By Laura W. Murphy, Director, ACLU Washington Legislative Office
This was originally posted on The Huffington Post.
Voters are facing an ugly surprise on their way to the voting booth on Tuesday. What most people don't realize is that since 2006, some 34 state legislatures have worked diligently to chip away at the fundamental right to vote -- and overwhelmingly, people of color are the target.
This year alone, 14 states have implemented legislation that would end same-day voter registration, limit early voting, and require voters to present forms of ID that many voters lack and cannot easily obtain. What do these measures have in common? Each would disproportionately impact African-American voters, making it more difficult for them to vote or have their vote count in a meaningful fashion.
To make matters worse, the Supreme Court pulled the rug out from under decades of effective voting rights protections in its decision in Shelby County v. Holder. The court's decision gave a free pass to state and local politicians manipulating voting laws for their own gain, allowing them to pick and choose who will be able to vote. That is why the right to vote is in danger across the country.
Some of these state legislatures, while attacking the right to vote, also diminish the value of each vote counted through all kinds of creative methods. Some recent examples include drawing boundaries of an election district to ensure that minority voters cannot constitute a majority, and "packing" minorities in only one or a limited number of districts to ensure they are a majority, which weakens the voting power of minority groups that could otherwise constitute an influential voting bloc. Smaller districts can also be drawn in such a way that the voting power of a minority group is reduced by dividing minorities into several districts that are predominantly white.
I know, the term "voting matters" has probably lost its value over the years because of over use, but it really does matter. Voting isn't just about electing candidates. It's about feeling a sense of dignity and empowering people to take part in the democratic process. It's about influencing policies and holding the federal and state governments accountable for promoting social and economic equity for ALL people.
Withholding the right to vote is a way to impose second-class citizenship on people who threaten the status quo. Throughout our country's history, the right to vote was denied to white men without property, African-Americans, women, Native Americans, Chinese-Americans, and adults under 21 years of age.
While the 15th Amendment was adopted in 1870 and prohibited denial of the right to vote on account of race or color, in reality, African-Americans who wanted to exercise their right to vote were beaten, chased by dogs, bludgeoned by police and sometimes killed. It's somewhat unimaginable that African-Americans were only able to vote within recent memory -- with the passage of the Voting Rights Act of 1965.
But that's all history, right?
Some claim today, that America is no longer plagued by the racial injustice of the civil rights era. Unfortunately, less overt strategies have been implemented more recently to block African-Americans and other minorities from the ballot. I can't believe how close we are to losing what many fought so hard, and sometimes died, to achieve.
Now more than ever, new tools are needed to prevent voter discrimination before it happens. In January 2014, a bipartisan group of lawmakers introduced the Voting Rights Amendment Act (VRAA) to repair the damage done by the Shelby decision. Congress had the opportunity to pass a new, flexible and forward-looking set of protections that work together to guarantee our right to vote -- however, they failed to act on it.
In September, voting rights advocates, including myself, delivered petitions from over 500,000 voters seeking to restore VRA protections to the office of Speaker John Boehner. We found ourselves confronted by a locked door, perfect symbolism for the disenfranchisement many voters of color will experience come Tuesday. Next year the Voting Rights Act will be celebrating a dubious 50th anniversary, unless Congress acts immediately to pass new protections. Next week, voters of color will be immersed in the least protected election since the passage of the act in 1965.
The Voting Rights Act was born from the premise that all Americans have the right to vote -- regardless of race or language proficiency. It was critical to the civil rights movement, turning hateful policies like poll taxes and literacy tests into historical footnotes. We cannot allow those footnotes to be rewritten into modern forms of vote suppression.
By Michaela Wallin, Women's Rights Project, ACLU
No one should be afraid to call 911 when facing danger in their home.
Yet, across the country, towns and cities have passed local laws – often called nuisance or crime free ordinances – that punish property owners and push for eviction of their tenants when residents seek police and emergency aid. Such laws treat crime victims as a nuisance and leave them with an impossible choice: endure threats or violence without police protection, or call 911 and risk homelessness and even greater vulnerability.
