THE SHADOW OF A DOUBT Circles Liberty’s Torch

November 11th, 2014 No Comments   Posted in ACLU Nationwide
By David Birkin

Today, on Veterans Day, on the 11th day of the 11th month, an aircraft began circling the Statue of Liberty trailing a banner that read “THE SHADOW OF A DOUBT.”

The phrase refers to an unattainable burden of proof. In American courts, juries are asked to convict or acquit on the basis of “reasonable doubt,” since proving a defendant’s guilt beyond the shadow of a doubt is all but impossible. As such, it is a jurisprudential ideal: the highest standard of justice to which a society can strive.

Yet today, in a whole range of cases related to the so-called “War on Terror,” guilt is pronounced on the most meager of circumstantial grounds. Tens of thousands of people have found themselves arbitrarily consigned to the American No Fly List without due process or a meaningful right to appeal. At Guantánamo, a “preponderance of the evidence,” the standard applied in deciding civil disputes over money, is enough to detain a person indefinitely without trial. In the case of “signature” drone strikes, individuals may be targeted for assassination based on ostensibly suspicious patterns of behavior, while a delusive definition of the term combatant counts any male of military age in proximity of an attack, without explicit evidence posthumously proving them innocent.

Such policies upend the presumption of innocence, circumventing international laws governing the treatment of prisoners and the safeguarding of civilians during war.

Veterans Day, or Armistice Day as it was originally named, was first observed on November 11, 1919, commemorating the end of WWI with a moment of silence. Congress later passed a resolution proclaiming “the cessation of the most destructive, sanguinary, and far reaching war in human annals and the resumption by the people of the United States of peaceful relations with other nations,” inviting Americans to fly their flag and observe the date “with appropriate ceremonies.”

This flight was my response to that invitation.

It is part of a project called Severe Clear and follows on from a skywriting performance last Memorial Day weekend for which I had the words “EXISTENCE OR NONEXISTENCE” written above the New York City skyline. The phrase was extracted from a letter sent by the CIA to the ACLU rejecting their Freedom of Information request for documents relating to the government’s covert drone program. The letter stated that the CIA could “neither confirm nor deny the existence or nonexistence” of records responsive to their request. Images of the skywriting spread on social media sites thanks to the number of people who posted images online, and a few days later the CIA officially launched itself into the Twittersphere with the inaugural message, “We can neither confirm nor deny that this is our first tweet.”

My interest in placing these phrases in the sky is to open them up to a wider interpretation by shifting the context in which we encounter them, from a legislative framework to something more ambiguous and resonant. Whereas the law relies on linguistic precision, artists and writers take interest in the slippage that occurs in meaning. It is this slippage that is often exploited for political expediency.

Liberty Enlightening the World, the official title of Frédéric Bartholdi’s colossal statue of the Roman goddess Libertas, was conceived and constructed in the years following the American Civil War, and gifted by France in revolutionary solidarity. Its pedestal was constructed on the star-shaped walls of Fort Hood, a military installation left over from the War of 1812. Clutching a tabula ansata and torch — symbols of freedom and equality under the law — and a broken chain at her feet, the Statue of Liberty was founded, literally and philosophically, on the relics of war.

Following the attacks of 9/11, the island was closed, and for a further eight years access to the statue was suspended. Like many emancipatory emblems at the time, Liberty could only be glimpsed from afar. Over a decade later, the Senate’s heavily redacted torture report is just now due for release, while Edward Snowden’s revelations about bulk surveillance demonstrate the extent to which American ideals have been eroded in the name of national security.

In his ruling on the rights of suspects to challenge their own detention, Supreme Court Justice Anthony Kennedy declared that, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

For a nation born out of armed struggle, which has been at war continuously for over half a century, this fundamental friction between liberty and authority cuts to the core of the rhetoric around what it means to be free.

David Birkin is an artist based between New York and London. He was an ISP fellow at the Whitney Museum of American Art and a graduate of Oxford University and the Slade School of Fine Art. He would like to thank a/political for making this project possible.


British Spying Is Our Problem, Too

November 10th, 2014 No Comments   Posted in ACLU Nationwide
By Alex Sinha, Aryeh Neier Fellow, Human Rights Watch & ACLU

The chilling effect of surveillance may be spreading across the Atlantic.

We learned last week that GCHQ – the U.K. equivalent of the NSA – permits its employees to target the communications of journalists and lawyers. That revelation has serious implications for the work of both groups.

American surveillance is already impacting the work of U.S.-based journalists and lawyers. As the ACLU and Human Rights Watch documented in a recent report, the effects are not pretty. National security and intelligence journalists have been struggling to develop and maintain relationships with increasingly skittish sources, and lawyers are losing the freedom to communicate with clients, co-counsel, and witnesses without exposing confidential information to the government.

We depend on the press to keep us informed, helping ensure the government's accountability to the governed. But when journalists are vulnerable to surveillance, that accountability suffers.

Attorneys are also indispensable, and their right to communicate privately with clients has long been recognized both in domestic and international law. When attorneys can't communicate freely with clients, they can't build trust or develop strategy. That weakens important due process rights and diminishes our confidence in the verdicts issued by our justice system.

Like the United States, the U.K. conducts significant surveillance, including tapping fiber-optic cables to gain access to enormous volumes of Internet traffic. The revelations from last week show not only that the communications of journalists and lawyers get caught up in the U.K.'s dragnet, but also that this may happen by design.

