down the film was a heavy-handed and unprecedented move by the court. Let's hope the case gets heard by the full Ninth Circuit court, and that they hear the clarion call of Judge Smith's wise words.
By Chris Calabrese, Legislative Counsel, ACLU Washington Legislative Office
My colleague Jay Stanley just wrote about an invasive new police tactic employed by the Chicago Police Department. Using software created by an engineer at the Illinois Institute of Technology, the city developed a “’heat list’ — an index of the roughly 400 people in the city of Chicago supposedly most likely to be involved in violent crime.” The criteria for placement on the list are secret but reportedly go beyond indicators like criminal conviction, and raise real questions about racial bias in the selection process.
The results of placement can be very invasive. At least one person reported that a Chicago police commander showed up at his door to let him know the police would be watching him. He hadn’t committed a crime or even recently interacted with police.
Is this type of automated profiling a privacy problem or a civil rights problem? It’s both. When personal information is used to make secret determinations, that’s a violation of privacy. When there is significant potential for racial discrimination and police abuse, that’s a civil rights problem.
The Chicago list is just the tip of an iceberg of dangerous ways that “big data” is being used. A Senate Commerce Committee report recently described marketers’ use of lists based on racial and other characteristics to identify “the most and least desirable consumers.” The government E-Verify database, which many employers check to determine immigration status, has a persistent bias that causes legal immigrants to be wrongly identified as ineligible to work. Police too frequently spy on innocent people who pray at mosques.
All of this points to a growing need to consider how privacy and civil rights intersect. As one memorable article recently noted, often the best way to predict the future of surveillance is to ask poor communities what they are enduring right now. That’s why the ACLU has joined together with leading civil rights and media justice groups to endorse “Civil Rights Principles for the Era of Big Data.” These principles aim to shape the intellectual debate around privacy, big data, and civil rights, and to guide our own work.
Some of the key principles include:
- Stopping high-tech profiling. For example when the FBI engages in detailed mapping of racial and ethnic communities across the country, we need to address the profound privacy and civil rights implications of this invasion.
- Preserving constitutional principles in new technology. Legal protections like search warrants are often most important when there is a danger of racial bias, or when communities lack the money to hire lawyers to protect their rights. On a practical level that means making sure that technology upgrades come with legal upgrades as well.
- Enhancing individual control of personal information. Traditional lenders are forbidden from using their knowledge of consumers’ finances (like the fact that they are behind on their mortgage payments) for marketing. New data collection techniques allow marketers to skirt these rules.
Recognizing the overlap between privacy and civil rights enriches the work in both areas. For privacy advocates it resoundingly rebuts the canard that privacy violations don’t harm anyone, or that if you have nothing to hide you have nothing to worry about. For civil rights leaders, it helps identify the pernicious and subtle discrimination that can pervade new systems, and helps arm them with the knowledge to battle it.
New technologies give rise to new conveniences and opportunities, but also to new harms. And we too must evolve to create new efforts to tackle them.
Please read the full statement of principles here.
For more examples of the types of harms the principles aim to address, see here.
By Chris Conley, Technology and Civil Liberties Fellow, ACLU of Northern California
Imagine bringing a date home for dinner. You put the laptop away and mute your phone. You prepare a gourmet home-cooked meal for two, queue up a selection of romantic songs and pick out a movie to watch after dinner. As the evening winds down, your heart races a bit as you go in for a kiss and wonder how your night will end.
Now imagine that someone is monitoring each and every event of your evening. Oh, don't worry, they're not actually watching you or listening in on your conversation. They just know who you emailed or called just before you put your computer away. They know what you bought for dinner and how you prepared it. They know who came over, where he or she came from and how long he or she stayed. They know what time you started the movie and which songs you listened to. They even know what time you turned off the lights — and whether or not the music was still playing when you did.
And they know all of this without ever getting a search warrant.
Unfortunately, this scenario is all too real. Government agencies from the NSA to local law enforcement have taken advantage of weak protections for "metadata" — including records about your phone calls, emails, purchases, location and more — to build huge databases about ordinary Americans. In thousands of cases, this information has been inappropriately accessed, potentially exposing a vast array of information about individuals: their attendance at a gay rights rally or addiction support group, their purchase of a home pregnancy test or a dating service subscription, or their calls to a suicide hotline or a job recruiter.
In response, the ACLU of California today released "Metadata: Piecing Together a Privacy Solution," a new policy paper that offers a way forward. It explains why lawmakers might have originally decided to give metadata less protection than content — and why the reasons for doing so are no longer valid in the modern world. It highlights the sensitive information that metadata can expose and provides evidence of actual abuses that have occurred in past years. Drawing from recent court cases, state laws, and analysis, it provides a simple roadmap for courts and lawmakers looking to enhance protections for metadata and ensure that our right to privacy remains alive and well in the modern era. Among other things, it is clear that we must:
- Protect all sensitive information, whether it is "content" or "metadata"
- Protect sensitive information held by third parties
- Protect sensitive information derived by aggregating and analyzing other data
- Provide law enforcement and other government agencies with clear rules and guidance
- Ensure that any collection or use of metadata is transparent and subject to independent oversight
The distinction between content (which receives stronger protection) and metadata might have made sense decades ago when technology to collect and analyze data was virtually nonexistent. But in the modern world, non-content does not mean non-sensitive. Indeed, the explosion of data mining, targeted advertising and other new technologies is driven by the realization that companies and the government can learn a great deal about an individual simply be recording their actions. We hope this paper will help make sure that all sensitive information receives the protection it deserves.