A new Pennsylvania law, however, now promises respite from this kind of catch-22, which all too often leads domestic violence victims to remain in unsafe housing for fear of being evicted.
This was precisely the dilemma faced by Lakisha Briggs, a resident of Norristown, Pennsylvania, when the police responded to her home for reported domestic violence. Though they arrested her abuser, the police then told Ms. Briggs that two more calls for help would result in her eviction under a local ordinance.
After this, Ms. Briggs was terrified to call the police despite repeated and escalating attacks by her ex-boyfriend. She even begged her neighbors not to call 911 after she was stabbed in the neck with a piece of glass. Thankfully, each time someone else called for life-saving assistance. While Ms. Briggs survived, Norristown affirmed her fears and aggressively sought her eviction.
Last year, the ACLU filed a federal lawsuit on behalf of Ms. Briggs to challenge the ordinance. In response to arguments that it violated the Constitution and federal law, Norristown repealed the law and settled the lawsuit, paying $495,000 to Ms. Briggs and her attorneys and agreeing not to pass a similar ordinance. Other Pennsylvania cities, including Mount Oliver and Forest City, also recognized the negative impact of these ordinances and repealed them after advocacy from the ACLU and other allies. But Ms. Briggs' story remains far from unique, and the burden has fallen on domestic violence victims to come forward with stories of evictions and violence to prompt this change.
Until today, that is.
Responding to widespread attention on the perverse consequences of these ordinances, lawmakers in Pennsylvania took an important stand and unanimously enacted legislation to ensure that no one facing danger in their home will be penalized for calling 911. This morning, Gov. Tom Corbett signed that bill, providing protection for any resident, tenant, or landlord who faces penalty under a local ordinance because police or emergency services were called or responded to a situation where intervention was needed in response to abuse, crime, or an emergency. Callers who reasonably believe emergency response is necessary to prevent such an event are also covered. The law also authorizes residents and landlords to seek remedies in court against any municipality that violates these protections.
While this legislation is a vital step forward, municipalities across the country are increasingly enacting and enforcing nuisance ordinances. Most municipalities fail to consider the risk that these ordinances will deter people from reporting crime, further endangering crime victims and undermining public safety as a whole. Nor do they consider the devastating and disproportionate impact these laws have been shown to have on victims of domestic violence and communities of color.
The federal government, however, has taken notice. The U.S Department of Housing and Urban Development (HUD), recognizing nuisance ordinances as a fair housing issue, filed a separate complaint against Norristown. After pushing for repeal of the ordinance with the ACLU, HUD entered a conciliation agreement that requires training and ongoing monitoring of Norristown's activities.
These actions by the federal government send an important message: enforcement of similar ordinances may violate civil rights laws and could result in the loss of HUD funding. But state legislatures also must take action.
Pennsylvania has led by example and now joins Minnesota in passing legislation that affirmatively protects tenants' right to call the police. Earlier this year, the New York Assembly unanimously approved a bill that would establish the most comprehensive state protections yet. The full New York Senate did not take a vote on the bill before its term ended, but the ACLU, domestic violence advocates, and many others voiced their support and will continue to advocate for the bill in the upcoming legislative session.
While Pennsylvanians no longer have to choose between safety and housing, access to police and housing security should not depend on where you live. State and municipal lawmakers across the country should act to ensure that local laws do not undermine victim safety by punishing crime victims for violence perpetrated against them.
The ACLU wants to hear from anyone who has been affected by these ordinances, including landlords, tenants, fair housing and domestic violence advocates. If you have a story to share, please fill out oursurvey.
