How Riley v. California Impacts Texas

July 11th, 2014 No Comments   Posted in Privacy and Technology
by Matt Simpson, Policy Strategist, ACLU of Texas

In Riley v. California, the U.S. Supreme Court held that the police generally may not, without a warrant, search digital information on a cell phone seized following arrest. The Court reasoned that cell phones are different from other kinds of things people carry on their persons. Your cell phone is like a detailed diary that can reveal highly personal information going back years. It makes sense, that the Court concluded, to give cell phones extra protection by requiring a warrant. The case got us thinking about privacy protections generally. So what’s the law here in Texas?

Last legislative session in Texas, over 100 members of the House signed on as co-authors or co-sponsors to legislation requiring law enforcement officers to get a search warrant prior to accessing location data from your cell phone company. Currently, law enforcement requests this personal information via a secret subpoena process. Location data can reveal what church you attend, what political and social groups you belong to, if you are married or having an affair, what bars you frequent, and many other personal details. In many ways, Texas legislators were grappling with the same issues the Supreme Court dealt with in Riley. Because so much data is collected and stored by wireless devices and other electronics, our policymakers are faced with important questions about how to update the law to protect our privacy and 4th amendment rights. Here are the 4 things you should know about electronic privacy in Texas:

1. Texas has not yet passed protections for your cell phone location data.

The bill from last session stalled at the end of session.

2. However, our state passed important protections for your email in an amendment to another bill.

The amendment requires a search warrant for government access to
stored communications.

3. In the upcoming legislative session, the ACLU of Texas as part of the Texas Electronic Privacy Coalition will again advocate for warrant protections for your location information.

We will also advocate for regulation of automatic license plate readers and Stingray devices that collect cell phone location data via a dummy cell tower.

4. We can have Texas solutions to privacy problems instead of waiting for the federal government to act.

When it comes to updating privacy protections, we have every opportunity to be ahead of the game. Important updates to state law can work in concert with today’s Supreme Court opinion and federal efforts to curtail NSA spying via the USA Freedom Act. Texans want a government that does not spy on it’s residents. Let’s lead the way in updating our laws to ensure our privacy is protected and the 4th amendment remains a living, breathing protection for us all.

How the NSA Got Away with Spying on American–Muslim Civil Rights Activists

July 11th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Alex Abdo, Staff Attorney, ACLU National Security Project

An article published by The Intercept this week revealed that the government has conducted surveillance of several prominent American Muslims—including a former official in the Department of Homeland Security, a professor at Rutgers University, and the executive director of the largest Muslim civil rights organization in the country.

The surveillance—apparently conducted under the Foreign Intelligence Surveillance Act (FISA)—is troubling for many reasons. It is also a reminder that even targeted surveillance authorities like FISA can be abused.

(Read our first reaction to The Intercept story here.)

Ordinarily, we rely upon checks and balances to prevent lawful powers from being put to illegal ends. But with surveillance conducted in the name of national security, we have for far too long given the government a free pass on the most important of safeguards: the right to “notice”—which entitles surveillance victims inside the country to learn, at some point, about the government’s monitoring of them.

Without notice, the government’s surveillance activities rarely get challenged, and without the prospect of pushback, those powers are all too likely to be misused.

Imagine if the NSA had known it would have to at some point notify the head of a large civil rights organization that the government had monitored his emails. Would the NSA have initiated the surveillance?

The Foreign Intelligence Surveillance Act

Typically, when the government wants to monitor the communications of someone inside the United States, it must obtain a warrant from a court based upon probable cause to believe that the individual has committed or is about to commit a crime.

What’s more, if your communications are monitored in this way, you are generally entitled to learn about it—if not right away, then at least once the need for secrecy has subsided. In the language of the law, you are entitled to “notice.” This is generally true even if you are not the intended target.

In the 1970s, however, Congress enacted FISA, which carved out an exception to both of these constitutional rules for cases in which the government is trying to gather “foreign intelligence information.”

FISA permits the government to obtain a surveillance order from a secretive court—known as the Foreign Intelligence Surveillance Court (FISC)—if it can demonstrate probable cause to believe that its target is “an agent of a foreign power.”