The breadth and poor regulation of the U.K.'s surveillance practices are a problem for everyone – including Americans. Here's why.

The United States has extensive intelligence-sharing arrangements with key allies like the U.K., and through them has access to information that it can't legally collect on its own. Sharing flows both ways, so the U.K. also has unfettered access to much "raw" or unfiltered U.S. surveillance data.

As far as we know, nothing stops the United States from accessing information from GCHQ that is derived from targeting journalists or lawyers. In fact, we've seen this movie before. Last February, we learned that an Australian intelligence agency gave the NSA privileged communications between a U.S.-based law firm and its clients. We'd be foolish to assume anything different happens between the United States and the U.K. – which, like Australia, is one of the NSA's "Five Eyes" surveillance partners.

What happens in Britain reaches us, too, and U.K. surveillance programs almost certainly collect many Americans' communications. But we also don't want our government targeting U.K. journalists and lawyers by proxy.

Considering the extensive intelligence cooperation between our two countries, we should all be concerned about the United States outsourcing practices we would reject at home.

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The U.N. Puts America on the Hot Seat for Torture

November 10th, 2014 No Comments   Posted in ACLU Nationwide
By Jamil Dakwar, Director, ACLU Human Rights Program

The eyes of the international community will be focused on the United States this week. Government representatives will appear before the U.N. Committee against Torture to defend U.S. compliance with the anti-torture treaty the United States ratified 20 years ago.

This marks the first U.N. review of the United States' torture record since President Obama took office in 2009, and much is at stake. The review will test the pledges President Obama made to reverse disastrous Bush-era policies that led to gross violations of human rights, like torture, secret and incommunicado detention, "extraordinary renditions," unfair trials, and more. It is also likely to examine practices that emerged or became entrenched during Obama's time in office, such as indefinite detention at Guantánamo, immigration detention and deportations, and the militarization of the police, as witnessed by the world during this summer's events in Ferguson.

As we have previously written, in order to meet international torture-prevention standards, the Obama administration must first unequivocally repudiate the Bush administration's dangerous and wrong position that the ban on cruel treatment doesn't apply when the United States is operating abroad. Doing so will help break with the abusive and illegal practices of the past and strengthen the global prohibition against torture and ill-treatment enshrined in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The president should heed calls by Senators Feinstein (D-Calif.), Durbin (D-Ill.), and Leahy (D-Vt.); retired military generals; human rights groups; and even his former State Department legal advisor Harold Koh, all of whom who asked him to endorse the extraterritorial application of the convention as a matter of legal obligation, not only policy.

The U.S. delegation on Wednesday will be emphasizing the president's actions to close secret CIA detention facilities and prohibit the use of any interrogation technique not authorized by and listed in the Army Field Manual on human intelligence. But the U.N. Committee against Torture is likely to ask about loopholes or gray areas where U.S. policies are still not in full conformity with the convention.

For example, the committee is also likely to ask the U.S. delegation to explain how Appendix M to the Army Field Manual, which authorizes the use of interrogation techniques – such as "separation," sleep deprivation, and sensory deprivation – are consistent with the anti-torture treaty. Another issue that will be at the center of the U.S. review is the fact that President Obama's Executive Order 13491 on the prohibition of CIA detention is not absolute. The order contains a loophole that allows the CIA to operate detention facilities so long as those facilities are "used only to hold people on a short-term, transitory basis." As we said in our own report to the U.N. committee, there is currently no publicly available directive establishing parameters for such "short-term" and "transitory" detention operations. This absence, coupled with the secret nature of CIA covert operations, creates the possibility of continued CIA overseas detention facilities, sometimes described as "black sites," in an altered form.

The U.S. delegation will also be asked to explain many domestic policies and practices at the federal, state, and local levels that are not in full compliance with the treaty, particularly the obligation to prevent acts of cruel, inhuman, or degrading treatment or punishment. More than 65 alternative reports and submissions were made to the committee, many of them coordinated by the US Human Rights Network. The submissions cover many issues that the committee is likely to take up at the review on Wednesday and Thursday, including issues raised by the ACLU report:

  • Militarization of policing, racial profiling and excessive and lethal use of force by law enforcement, such as the fatal shootings of Mike Brown in Missouri and Milton Hall in Michigan;
  • Abusive prison conditions and use of solitary confinement, including against children and people with mental disabilities;
  • Inhuman detention and summary deportation of immigrants and asylum seekers, including the expansion of family detention and failure to provide legal representation even for migrant kids;
  • The deficiencies in the death penalty system, including cruel and inhuman practices, such as death row phenomena and lethal injections using untested and unapproved drugs in shroud of secrecy;
  • Extreme and disproportionate sentencing schemes, such as imposing life without parole sentences, including against juveniles.

This week, the president has yet another opportunity to take action to end torture and cruelty at home and abroad. He can start by instructing the U.S. delegation to firmly and equivocally reject fabricated loopholes, affirm the global reach of U.S. obligations under the convention, and take concrete transparency and accountability measures to prevent torture and abuse from happening.

The world will be watching.

Watch the live webcast here at 4 a.m. EST on Wednesday and 9 a.m. EST on Thursday. 