By Dale Ho, Director, Voting Rights Project, ACLU
When voters in three states go to the polls tomorrow, they won’t have to deal with unnecessary burdens and restrictions before stepping into the voting booth and pulling the curtain behind them. That’s because the ACLU challenged five voter suppression laws in various parts of the country in the run up to tomorrow’s election. As a result of our work, three of those five laws are not in effect for this election. Here’s how the ACLU took 3 of 5 from the vote suppressors:
Pennsylvania. On January 17, a Pennsylvania state judge permanently blocked Pennsylvania's strict voter ID law. On May 8, Gov. Tom Corbett announced that Pennsylvania will not appeal the ruling, effectively killing voter ID in the commonwealth for this election and beyond.
Ohio. On September 29, the Supreme Court gave the green light to Ohio’s elimination of a week of early voting, evening voting hours, and same-day registration. Earlier, a panel of the U.S. Court of Appeals for the Sixth Circuit unanimously ruled that those restrictions violated the Constitution and the federal Voting Rights Act. Unfortunately, less than 18 hours before early voting was scheduled to begin, the Supreme Court stayed the lower court’s ruling by a 5-4 vote. Ohio’s early voting cutbacks are in effect for November. Attorney General Eric Holder called the decision “a major step backwards” for voting rights.
North Carolina. On October 8, the Supreme Court issued a ruling permitting North Carolina to eliminate same-day registration and out-of-precinct voting. Previously, a panel of the U.S. Court of Appeals for the Fourth Circuit issued a ruling blocking those measures under the Voting Rights Act, noting that more than 20,000 voters had used same-day registration during the last midterm election in North Carolina. The Supreme Court, however, stayed that ruling, meaning that these methods of registration and voting are unavailable in this year’s election.
Wisconsin. On October 9, the Supreme Court blocked Wisconsin’s voter ID for the upcoming election. Earlier, a panel of the U.S. Court of Appeals for the Seventh Circuit had issued a ruling permitting Wisconsin’s voter ID law to go into effect this November. That ruling, which came after over 11,000 ballots had already been mailed, would have changed the rules of the game in an election already underway, effectively disenfranchising any voters who had already cast a ballot. The ACLU quickly filed a motion in the U.S. Supreme Court, which was granted by a 6-3 vote, effectively blocking the voter ID law for November.
Arkansas. On October 15, the Arkansas Supreme Court unanimously ruled that Arkansas’ strict voter ID law violates the Arkansas Constitution. Approximately 1,000 voters had been disenfranchised by the ID law in the primaries earlier this year. Because the Arkansas Supreme Court’s decision is on state constitutional grounds, its ruling marks the end of voter ID in Arkansas.
But the fight goes on. The rulings in Ohio, North Carolina, and Wisconsin applied only to tomorrow’s elections. They were not final judgments on the merits. This means we will continue to litigate these cases next year, when we hope to tilt the balance decisively in favor of ordinary voters who are at risk of being fenced out of our democracy through unsavory tactics meant to suppress the vote.
Louisiana Blocks Ebola Scientists From Meeting in New Orleans in Latest Counterproductive Over-Reaction
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project
The state of Louisiana has informed the organizers of a scientific conference that Ebola researchers who have recently returned from West Africa would not be permitted to travel to New Orleans for the conference—and would be quarantined if they showed up (official letter here). The group, the American Society of Tropical Medicine and Hygiene, has protested the state’s action.
Could it become any more obvious that over-reaction to Ebola is undercutting actual efforts to stop the spread of the disease?
Face-to-face meetings of experts are a crucial part of any profession. They are where insights are shared, research is exchanged, and relationships are formed. As a group of scientific organizations wrote in a letter to government officials several years ago,
Participation in scientific conferences is a critical opportunity for scientists and engineers to keep current in rapidly changing fields of science and technology. These conferences facilitate communication among scientists, engineers, practitioners and students. They provide an important venue for presenting cutting-edge research.
Indeed, anthropologists studying the subject have found that face-to-face communications "are crucial for sustaining the social relationships that make distributed work possible."