The definition of “an agent of a foreign power” is somewhat complicated, and it is different for U.S. citizens or legal residents than it is for foreigners abroad. Roughly speaking, though, it refers to individuals working at the behest of foreign powers, which are broadly defined to include foreign governments, terrorist groups, and “foreign-based political organizations.” A foreign-based political organization could be anything from the Muslim Brotherhood to perhaps even Amnesty International.

For U.S. citizens or residents to qualify as agents of a foreign power, there must be some tie to criminal activity, but that requirement is lower than probable cause, which is the traditional standard the government must satisfy before spying on Americans.

Why notice matters

As mentioned above, FISA surveillance differs from traditional law-enforcement wiretaps in another significant way: The government does not have to give you notice of FISA surveillance unless it intends to use the fruits of the surveillance against you.

There is a long tradition in our constitutional system of requiring the government to notify you when it has searched your house or wiretapped your phone calls. Notice can sometimes be delayed—to protect an ongoing investigation, for example—but it has always been required at some point, because notice is essential to accountability.

If the government illegally monitors your calls, there must be a mechanism for accountability. Otherwise the government has little incentive to resist its impulse—understandable as it may be—to do everything possible to advance its investigations. It will have little incentive to avoid the kinds of abuses that were common in the 1960s and 1970s, including the monitoring of civil rights groups and activists for political purposes.

How can we trust that the surveillance was proper if the victim of it never has a chance to challenge the government’s case? If we have learned anything from the Snowden files, it is that secret rulings on our constitutional rights generally do not produce results we should trust.

Meaningful transparency is essential to our system of checks and balances. And when it comes to surveillance inside the country, one of the most important forms of transparency is notice—so that those affected by government overreach can push back when necessary.

N.B.: The government apparently claims that it did not have a FISA order targeting one of the men profiled in The Intercept’s story. It is possible, for example, that the individual was targeted without a warrant under the Bush Administration’s warrantless wiretapping programs. Even if so, the rules concerning notice would have been the same as under FISA. That is, no notice would have been provided.

An FBI Counterterrorism Agent Tracked Me Down Because I Took a Picture of This

July 11th, 2014 No Comments   Posted in ACLU Nationwide
By James Prigoff

This is a statement from one of the plaintiffs speaking at Thursday's press conference announcing the ACLU's lawsuit challenging the government's controversial Suspicious Activity Reporting program.

Good morning. My name is James Prigoff. I am 86 years old and a retired senior corporate executive, having been president of a Levi Strauss division and previously the senior vice president of the Sara Lee Corporation in Chicago. I am also a professional photographer – in fact, I have been a photographer for most of my life. My specialty is photographing murals, graffiti art, and other community public art. I am the co-author of three books utilizing my photographs, one of which, Spraycan Art, has sold over 200,000 copies. My photographs appear in countless other publications and my photography has been exhibited at the Smithsonian in Washington and in many other galleries. I have lectured on photography and public art in museums, universities, and venues worldwide.

I have never had an experience like I had when attempting to photograph the "Rainbow Swash" outside Boston in 2004. Let me explain.

The Rainbow Swash is an iconic piece of public art near Boston painted on the circumference of a 140-foot high liquefied natural gas storage tank in 1971 and repainted in 1992 at an adjacent site. It is actually one of the largest copyrighted pieces of art in the world. The original artist was Korita Kent.

I went to Dorchester, Mass., to photograph it, but before I could take a picture, I was confronted by two security guards who came through their gate and told me I could not because the tank was on private property. I pointed out that I, being well outside the fenced area, was not on private property – but they insisted I leave. If one goes to Wikipedia there are number of excellent close-up shots for the entire world to see.

A few months later, I found a business card on the front door of my home in Sacramento from Agent A. Ayaz of the Joint Terrorism Task Force, asking me to call him. One of my neighbors, an elderly woman, told me that two men wearing suits had come to her door to ask her about me, her neighbor.

When I called Agent Ayaz, he asked if I had been in Boston recently. At that moment I realized that the security guards at the Rainbow Swash site must have taken down the rental car license plate number and reported me to a law enforcement agency. I never gave the guards any information about myself, so I must have been traced across country via my rental car record.

So, consider this: A professional photographer taking a photo of a well-known Boston landmark is now considered to be engaged in suspicious terrorist activity?

I lived through the McCarthy era, so I know how false accusations, surveillance, and keeping files on innocent people can destroy their careers and lives. I am deeply troubled that the SAR program may be recreating that same climate of false accusation and fear today.