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I Was Arrested for Voting

November 7th, 2014 No Comments   Posted in ACLU Nationwide
By Kelli Jo Griffin

On Election Day in 2013, I took my four children with me to watch me register to vote and cast my ballot in a city election in my small town in Iowa. Earlier that day, my daughter's class learned about the meaning of democracy and the importance of elections.

Two months after I cast my ballot as a civics lesson for my daughter, the Iowa Department of Criminal Investigation agents parked across the street from my house, questioned me, and eventually arrested me and charged me with voter fraud.

Let me explain: When I was convicted on a nonviolent drug charge in 2008, my defense attorney told me that once I served my probation, I would regain my right to vote automatically – correct information at the time. But Gov. Terry Branstad suddenly changed the rules in 2011, and now all citizens with a felony conviction lose their voting rights for life. Our Secretary of State Matt Schultz, in fact, has made this subversion of democracy a point of pride. He has spent hundreds of thousands of dollars hunting down and prosecuting people with past convictions who unknowingly registered or cast a vote.

Including me.

I explained that I did not know about the rule change, but the local county attorney insisted on prosecuting me, spending thousands of taxpayers' money to try to send me to jail – away from my husband and young children for up to 15 years. Knowing that I had not committed a crime, I withstood the crippling expense and emotional roller coaster of a trial instead of accepting a plea deal for a crime I knew I did not commit. Finally, three months later, I was acquitted by a jury of my peers. It only took them 40 minutes to come to that decision. I cried with relief as I heard the verdict.

I'm the mom of four wonderful children. I volunteer at my children's schools and a women's crisis center. I speak to domestic violence survivors to support and encourage them. I have overcome a lot in my life, including a destructive prior marriage and a dependency that led to the nonviolent felony drug conviction in 2008. I'm not proud of some parts of my history, but I am proud that I managed to turn my life around and find happiness in my family, my accomplishments, and what I can now offer my community.

Now I filed a lawsuit with the help of the ACLU, not for any money or reward, but just so that I – and others in my situation – are simply allowed to vote.

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If America Is Going to Reveal the Truth About Torture, Obama Must End Gitmo’s Cover-Up Court

November 7th, 2014 No Comments   Posted in ACLU Nationwide
By Anthony D. Romero, Executive Director, ACLU

This piece originally appeared at The Guardian.

When the Senate's long delayed torture report is finally released – if the new, Republican-controlled Senate releases it at all – the international conversation will rightly focus on the CIA torture program's stunning strategic and moral failures, and the impunity granted so far to its architects. But the findings of the report, some of which have already been disclosed, should also force a conversation about the military commissions at Guantánamo, because those commissions are designed to mask the very conduct that the report condemns.

When President Bush created the military commissions, their purpose was to ensure the conviction of detainees on the basis of evidence obtained through torture. The due process enshrined in our constitution was essentially replaced by a kangaroo court: the military obstructed defendants' access to counsel; it restricted their ability to see the evidence against them; and prosecutors were allowed to introduce hearsay evidence as well as statements obtained through coercion and torture.

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Red State Myth Busting: North Dakota Voters Resoundingly Reject Restrictions on Abortion and Other Health Care

November 6th, 2014 No Comments   Posted in ACLU Nationwide
By Talcott Camp, ACLU Reproductive Freedom Project

If you stand up for the health and dignity of women and families, you may see little to celebrate in Tuesday's election, but there are still bright spots. One of the brightest is North Dakota, where voters roundly rejected an extreme and dangerous ballot measure to ban abortion and other health care by a spectacular 30-point margin.

Purposely obscuring the intent to ban abortion and other reproductive health care, Measure 1 would have added to the state constitution the vague statement that "every human being at any stage of development" has an "inalienable right to life."

Fortunately, the main sponsor of the bill that placed Measure 1 on the ballot, North Dakota Senator Margaret Sitte, helped voters see through the subterfuge.

"This amendment," she said, "is intended to present a direct challenge to Roe v. Wade."

Voters saw this measure for what it was: an attack on the ability of women and families – not politicians – to make deeply personal medical decisions. And voters didn't like it one bit. In addition to rejecting the amendment forcefully, voters ousted Sitte on Tuesday as well.

And this is hardly the first time that voters in conservative states have rejected attempts to restrict reproductive health care through ballot initiatives. Voters in Mississippi rejected personhood; Colorado voters have done so three times, most recently on Tuesday, by the same 2-to-1 margin we saw in North Dakota; and South Dakota voters have twice rejected outright bans on abortion, all since 2006.

We can take three lessons from this big win in North Dakota.

  • First, unlike many politicians, voters resoundingly reject restrictions on reproductive health care, even in red states. So let this serve as a reminder of what is politically possible precisely because voters of many stripes share deep commitments to fairness, dignity, and women's health.
  • Second, a broad range of messengers are ready to articulate those values. In North Dakota, those supporters include the state's sole remaining abortion provider as well as the only three physicians providing fertility services, such as in vitro fertilization; family physicians; faith leaders; and the AARP.
  • Third, and most important, politicians are vulnerable when they openly take these medical decisions away from patients and hand them to politicians. That is why they tried to obfuscate their intentions in North Dakota, and it is why candidates with records opposed to women's reproductive decision-making ran away from those records in the most recent campaigns. Many candidates succeeded in that gambit . . . this time. Extremists will use the same misleading, sneaky tactics next time, and that's why it's so important to expose their true positions.