Here we have a group of scientists who are professionally dedicated to learning more about Ebola, which must surely be a critical part of actually fighting the disease—and yet Louisiana is interfering with this vital scientific function. The state Department of Health and Hospitals statement actually concedes that “from a medical perspective, asymptomatic individuals are not at risk of exposing others.” Exactly. That should be the end of it. As the New England Journal of Medicine has written, with Ebola “we now know that fever precedes the contagious stage.” Let’s all repeat that together: Fever Precedes Contagiousness.
We know this, NEJM points out, not only from clinical observation in Africa but also from the extremely sensitive “PCR” DNA-detecting test that can detect even minute quantities of the virus in the blood stream of infected individuals. That test is “often negative on the day when fever or other symptoms begin and only becomes reliably positive 2 to 3 days after symptom onset,” as the NEJM writes.
But that’s not the end of it, unfortunately. The Louisiana letter continues, “however, the State is committed to preventing any unnecessary exposure of Ebola to the general public,” and goes on to state that anyone who has visited West Africa would be asked to “remain in a self-quarantine for the 21 days following their relevant travel history.” This is for “the protection of Louisiana residents and other visitors.” Any researchers who do show up, the state warns, will be “confined to your room.”
If, “from a medical perspective,” there is no “risk of exposing others,” as the state concedes, then why does it claim it’s for the protection of others?
The answer, obviously, is politics. In New Jersey, Maine, and elsewhere we have seen how politically driven over-reaction to Ebola has threatened to undercut the very battle against the disease, for example by stigmatizing and deterring health care workers from volunteering in the battle. But this latest move in Louisiana is an even clearer example of the problem.
From a local standpoint, as my colleagues at the ACLU of Louisiana point out to me, this step is particularly ironic because the oldest school of tropical medicine in the United States is in New Orleans, the School of Public Health and Tropical Medicine at Tulane (which condemned the policy). To keep researchers on the tropical medical issue of our time away from the city with the only school devoted entirely to their study is especially sad.
By Carmen Iguina, Equal Justice Works Fellow, ACLU of Southern California
Mario* had a long history of mental illness prior to landing in immigration custody. He struggled with schizophrenia and had attempted suicide in the past.
Despite this, none of the various immigration officials who came into contact with him — including deportation officers, medical staff, or even the immigration judge — ever thought to assess Mario's mental health to determine whether he was competent to represent himself in his immigration case.
Instead, all he got was a notation in his file that he should be transferred to a more appropriate facility for evaluation and treatment — a notation that the immigration judge in his case never even saw. The judge had no idea that Mario suffered from a serious mental illness that could affect his ability to represent himself. Mario therefore appeared for hearing after hearing, alone. He was apparently supposed to represent himself, despite his clear inability to do so.
It was not until several months later, when another detainee at the facility contacted me at the ACLU, that things changed for Mario. He called because, as he explained, Mario was "clearly not well" and had been going to court unrepresented. "He needs help," his friend pleaded.
I wrote a letter to the immigration judge, informing him that Mario suffered from a serious mental disorder. As a result, the judge, now aware of his mental health history, conducted a hearing and found that Mario was not competent to represent himself. He was later provided with an attorney under Franco-Gonzalez v. Holder. Thanks to the historic April 23, 2013, ruling from the federal court in Franco, Mario now has an attorney to help him fight his case in immigration court.
But had it not been for that call from a friend, or that letter from the ACLU, Mario would have been lost in the immigration system, likely already deported back to his home country.
As Mario's case shows only too well, immigration authorities had no system in place for identifying individuals with serious mental disabilities or for communicating that highly relevant information to the immigration courts. Even when the information made it to the immigration courts, judges had no clear guidance on what to do to determine whether an immigrant with a mental disability was competent to represent him or herself. Immigration judges were not even able to ask for a forensic evaluation in a case if they found that they needed more information to determine whether someone was competent enough to proceed alone.
Yesterday, that changed.
The court in Franco-Gonzalez has issued yet another historic order in the case, this time establishing a comprehensive screening and competency determination system in the immigration detention centers and courts throughout Washington, California, and Arizona. The system will require all detainees to be immediately screened for mental disorders upon their arrival at the detention center. Should that initial screening or other information reveal that the individual might have a serious mental disorder or condition, the detainee will be referred for a further assessment.