Photography is an important part of my life, and I plan to keep photographing public art and public places that contain WPA murals and other architectural sites – as I have been doing for 69 years. Why have my artistic pursuits landed me in a national database potentially linking me to "terrorist" activities? There is no reason for it. This program must be stopped.

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You Heard the Court, Gov. Brewer: Give the DREAMers Their Licenses

July 11th, 2014 No Comments   Posted in ACLU Nationwide
By Orion Danjuma, Skadden Fellow

Until now, thousands of young Arizonans have been prevented from getting jobs, going to school, or even attending to sick children – all thanks to Gov. Jan Brewer's ban on granting them driver's licenses.

That situation is set to change soon. A federal appeals court issued a stinging rebuke to the governor in a decision this week. According to the judges, denying these young immigrants the ability to drive harms them irreparably and likely violates their constitutional rights.

The suit was brought by the ACLU and other civil rights groups on behalf of DREAMers – immigrants who have grown up in the United States without documentation and consider this country their home. In 2012, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program, which grants DREAMers federal permission to work and to remain in the country. In keeping with her anti-immigrant stance, Gov. Brewer lashed out immediately. She issued an executive order banning Arizona's DACA recipients from getting driver's licenses and called them "illegal people" who shouldn't qualify for a state-issued ID.

One of those people is 24-year-old Korina Iribe, who came to this country at age five. Her DACA status has finally enabled her to afford community college. But she says that without a driver's license she can't rent an apartment, apply for a bank account, or even prove her identity. "To me Governor Brewer's order was an attempt to dehumanize and strip DREAMers of our identities," Korina says. "She wanted us to be treated as second class citizens, and she didn't care at what expense."

In a state where the overwhelming majority of residents drive and only two percent take public transportation, many young Arizonans have little choice but to drive illegally.

Take the case of one of the people in the lawsuit — a single mother who has a five-year-old son with special needs. In order to provide the specialized care he needs, she drives without a license to get him across town to school and to medical appointments. Every time she does so, she endures the agonizing fear that they will be stopped by police and her car impounded. She has a temporary job without health benefits. But when her supervisors recommended her for a permanent position with full benefits, she couldn't apply because it required a driver's license.

Until Arizona follows the court's order, it remains the only state along with Nebraska that denies driver's licenses to DACA recipients. The federal government, the courts, and 48 other states all agree: DACA grantees are legally present in the United States and should be able to work and to provide for their families.

Meanwhile, DREAMers like Korina Iribe are already celebrating. "I am more than ecstatic," she says. "I will finally be able to fill out applications that ask for my Arizona driver's license number, and most importantly, I will be recognized as an Arizonan for the first time."

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I Was 16 and in Solitary Before I Ever Even Went to Trial

July 10th, 2014 No Comments   Posted in ACLU Nationwide
By Reginald Dwayne Betts, Legal Intern, ACLU

February is cold in Northern Virginia. It's even colder when you're in a cell alone, without a mattress, a blanket, a pillow, or a sheet.

When I walked into that cell in the basement of the Fairfax County Jail, my hands cuffed behind my back and stomach grumbling from a half a day without food, I was almost relieved. Happy to be soon free from cuffs, to be close to being processed, and to be moved to wherever I'd suffer next. What I didn't know is that once the deputy uncuffed me and closed the small opening that I'd slipped my hands through, no one would talk to me again for days.

This was February 21, 1997. Seventeen years ago and still the date, the time of day I arrived, and the exact location of the cell in solitary confinement are permanent fixtures in my memory. I was sixteen years old and being held in pre-trial detention on carjacking and robbery charges.

After spending three months in juvenile facilities, I had grown strangely familiar with being in a cell. But nothing prepares you for solitary confinement.

I spent ten days in that cell. I learned to pace, seven steps back and forth, again and again. I stared at the wall, sought out figures in the cracks. Across from me was the padded room where they sent prisoners who threw things on the deputies. The kid in the cell beside me, he too only sixteen or seventeen years old, told me about all of his fears of a straightjacket. Those days felt like a straightjacket to me.

Eight of those days were without a shower or any of the other small allowances that helped men from freezing in the night. I wore the same clothes and slept on a concrete slab that was covered in phlegm. For a time I told myself that the ordeal couldn't be real. I wondered if one of the punishments for guilt was solitary. How would I know otherwise? I hadn't been to court, hadn't seen my lawyer in a few weeks, had yet to have a trial – and yet, without explanation I was in solitary confinement.