As the fate of extreme ballot measures has shown over and over – even in red states, and even given strong feelings about abortion ­– voters with a clear choice on who makes deeply personal medical decisions vote to keep those decisions with patients, not politicians.

Given the results of Tuesday's election, we have an uphill battle ahead, but the resounding victory in North Dakota reminds us that we can win.

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Uncle Sam’s Databases of Suspicion

November 6th, 2014 No Comments   Posted in ACLU Nationwide
By Hina Shamsi, Director, ACLU National Security Project & Matthew Harwood, Media Strategist, ACLU

This piece originally ran at TomDispatch.com.

It began with an unexpected rapping on the front door.

When Wiley Gill opened up, no one was there. Suddenly, two police officers appeared, their guns drawn, yelling, "Chico Police Department."

"I had tunnel vision," Gill said, "The only thing I could see was their guns."

After telling him to step outside with his hands in the air, the officers lowered their guns and explained. They had received a report -- later determined to be unfounded -- that a suspect in a domestic disturbance had fled into Gill's house. The police officers asked the then-26-year-old if one of them could do a sweep of the premises. Afraid and feeling he had no alternative, Gill agreed. One officer remained with him, while the other conducted the search. After that they took down Gill's identification information. Then they were gone -- but not out of his life.

Instead, Gill became the subject of a "suspicious activity report," or SAR, which police officers fill out when they believe they're encountering a person or situation that "reasonably" might be connected in some way to terrorism. The one-page report, filed shortly after the May 2012 incident, offered no hint of terrorism. It did, however, suggest that the two officers had focused on Gill's religion, noting that his "full conversion to Islam as a young [white male] and pious demeanor is [sic] rare."

The report also indicated that the officer who entered the house had looked at Gill's computer screen and recalled something "similar to ‘Games that fly under the radar'" on it. According to the SAR, this meant Gill "had potential access to flight simulators via the Internet." Gill suspects that he was probably looking at a website about video games. The SAR also noted earlier police encounters with Gill, in his mosque and on the street. It recorded his "full beard and traditional garb" and claimed that he avoided "eye contact."

In short, the Chico Police Department was secretly keeping tabs on Gill as a suspected terrorist. Yet nowhere in the SAR was there a scintilla of evidence that he was engaged in any kind of criminal activity whatsoever. Nevertheless, that report was uploaded to the Central California Intelligence Center, one of a network of Department of Homeland Security-approved domestic intelligence fusion centers. It was then disseminated through the federal government's domestic intelligence-sharing network as well as uploaded into an FBI database known as e-Guardian, after which the Bureau opened a file on Gill.

We do not know how many government agencies now associate Wiley Gill's good name with terrorism. We do know that the nation's domestic-intelligence network is massive, including at least 59 federal agencies, over 300 Defense Department units, and approximately 78 state-based fusion centers, as well as the multitude of law enforcement agencies they serve. We also know that local law enforcement agencies have themselves raised concerns about the system's lack of privacy protections.

And it wouldn't end there for Gill.

The Architecture of Mass Suspicion

The SAR database is part of an ever-expanding domestic surveillance system established after 9/11 to gather intelligence on potential terrorism threats. At an abstract level, such a system may seem sensible: far better to prevent terrorism before it happens than to investigate and prosecute after a tragedy. Based on that reasoning, the government exhorts Americans to "see something, say something" -- the SAR program's slogan.

Indeed, just this week at a conference in New York City, FBI Director James Comey asked the public to report any suspicions they have to authorities. "When the hair on the back of your neck stands, listen to that instinct and just tell somebody," said Comey. And seeking to reassure those who do not want to get their fellow Americans in trouble based on instinct alone, the FBI director added, "We investigate in secret for a very good reason, we don't want to smear innocent people."

There are any number of problems with this approach, starting with its premise. Predicting who exactly is a future threat before a person has done anything wrong is a perilous undertaking. That's especially the case if the public is encouraged to report suspicions of neighbors, colleagues, and community members based on a "hair-on-the-back-of-your-neck" threshold. Nor is it any comfort that the FBI promises to protect the innocent by investigating "suspicious" people in secret. The civil liberties and privacy implications are, in fact, truly hair-raising, particularly when the Bureau engages in abusive and discriminatory sting operations and other rights violations.

At a fundamental level, suspicious activity reporting, as well as the digital and physical infrastructure of networked computer servers and fusion centers built around it, depends on what the government defines as suspicious. As it happens, this turns out to include innocuous, First Amendment-protected behavior.

As a start, a little history: the Nationwide Suspicious Activity Reporting Initiative was established in 2008 as a way for federal agencies, law enforcement, and the public to report and share potential terrorism-related information. The federal government then developed a list of 16 behaviors that it considered "reasonably indicative of criminal activity associated with terrorism." Nine of those 16 behaviors, as the government acknowledges, could have nothing to do with criminal activity and are constitutionally protected, including snapping photographs, taking notes, and "observation through binoculars."

Under federal regulations, the government can only collect and maintain criminal intelligence information on an individual if there is a "reasonable suspicion" that he or she is "involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity." The SAR program officially lowered that bar significantly, violating the federal government's own guidelines for maintaining a "criminal intelligence system."

There's good reason for, at a minimum, using a reasonable suspicion standard. Anything less and it's garbage in, garbage out, meaning counterterrorism "intelligence" databases become anything but intelligent.

When the Mundane Looks Suspicious

The SAR program provides striking evidence of this.