Immigration authorities are now required to share that information with immigration judges, who will then hold structured competency hearings, with the aid of forensic evaluations, to determine detainees' competency. The order provides clear guidance to judges, including what standard to apply when determining whether someone is competent to represent himself or herself in immigration proceedings, thus establishing the first federal standard for making such a determination.
The fight for individuals like Mario is far from over. The judge has given the government ninety days to comply with the order and completely revamp the system that failed Mario the first time around. The ACLU will continue to fight to ensure that the government complies with the order, to push the government to apply those same procedures nationwide, and to make sure that all individuals like Mario are properly screened and assessed before being forced to stand in court alone.
*Name changed to protect our client's identity
By Dror Ladin, ACLU Immigrants' Rights Project
Q: Why is the government trying to shut down a Greek billionaire's defamation suit against an influential anti-Iran advocacy group?
A: It's a secret.
United Against Nuclear Iran is a prominent nongovernmental organization that seeks to influence U.S. policy on Iran and is known for "naming and shaming" companies that do business with the country. Last year, the organization accused Victor Restis, a Greek shipping magnate, of doing illicit business with Iran. Restis sued the group for defamation, and that case is currently pending in New York.
Last month, the U.S. government suddenly intervened in the case, arguing that the lawsuit had to be immediately dismissed because further litigation would reveal "state secrets." It provided no public explanation. Facing a total vacuum of information, the media has been left to speculate about what the government is trying to hide. Unlawful government attempts to influence American public opinion through unaffiliated organizations? Foreign intelligence efforts to affect American politics?
The state secrets privilege is a legal doctrine that can be legitimately applied only in the very narrowest of circumstances. When properly invoked, the privilege permits the government to block the release of information in a lawsuit that, if publicly disclosed, would cause harm to national security — for example, the technical specifications of very sensitive military equipment.
In recent years, however, the government has increasingly sought to use the state secrets privilege not merely to shield particular information from disclosure, but to keep entire cases out of court. The government has used the privilege to avoid accounting for torture, to silence national security whistleblowers, to dismiss lawsuits alleging racial discrimination, and to cover up negligence. Government agencies have increasingly relied on the state secrets doctrine as a legal loophole to evade accountability for their illegal actions and to cover up embarrassing facts.
The invocation of state secrets is particularly extraordinary in this case, even considering the ballooning use in the last two administrations of what was once a rare tactic. Previously – even in cases involving extraordinarily sensitive subject matters, such as torture, surveillance, intelligence, and secret weapons systems – the public had some basis for understanding why the government had an interest in the case when it tried to shut down lawsuits based on state secrets. But here, all we have are questions: Why does the government want to keep the public entirely in the dark about its interest in a defamation suit to which it's not even a party? Why does the government believe that a federal court shouldn't even hear this case? And how could the lawsuit possibly reveal state secrets, given that neither side has any acknowledged governmental connections that would entitle them to possess government secrets?
Responding to this unprecedented lack of transparency, the ACLU, along with the Brennan Center for Justice, the Center for Constitutional Rights, the Constitution Project, the Electronic Frontier Foundation, and the Sunlight Foundation, filed an amicus brief on Wednesday urging the court to carefully consider whether this case justifies the government's efforts to impose such blanket secrecy.
When the government abuses the state secrets privilege, it robs victims of their day in court. And the more broadly the government uses its secrecy power, the less the American people can know about their government's actions and hold it accountable.
For now, we don't know why the government wants to block the Restis v. UANI lawsuit. But regardless of who ultimately wins the defamation lawsuit, one thing is clear: When courts allow the government to overuse its state secrets privilege, it's our democracy that loses.
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office
Hollaback!, an anti-street harassment organization, released a video taken with a hidden camera that quickly went viral, offering proof that the harassment women describe (and some people dismiss) actually happens on a regular basis.