After those first ten days in solitary, I would go on to plead guilty to carjacking and robbery. Sentenced to eight years in prison, the better part of my youth was spent confined. And during those eight years, I spent a year and a half doing various short stints in solitary confinement. I watched grown men crack under the pressure of a solitary cell. I watched men beg for relief, strapped to a bed by their arms and legs.

Seventeen years later, I find that I'm again constantly thinking about solitary confinement. The horror stories that drive the public conversation about solitary are not stories to me, but memories. It's unsettling because as much as I know the truth of what the noise of silence can do to a person's mind, I know the dangers for juveniles are worse.

It's good to see this issue getting more press. And it's encouraging to see some states slowly making changes. But it's still unacceptable that every day children are held in solitary confinement for upwards of 22 hours — in adult prisons and jails and juvenile facilities alike. It's unacceptable that we still have a practice on the books that devastates children's minds. We know that solitary confinement does not reduce violence and likely increases recidivism, and we must end this child abuse nationwide.

To help address the widespread issue of solitary confinement and isolation in juvenile facilities, check out the ACLU's new advocacy toolkit, "Ending the Solitary Confinement of Youth in Juvenile Detention and Correctional Facilities."

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Doing Right by the Unaccompanied Children on Our Border

July 10th, 2014 No Comments   Posted in ACLU Nationwide
By Georgeanne M. Usova, Washington Legislative Office

There are children in cages along the U.S.-Mexico border right now. And more are showing up every day.

Three-quarters of these kids ­– some as young as four – are from Guatemala, El Salvador, and the "murder capital" of the world, Honduras. Many are fleeing rampant drug, gang, and sexual violence in these countries, risking a long and extremely dangerous journey for a chance at a future. Some don't make it. Others fall into the hands of traffickers, where they can be robbed, raped, kidnapped, abused, or abandoned.

Those who do survive the trip are arriving in greater numbers than ever before – as many as 90,000 are expected by the end of this year – and there's no question that this crisis is straining resources in the United States, as federal agencies scramble to keep up with the influx in a system equipped for far fewer children.

Emergency funds are needed as quickly as possible to ensure that these vulnerable children are appropriately housed, clothed, fed, and provided with basic necessities. The immigration court system is also desperately in need of resources, in order to provide meaningful court hearings for these children.

Earlier this week, the administration unveiled a wide-ranging emergency supplemental appropriations request, which would provide $3.7 billion across multiple federal agencies to address the crisis. Here's a quick look at what's in it:

  • Department of Health and Human Services (HHS): At $1.8 billion, funding for HHS is the largest piece of the request, including resources for the custody, screening, and placement of kids after they are transferred out of CBP custody. This funding is absolutely necessary to provide emergency shelter and care. It's also long overdue, considering that HHS has been working with insufficient resources for years, even though CBP began reporting increased apprehensions of unaccompanied children back in 2011. Finally, Congress should ensure that adequate funding will be available to maintain ongoing refugee resettlement services unrelated to this crisis, and that any funds that have already been diverted from other refugee work will be restored.
  • Department of Justice (DOJ): The administration requests $62.9 million for DOJ to meet the legal needs associated with the crisis, including $45.4 million to hire 40 additional immigration judge teams, $2.5 million to expand the legal orientation program, and $15 million to provide attorneys to children facing immigration court alone. While this would be a welcome increase, it doesn't come close to meeting the demands of the perennially underfunded immigration court system, which already faces an enormous nationwide backlog of over 366,000 cases. It is also seriously disproportionate to the major increases requested for Department of Homeland Security (DHS), continuing a destructive trend of throwing resources at enforcement without matching resources for adjudication, which only perpetuates the bottleneck in immigration courts and makes it more difficult for the government to fulfill its obligation to provide every child with a meaningful hearing.
  • Immigration and Customs Enforcement (ICE): The administration's request of an additional $1.1 billion for ICE includes $879 million to detain, prosecute, and deport migrant parents as well as to expand alternatives to detention. Much of that amount could be used to increase family detention exponentially – from less than 100 beds currently to many thousands. Not only is detention an ineffective deterrent for people who are fleeing desperate situations, it is also inappropriate for families because of ICE's track record for abuses and inhumane conditions. Although the request mentions the expansion of important alternatives to detention for parents, it fails to specify how much funding would actually be directed towards those efforts.
  • U.S. Customs and Border Protection (CBP): The administration requests an additional $393 million for CBP to care for children until they are transferred to HHS custody. But it also covers staffing costs for Border Patrol agents, which is unnecessary considering that there are already more agents than ever before and overall apprehensions, despite this crisis, are still near historic lows. Additionally, the request includes $39.4 million for additional drone surveillance. This makes little sense, given that children and families are not attempting to cross the border undetected. In fact, many are turning themselves in or seeking out agents for help. Migrants are already being apprehended, so militarizing the border with additional surveillance mechanisms won't address the problem at hand. Congress should question whether these resources could be much better spent elsewhere.