In 2013, the ACLU of Northern California obtained nearly 2,000 SARs from two state fusion centers, which collect, store, and analyze such reports, and then share those their intelligence analysts find worthwhile across what the federal government calls its Information Sharing Environment. This connects the fusion centers and other federal agencies into an information-sharing network, or directly with the FBI. Their contents proved revealing.

A number of reports were concerned with "ME" -- Middle Eastern -- males. One headline proclaimed, "Suspicious ME Males Buy Several Large Pallets of Water at REDACTED." Another read, "Suspicious Activities by a ME Male in Lodi, CA." And just what was so suspicious about this male? Read into the document and you discover that a sergeant at the Elk Grove Police Department had long been "concerned about a residence in his neighborhood occupied by a Middle Eastern male adult physician who is very unfriendly." And it's not just "Middle Eastern males" who provoke such suspicion. Get involved in a civil rights protest against the police and California law enforcement might report you, too. A June 2012 SAR was headlined "Demonstration Against Law Enforcement Use of Excessive Force" and reported that "a scheduled protest" by demonstrators "concerned about the use of excessive force by law enforcement officers" was about to occur.

What we have here isn't just a failure to communicate genuine threat information, but the transformation of suspicion into pernicious ideological, racial, and religious profiling, often disproportionately targeting activists and American Muslims. Again, that's not surprising. Throughout our history, in times of real or perceived fear of amorphously defined threats, government suspicion focuses on those who dissent or look or act differently.

Counterterrorism Accounting

Law enforcement officials, including the Los Angeles Police Department's top counterterrorism officer, have themselves exhibited skepticism about suspicious activity reporting (out of concern with the possibility of overloading the system).

In 2012, George Washington University's Homeland Security Policy Institute surveyed counterterrorism personnel working in fusion centers and in a report generally accepting of SARs noted that the program had "flooded fusion centers, law enforcement, and other security outfits with white noise," complicating "the intelligence process" and distorting "resource allocation and deployment decisions." In other words, it was wasting time and sending personnel off on wild goose chases.

A few months later, a scathing report from the Senate subcommittee on homeland security described similar intelligence problems in state-based fusion centers. It found that Department of Homeland Security (DHS) personnel assigned to the centers "forwarded ‘intelligence' of uneven quality -- oftentimes shoddy, rarely timely, sometimes endangering citizens' civil liberties and Privacy Act protections... and more often than not unrelated to terrorism."

Effectiveness doesn't exactly turn out to be one of the SAR program's strong suits, though the government has obscured this by citing the growing number of SARs that have triggered FBI investigations. However, according to areport from the Government Accountability Office (GAO), the FBI doesn't track whether SARs uploaded into the domestic intelligence network actually help thwart terrorism or lead to arrests or convictions.

You are, of course, what you measure -- in this case, not much; and yet, despite its dubious record, the SAR program is alive and kicking. According to the GAO, the number of reports in the system exploded by 750%, from 3,256 in January 2010 to 27,855 in October 2012.

And being entered in such a system, as Wiley Gill found out, can prove just the beginning of your problems. Several months after his home was searched, his telephone rang. It was a Chico police officer who told Gill to shut down his Facebook page. Gill refused, responding that there was only one reason he thought the police wanted his account deleted: its references to Islam. The phone call ended ominously with the officer warning Gill that he was on a "watchlist."

The officer may have been referring to yet another burgeoning secret database that the federal government calls its "consolidated terrorism watchlist." Inclusion in this database -- and on government blacklists that are generated from it -- can bring more severe repercussions than unwarranted law enforcement attention. It can devastate lives.

Twenty-First-Century Blacklists

When small business owner Abe Mashal reached the ticket counter at Chicago's Midway Airport on April 20, 2010, an airline representative informed him that he was on the no-fly list and could not travel to Spokane, Washington, on business. Suddenly, the former Marine found himself surrounded by TSA agents and Chicago police. Later, FBI agents questioned him at the airport and at home about his Muslim faith and his family members.

The humiliation and intimidation didn't end there. A few months later, FBI agents returned to interview Mashal, focusing again on his faith and family. Only this time they had an offer to make: if he became an FBI informant, his name would be deleted from the no-fly list and he would be paid for his services. Such manipulative quid pro quos have been made to others.

Mashal refused. The meeting ended abruptly, and he wasn't able to fly for four years.

As of August 2013, there were approximately 47,000 people, including 800 U.S. citizens and legal permanent residents like Mashal, on that secretive no-fly list, all branded as "known or suspected terrorists." All were barred from flying to, from, or over the United States without ever being given a reason why. On 9/11, just 16 names had been on the predecessor "no transport" list. The resulting increase of 293,650% -- perhaps more since 2013 -- isn't an accurate gauge of danger, especially given that names are added to the listbased on vague, broad, and error-prone standards.

The harm of being stigmatized as a suspected terrorist and barred from flying is further compounded when innocent people try to get their names removed from the list.

In 2007, the Department of Homeland Security established the Traveler Redress Inquiry Program through which those who believe they are wrongly blacklisted can theoretically attempt to correct the government's error. But banned flyers quickly find themselves frustrated because they have to guess what evidence they must produce to refute the government's unrevealed basis for watchlisting them in the first place. Redress then becomes a grim bureaucratic wonderland. In response to queries, blacklisted people receive a letter from the DHS that gives no explanation for why they were not allowed to board a plane, no confirmation of whether they are actually on the no-fly list, and no certainty about whether they can fly in the future. In the end, the only recourse for such victims is to roll the dice by buying a ticket, going to the airport, and hoping for the best.

Being unable to board a plane can have devastating consequences, as Abe Mashal can attest. He lost business opportunities and the ability to mark life's milestones with friends and family.

There is hope, however. In August, four years after the ACLU filed a lawsuiton behalf of 13 people on the no-fly list, a judge ruled that the government's redress system is unconstitutional. In early October, the government notifiedMashal and six others that they were no longer on the list. Six of the ACLU's clients remain unable to fly, but at least the government now has to disclose just why they have been put in that category, so that they can contest their blacklisting. Soon, others should have the same opportunity.

Suspicion First, Innocence Later... Maybe

The No Fly List is only the best known of the government's web of terrorism watchlists. Many more exist, derived from the same master list. Currently, there are more than one million names in the Terrorist Identities Datamart Environment, a database maintained by the National Counterterrorism Center. This classified source feeds the Terrorist Screening Database (TSDB), operated by the FBI's Terrorist Screening Center. The TSDB is an unclassified but still secret list known as the "master watchlist." containing what the government describes as "known or suspected terrorists," or KSTs.

According to documents recently leaked to the Intercept, as of August 2013 that master watchlist contained 680,000 people, including 5,000 U.S. citizens and legal permanent residents. The government can add people's names to it according to a shaky "reasonable suspicion" standard. There is, however, growing evidence that what's "reasonable" to the government may only remotely resemble what that word means in everyday usage. Information from a single source, even an uncorroborated Facebook post, can allow a government agent to watchlist an individual with virtually no outside scrutiny. Perhaps that's why 40% of those on the master watchlist have "no recognized terrorist group affiliation," according to the government's own records.

Nothing encapsulates the post-9/11, Alice-in-Wonderland inversion of American notions of due process more strikingly than this "blacklist first, innocence later... maybe" mindset.

The Terrorist Screening Database is then used to fill other lists. In the context of aviation, this means the no-fly list, as well as the selectee and expanded selectee lists. Transportation security agents subject travelers on the latter two lists to extra screenings, which can include prolonged and invasive interrogation and searches of laptops, phones, and other electronic devices. Around the border, there's the State Department's Consular Lookout and Support System, which it uses to flag people it thinks shouldn't get a visa, and the TECS System, which Customs and Border Protection uses to determine whether someone can enter the country.

Inside the United States, no watchlist may be as consequential as the one that goes by the moniker of the Known or Appropriately Suspected Terrorist File. The names on this blacklist are shared with more than 17,000 state, local, and tribal police departments nationwide through the FBI's National Crime Information Center (NCIC). Unlike any other information disseminated through the NCIC, the KST File reflects mere suspicion of involvement with criminal activity, so law enforcement personnel across the country are given access to a database of people who have secretly been labeled terrorism suspects with little or no actual evidence, based on virtually meaningless criteria.

This opens up the possibility of increased surveillance and tense encounters with the police, not to speak of outright harassment, for a large but undivulged number of people. When a police officer stops a person for a driving infraction, for instance, information about his or her KST status will pop up as soon a driver's license is checked. According to FBI documents, police officers who get a KST hit are warned to "approach with caution" and "ask probing questions."

When officers believe they're about to go face to face with a terrorist, bad things can happen. It's hardly a stretch of the imagination, particularly after a summer of police shootings of unarmed men, to suspect that an officer approaching a driver whom he believes to be a terrorist will be quicker to go for his gun. Meanwhile, the watchlisted person may never even know why his encounters with police have taken such a peculiar and menacing turn. According to the FBI's instructions, under no circumstances is a cop to tell a suspect that he or she is on a watchlist.

And once someone is on this watchlist, good luck getting off it. According to the government's watchlist rulebook, even a jury can't help you. "An individual who is acquitted or against whom charges are dismissed for a crime related to terrorism," it reads, "may nevertheless meet the reasonable standard and appropriately remain on, or be nominated to, the Terrorist Watchlist."

No matter the verdict, suspicion lasts forever.

Shadow ID

The SARs program and the consolidated terrorism watchlist are just two domestic government databases of suspicion. Many more exist. Taken together, they should be seen as a new form of national ID for a growing group of people accused of no crime, who may have done nothing wrong, but are nevertheless secretly labeled by the government as suspicious or worse. Innocent until proven guilty has been replaced with suspicious until determined otherwise.

Think of it as a new shadow system of national identification for a shadow government that is increasingly averse to operating in the light. It's an ID its "owners" don't carry around with them, yet it's imposed on them whenever they interact with government agents or agencies. It can alter their lives in disastrous ways, often without their knowledge.

And they could be you.

If this sounds dystopian, that's because it is.

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The Fight to Take Back Our Genes Moves to Canada

November 6th, 2014 No Comments   Posted in ACLU Nationwide
By Sandra S. Park, Staff Attorney, ACLU Women's Rights Project

The fight against gene patents has migrated north.

In the first challenge to gene patents in Canada, the Children's Hospital of Eastern Ontario earlier this week brought suit against the University of Utah for trying to claim monopoly ownership of what they couldn't possibly have created: parts of our genome.