Additionally, President Obama's letter accompanying the request signals that he may separately ask Congress to change the law so that children can be deported more quickly and with fewer procedural protections, as he signaled in a letter to Congress last week. Some Republicans are already calling for such a change as a condition of passing emergency funding. Under this scenario, rather than being transferred to HHS for screening by professionals to determine if they have been victims of trafficking or have claims to asylum, children could be subject to immediate deportation at the discretion of Border Patrol agents with no training in child welfare.

That would be a very bad thing, not just for the kids who would be sent back to the dangerous conditions they risked their lives to escape, but for the nation and what it says about how we treat the most vulnerable among us.

As lawmakers consider a path forward, they must ensure that supplemental funding first and foremost addresses immediate humanitarian needs. They must then also reject any proposal that would unnecessarily expand the immigration enforcement regime or weaken existing legal protections for children.

It's what these kids deserve, and it would reflect well on us as a nation.

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Suing to Defend Americans’ Right to Take Pictures in Public

July 10th, 2014 No Comments   Posted in ACLU Nationwide
By Julia Harumi Mass, Staff Attorney, ACLU of Northern California

What does an 86-year-old art photographer have in common with a young man with a video game habit?

Not just a proclivity for perfectly innocuous hobbies, unfortunately. These days, engaging in either activity can get the FBI on your case.

Today, the ACLU and our partners at Advancing Justice–Asian Law Caucus and Bingham McCutchen are taking the federal government to court over a surveillance program that targets people even if they are engaging in entirely innocent and constitutionally protected activity, and encourages religious profiling. As if that weren’t enough, the Suspicious Activity Reporting (SAR) program also violates the government’s own rules for the collection of criminal intelligence.

James Prigoff is one of our clients. He is 86 years old, and a renowned photographer of public art. He has lectured at universities and had his work exhibited at museums around the world. In 2004, he was stopped by security guards in Boston while attempting to take photos of a famous piece of public art called the Rainbow Swash, which is painted on a natural gas storage tank. Several months later, the FBI tracked him down at his house in Sacramento to question him about his activities in Boston.

Tariq Razak, a young scientist and Pakistani-American, is another plaintiff in our case. He became the subject of a SAR after a visit to a train depot in Santa Ana, California, where he had an appointment with the county employment resource center. He walked around the depot looking for the resource center, and his mother, who was wearing a hijab, accompanied him. He later discovered that this conduct led to a SAR describing him as “a male of Middle Eastern descent” who was suspicious because he was “constantly surveying all areas of the facility” and because he met up with a “female in a white burka head dress.”

Our other clients were also unfairly targeted, falling under government scrutiny for activities ranging from buying computers to playing video games. Several of them were profiled due to their perceived religious beliefs.

Click here for more on our plaintiffs.

These “suspicious activities” may be absurd, but there’s nothing funny about the program. The Department of Justice (DOJ) and the Information Sharing Environment, a post-9/11 agency tasked with coordinating national security intelligence-sharing, have adopted lax standards for what constitutes “suspicious activity.” These standards violate a DOJ regulation from 1978 that prohibits law enforcement from sharing “intelligence” about individuals unless the information is supported by reasonable suspicion of criminal activity. The 1978 regulation was adopted in the wake of prior domestic surveillance abuses.

Predictably, eschewing those protections has turned back the clock. The government is ignoring sensible limits on criminal intelligence collection and actively encouraging not just law enforcement, but also private security guards, shopkeepers, hotel owners, and even neighbors, to collect and share information about innocent conduct.

For example:

  • Hotels are advised to be on the lookout for guests who "request specific room assignments or locations" or use "payphones for outgoing calls."
  • Rental car companies are instructed that "providing multiple names" on rental paperwork is to be "considered suspicious."
  • Hobby shops should be wary of customers with an "unusual interest" in remote-controlled aircraft and those who pay in cash.
  • The general public is cautioned to report "unusual activity," including "people acting suspiciously" and "people in places where they do not belong."

If “acting suspiciously” or being somewhere someone thinks you don’t “belong” is enough to put people into federal counter-terrorism databases, it’s no wonder the databases are full of irrelevant information and reports targeting Muslims, South Asians, and Arab Americans. As you may remember from last year, actual SARs we obtained through Public Records Act requests include reports with subjects like “Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water.” It’s also no wonder law enforcement experts criticize the SAR program for “flooding” law enforcement with “white noise.”

Today our clients are challenging a program through which innocuous and even constitutionally protected activity is being reported as “suspicious” and leading to federal law enforcement scrutiny.  This program not only violates federal privacy protections for “intelligence” sharing. It encourages a culture of fear and distrust, undermining our freedom with no known benefit to our safety.

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Big Data and Big Money

July 10th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

Out for a run the other day along a stretch on a busy road, I saw a "for sale" sign on a house. That got me to wondering about the downsides of living on a busy road, and further wondering: do people who live on busy roads stay in their houses for shorter periods of time than people on quiet streets? Is real estate turnover higher on busy roads?

That should be an easy question to answer in today's big data world. You would just get a computer to sort houses by the amount of traffic on the street on which they sit (Google maps surely has that data), and then correlate it to the average time between sales of each house.

But then it occurred to me: who would actually perform the analysis to answer that question?

After all, if the answer to my question was yes, the real estate industry probably wouldn't particularly want that fact known, so it's not in their interest to explore that question. And I'm not sure who else would care to look into it.

This line of thinking is just a reminder of an important point: the exploration of data is not a neutral or unguided process. There's a lot of talk about big data these days and its potential to help humanity, but the seeking of insight and meaning and advantage from large-scale analytics will be directed at answers to the questions certain parties have an interest in asking. Where an especially interesting data set is open, we can imagine that many people will explore it, the “million eyeballs” principle will hold, and that the data space will be isometrically scrutinized in every possible way. That may be true for some data sets, but others may only be investigated by those with a particular interest in looking for something—and perhaps only by those with the means of hiring data scientists to look for answers. And in many other cases, where data is proprietary, the parties that have access to or control over the data will be the only ones asking the questions. In some cases, no doubt, even where questions are asked, the answers will never see the light of day if those who paid for the research don’t like what they get.

This dynamic will have implications not only for privacy, but for how big data is used across the board.

Let me be clear that I know little about the real estate industry, and my assumptions may be completely wrong in the specific line of thinking above that sparked this post. But I think the larger point is valid.

Others have sought to puncture utopian views of how big data will provide new knowledge and insight. In this interesting piece, for example, Tim Harford cites problems including the difference between causation and correlation and the fact that correlations can shift, sample bias in the data, high levels of false positives, and something called the “multiple-comparisons problem,” which essentially says that if you explore a large enough data set looking for enough correlations, you will eventually find one that is a spurious statistical quirk. I think what we might call “differential exploration” should be on any such list.

In some ways the problem I’m thinking about resembles problems we already see in other areas of science. Some have complained, for example, that our for-profit pharmaceutical industry tends to research medical conditions not in proportion to their importance, but instead according to their profitability. That can mean they target their research budgets towards treatments for minor but lucrative cosmetic problems rather than devastating diseases. It’s likely that the mining of big data sets for insights, like medical research, will not be carried out evenly, but will proceed on some fronts much more vigorously than others, and not necessarily according to criteria that are best for everyone.

What’s the Government Doing Targeting Civil Rights Leaders?

July 9th, 2014 No Comments   Posted in ACLU Nationwide
By Laura W. Murphy, Director, ACLU Washington Legislative Office

The NSA and FBI are targeting prominent American Muslims, including civil rights activists, academics, and a former government official, we learned in a troubling report released last night.

Their emails have been stored, their movements have been monitored, and their relationships have been tracked. No detail has proved too remote for the prying eyes of the NSA and FBI.