The genes at the center of the controversy are associated with Long QT Syndrome, which causes abnormal, life-threatening heart rhythms. Children who inherit certain genetic mutations often die suddenly from the condition, unless they receive appropriate genetic testing and therapies.

The case in Canada seeks to replicate our success defeating gene patents at the U.S. Supreme Court in 2013. Both governments have granted thousands of patents on human genes over the years, often to American companies and universities. Until the court's ruling last year, these patents blocked medical and scientific work here at home.

The University of Utah first obtained its Long QT gene patents in the United States in 1997, after conducting studies with U.S. federal funding. It initially licensed its rights to a U.S. company that did not develop a genetic test for the disorder. But because it had rights to the genes, the company could stop anyone else from studying or examining the genes and sued another U.S. laboratory that was offering a Long QT test to the public.

For two years, there was no genetic testing for Long QT Syndrome offered in the United States because of gene patent disputes. During that period, doctors could not test patients whom they suspected of having genetic mutations and thus could not prescribe effective therapies. Sadly, that was the experience of Abigail, a 10-year-old American girl who reportedly died from undiagnosed Long QT Syndrome.

That all changed last year, when the U.S. Supreme Court unanimously struck down patent claims on two genes connected to hereditary breast and ovarian cancer in Association for Molecular Pathology v. Myriad Genetics – the lawsuit filed by the ACLU on behalf of 20 scientific and health organizations, geneticists, and patients against patent holders Myriad and the University of Utah. The court concluded that a gene cannot be patented by the first company to decipher its code, because it remains a product of nature. By doing so, the nine justices ensured monopolies couldn't arise in the United States around genetic testing, thereby dismantling the barriers to patient care, competition, and innovation caused by gene patents. (Myriad, however, still hasn't gotten the message.)

But many American companies and universities procured patents in other countries, such as Canada, on the same genes they patented in the United States, and the effects are no less devastating.

When the Canadian government was considering whether to approve Children's Hospital as a Long QT Syndrome testing provider, it received a threatening letter from PGx Health, a U.S. company that had acquired rights to Long QT through the University of Utah. As a result, the government did not permit Children's Hospital or any other facility in Canada to offer these tests to their patients.

So while patients in the United States have access to testing for Long QT Syndrome through six laboratories in the wake of the Supreme Court decision, Canadians must send samples to the United States to be tested, at a cost of more than $4,000 per test. The hospital's lab could perform the test for about $1,500 using advanced genetic sequencing techniques, if it was allowed to do so. The lawsuit filed this week by the hospital against the University of Utah and two patent co-owners aims to lift these restrictions so that it can offer more comprehensive testing options and second opinions to patients.

The Canadian court should follow the U.S. Supreme Court's lead. Patents on human genes should not determine which patients are able to access life-saving genetic testing, regardless of where they live. Nor should gene patent holders dictate what tests, therapeutics, and other applications can be developed (and even patented) from the discovery of our genetic code.

We all benefit when geneticists around the globe can provide medical care and conduct research without fear of patent infringement liability. Medicine should win out over monopoly, here, there, everywhere.

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Voters Tell Politicians, "Just Let Us Vote"

November 5th, 2014 No Comments   Posted in ACLU Nationwide
By Eunice Hyon Min Rho, ACLU

We've seen a wave of voter suppression laws across the country in recent years, which many have rightly characterized as a cynical attempt by politicians to manipulate the rules of the game.

Yesterday, however, we heard directly from voters in three states, who overwhelmingly voted in favor of a system free from barriers, fairly administered, and equally accessible to all.

Montanans faced a ballot measure to decide whether to keep their current election system. In Montana, voters have been able to register and vote on one day, Election Day, since 2005. Election Day registration, which is also available in 11 other states and D.C., is a proven method of increasing turnout. And it's popular with senior citizens, veterans, Native Americans, students, and even election officials.

Over 28,000 Montanans have taken advantage of this convenient method of voting. Therefore it isn't surprising that Montanans rejected the fearmongering over fraud and affirmed their confidence in Montana's elections by a 14-point margin, with 57 percent in favor of Election Day registration.

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In Missouri, over 70 percent of voters resoundingly rejected a constitutional amendment to allow for only six days (that didn't include weeknights or weekends) of early voting, an inadequate proposal that was decried as a "sham" and "bogus". In Illinois, nearly 73 percent of voters approved a constitutional amendment to prohibit discriminatory voting policies.

Even though it was not a clean sweep, with Connecticut likely rejecting an initiative to allow early voting, the overall trend is consistent with what we've seen in previous years. In 2012, Minnesotans rejected a photo ID law, and in 2011, Maine voted to keep Election Day registration – which has been in place since 1973. Voters across the country want a system that works fairly for all eligible voters.

Politicians, are you listening?

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Keep it Simple With Net Neutrality

November 5th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office

Chairman Tom Wheeler at the Federal Communications Commission is moving in the right direction toward true net neutrality. He deserves some plaudits for abandoning the deeply flawed proposal put forward last May, which would have allowed broadband providers to create fast lanes on the internet for those who can pay (and traffic jams for the rest of us).

Unfortunately, a proposal leaked to the Wall Street Journal last week would fail to address the real problem. While it certainly looks like an attempt at compromise, it’s exceedingly complex and even many hardened telecom lawyers don’t seem entirely clear on it. But I’ll try to explain what I think the proposal is getting at.