None have been charged with any criminal or terrorist activity, and because of the excessive secrecy of the government’s surveillance laws, the government doesn’t have to explain itself. Anyone who reads the report can’t help but worry that the government is engaging in highly invasive and personal surveillance based on activism, religion, and political belief.

The story raises profound questions about the surveillance authorities of the government, including its ability to selectively target a political, ethnic, or religious group. In this case, it’s American Muslims.  But we already know that the FBI is engaging in a much more expansive racial and ethnic mapping program that should worry us all.

We’ve been here before. In the 1960s and 70s, civil rights organizations, activists, and minority communities were surveilled and monitored simply because their views differed from the government’s. Constitutionally protected activity had become a shibboleth. What’s going on today is reminiscent of that time.

Innocent American Muslims and South Asian Americans have been repeatedly scrutinized and stigmatized ever since the September 11, 2001 terrorist attack. And since that time, racial profiling at the borders, the airports and in the criminal justice system has gotten worse for Latinos, Asians, African Americans, and other people of color.

The Council for American Islamic Relations, for example, is the largest Muslim civil rights organization in the United States. Why is Nihad Awad, their executive director who was profiled in the report, being monitored and tracked?

Discriminatory surveillance chills free speech, the right to associate freely, and religious expression.

An ACLU-led coalition has sent a letter to the Obama Administration asking for a full accounting of the practices revealed in the report. The letter also highlights the need to strengthen the Department of Justice’s Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, so that profiling on the basis of religion, sexual orientation, gender identity, and national origin is conclusively prohibited.

The letter explains:

In an earlier era, during the 1960s and 1970s, civil rights leaders, activists and members of minority communities were subjected to unlawful and abusive government surveillance based not on what they had done, but what they believed and who they were. Despite reform efforts, abusive practices continue today. Federal, state, and local law enforcement are targeting entire communities—particularly American Muslims—for secret surveillance based on their race, religion, ethnicity or national origin.

The First Look report is troubling because it arises in this broader context of abuse. Documents obtained through an American Civil Liberties Union Freedom of Information Act request show that the FBI has been mapping a broad spectrum of communities, including American Muslim communities, the African American community and Latino American communities, without any basis for individualized suspicion. Under the guise of community outreach, the FBI targeted mosques and Muslim community organizations for intelligence gathering. It has pressured law-abiding American Muslims to become informants against their own communities, often in coercive circumstances. It has also stigmatized innocent Muslims by placing them on the No Fly List and other watch lists. In short, the government’s domestic counterterrorism policies treat entire minority communities as suspect, and American Muslims have borne the brunt of government suspicion, stigma and abuse. 

These practices hurt not only American Muslims, but all communities that expect law enforcement to serve and protect America’s diverse population equally, without discrimination. They strike the bedrock of democracy: that no one should grow up fearful of law enforcement, scared to exercise the rights to freedom of speech, association and worship.

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The Hobby Lobby Stages of Grief: Stage 2, Anger

July 9th, 2014 No Comments   Posted in ACLU Nationwide
By Elayne Weiss, Washington Legislative Office

Have you recovered from last week’s brutal Hobby Lobby opinion yet? I haven’t. According to the Kübler-Ross model of grief, I am still only at stage 2: anger.

And you know what? I’m not okay with reaching acceptance.

So what if I’ve become my own version of Howard Beale. You and I both understand why: It’s because we know it's completely unacceptable that, with its decision, the Supreme Court has now sanctioned discrimination against women under the guise of religious liberty.

Thankfully, I’m not the only one who’s still angry.

Lawmakers who expressed their outrage the day of the Hobby Lobby decision have swiftly put their words to action to ensure that women have access to contraception. Today Sen. Patty Murray (D-Wash.) and Sen. Mark Udall (D-Colo.), along with 35 of their colleagues, introduced the Protect Women’s Health from Corporate Interference Act.

The bill aims to bar employers from using their religious beliefs to deny their employees and their dependents coverage for contraception or any other health service guaranteed by federal law. Just in case employers try to wiggle their way out of this requirement, the bill states that federal law, including the Religious Freedom Restoration Act, doesn’t permit employers to refuse to comply. Here’s something else important to stress: This requirement still doesn’t apply to houses of worship and religiously affiliated non-profits.

Get angry – as if you’re not already – and tell Congress to quickly pass the Protect Women’s Health from Corporate Interference Act. Let them know that while we all have the right to our religious beliefs, we don’t have the right to impose those beliefs on others.

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