First, we need to review the January federal court decision striking down the earlier net neutrality rules. Although there’s no universal definition of net neutrality, all agree it incorporates three basic tenets, which were incorporated into the rules the court invalidated:

  1. No discrimination against content for reasons outside of normal network management;
  2. No blocking of lawful content for any reason, including because it is offered by a competitor or is controversial; and
  3. Transparency rules that ensure consumers know what their broadband provider is up to.

The court upheld the transparency rule, but found that the non-discrimination and no-blocking rules couldn’t hold up because of the way in which the FCC has chosen to categorize the internet under its rules.

In a series of commission decisions over the last decade, the FCC effectively determined that, for regulatory purposes, high speed internet should be categorized as an “information service,” meaning “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, of making available information via telecommunications.” In other words, information services involve doing something with the data as opposed to just moving it unmolested from point to point. Voicemail services are a good example.

By contrast, a “telecommunications service” is the dumb pipe. It means “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available to the public” where “telecommunications” means “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” The example here is the basic telephone system, where the provider just routes calls without doing anything to the underlying data.

All of this is important because the court effectively said that unless you reclassify high speed broadband as falling under the latter category, you can’t impose universal non-discrimination and no-blocking rules. Accordingly, the FCC needs to reclassify high speed broadband as a telecommunications service under Title II of the Communications Act of 1934, subject to regulation as a “common carrier” (like a public utility), before it can really protect network neutrality. For the sake of clarity, I’m going to call that “Title II” reclassification for the rest of this post.

Now, before getting into the weeds on the Wheeler proposal, it’s important to note a few features of the internet. Generally speaking, retail broadband providers do not have a direct commercial relationship with content or service providers such as Google and Netflix (there are exceptions, but don’t worry about that now). Rather, content or service providers (“edge providers” in tech-ese) send their data out through various networks, which route it to your local internet service provider.

Based on my understanding, the Wheeler proposal would recognize an entirely new commercial relationship between the distant ISP and the edge provider. That is, even though the edge provider doesn’t have any direct relationship with the ISP—it simply sends data out on another network that finds its way to the ISP—the proposal would nevertheless recognize this as an entirely new service and would create a new legal relationship between the distant ISP and edge provider that didn’t exist before. This new service is what would be defined under the Wheeler proposal as a “telecommunications service” and therefore subject to common carriage regulation.

This means the FCC would be able to impose universal non-discrimination and no-blocking rules on the “sender side” but would leave the relationship between the ISP and its customers untouched. And, to make it even more confusing, the Journal story suggests that even if the FCC could impose universal rules, it’s not clear that it will. Most folks are calling this approach a “hybrid” in that broadband internet service would, under it, be regulated as both a telecommunications service and information service.

As I say, there are a couple of problems with this plan.

First, as the Electronic Frontier Foundation explains here, the hybrid approach has a tough row to hoe in court (as opposed to pure Title II reclassification, which most of us following the issue believe to be more defensible). If you go back to the definition of telecommunications service above, you’ll see that it has to be the offering of a service for a “fee.” Because most edge providers do not pay to send their traffic to the local ISP (see this post on internet transit for more on how this works), it’s going to be tough to argue that it’s a service for a fee. And, fees for fast lanes are, as EFF notes, precisely what we’re looking to stop.

I’m also worried that leaving the retail service the ISP provides to the regular end-user outside of Title II could open the door to a particularly dangerous form of non-neutrality. Many broadband providers are vertically integrated; they own content producers alongside their broadband service. Accordingly, they have an economic incentive to provide an advantage to their services over outside competitors by, for instance, exempting their streaming video service from data caps or prioritizing the stream during times of network congestion. This “monopoly leveraging” has the potential to deeply impair innovation on the internet in that it entrenches the broadband provider’s power in the market for broadband and in the market for content.

Based on my understanding, the only real protection for consumers in this scenario would be Section 706 of the Telecommunications Act of 1996, which obligated the FCC to take certain steps to promote broadband deployment, including promoting the “virtuous cycle” where innovation on the internet drives demand for the internet, which then drives deployment. At the risk of drastically oversimplifying, the FCC would have to demonstrate that such behavior makes the internet less appealing in order to invoke Section 706 to challenge such leveraging, which is potentially a tall order, and it would have to do so on a case-by-case basis. Enforcement would thus be needlessly difficult under this approach.

Finally, as EFF also points out, the hybrid approach could open the door to content regulation, which, for a free speech group like the ACLU, is the coffin nail in this proposal. By not applying Title II to the relationship between the ISP and its subscribers, a rogue FCC could someday argue that it has the power to, for instance, impose indecency regulations on content delivered over the ISP as part of Section 706’s authority to promote broadband deployment.

Further, the sheer complexity of the proposal, as with any law or regulation, opens the door future abuse. Regulation of communications infrastructure under vague or open-ended rules is is subject to creative and potentially troubling applications by a future administration.

All is not lost, however. The fact the FCC is even floating a hybrid proposal—including a Title II element—is a very good sign. It means the millions of comments to the FCC urging reclassification have had the intended effect. Politically, it’s unclear to me why this proposal is somehow more palatable than Title II. Any open internet rule is sure to face immediate challenge in both courts and Congress. Going with pure Title II, Chairman Wheeler will be pleasing the millions of people who called for reclassification. This hybrid proposal will please no one.

We should continue to keep the pressure on for true net neutrality by calling our members of Congress and urging support for robust open internet rules.


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