Should current laws dealing with harassment be strengthened to include catcalling, or will that go too far in trying to control speech and behavior?
The viral catcalling video illustrates a real problem. And the shameful treatment of women in our culture is not just limited to jeers and catcalls on the street. But we need to be careful about aggressively using disorderly conduct or similar laws — like those that bar "obscene" statements or gestures in public — to criminalize unwelcome verbal interactions.
First, it's crucial to note that all states already have laws governing many forms of street harassment, including some of the behavior on display in the video. Laws covering following, threats, stalking, groping and putting someone in fear of unwanted physical contact (even if you don't touch them) should be enforced, especially in cases involving physical contact like this one.
Disorderly conduct and "obscene gesture" laws, however, pose special problems for the First Amendment. They can be (and often are) misused against lawful protesters, people criticizing the police and individuals filming officers in public. Extending disorderly conduct laws to unwanted verbal interactions would amplify the potential for misuse in these and other areas.
Similarly, expansively interpreting such laws to cover catcalls could also raise enforcement concerns. As we have seen with stop-and-frisk programs and antipanhandling ordinances, such laws can be used pretextually as part of "broken windows" policing, which disproportionately impacts communities of color. We can expect the same bias to infect the enforcement of these laws against purely verbal interactions.
Emphatically, none of this is to dismiss the legitimate concerns raised by this video and the ongoing problem of street harassment. We should be grateful for the activists who are seeking to raise awareness about this demeaning and despicable practice. We can, however, combat street harassment without sacrificing free speech or risking unintended side effects.
By Anthony D. Romero, Executive Director, ACLU
Filmmaker Laura Poitras, director of CITIZENFOUR, sits down with Anthony Romero, ACLU executive director, to discuss her film, the surveillance state, and Edward Snowden.
Anthony Romero: Your film offers an understanding of Ed Snowden and the NSA revelations in a way that we can't fully do in paper and writing. It brings it to life. And you're behind the scenes in the film, but you're also a protagonist. Talk to me a little bit about your relationship with Ed and about the trust that was built over time. How did he pick you?
Laura Poitras: Ed reached out to me in January 2013 anonymously. I didn't know who he was, and of course the first question I asked him was, "Who are you? And why are you picking me?" He said something very peculiar – that I had picked him. I had been put on a watchlist by the U.S. government. I had been stopped at the border many, many times. He felt that since I had been through that, I would have a unique understanding of the dangers of surveillance.
AR: What has changed since the Snowden revelations? What do you think has happened in our country and across the globe?
LP: We've seen a global shift in consciousness in people's understanding of the dragnet, bulk collection of communications globally. We've also seen technology companies understand that customers want privacy, and come forward with new encryption tools. And we've learned that encryption works. Ed and I wouldn't have been able to communicate for five months without encryption. Unfortunately, we haven't seen enough movement in our government. But, and this relates to the work the ACLU does, we now have documents that tell us what the government is doing, which has opened up the possibility for legal challenges. So we have the ACLU's litigation over the bulk collection of U.S. call records. Judges have called that Orwellian and unconstitutional.
AR: Your film beautifully chronicles the coming of age of a political dissident, from the moment when he first reaches out to you, to the revelations in Hong Kong, to his role as whistleblower and dissident. What does your film do to bring out a fuller picture of Ed Snowden and his motivations?
LP: In previous cases, like Chelsea Manning's, whistleblowers remained incommunicado, so they never got to voice why they made the choices they did. Ed made the choice early on to take responsibility, which allowed me and Glenn [Greenwald] and others to talk to him about why. He sees the expansion of these technologies as a real threat to democracy, and the fact that they're happening in secret without any public debate as really dangerous. He's also someone who grew up on the Internet and felt that it should be a force for good, not a force for human surveillance and control. You see when you meet him in this hotel room that he's undeniably motivated by principles. He's an idealist and he believes in the Constitution. He believes that these are everybody's issues and that the American public has a right to know what their government is doing.
AR: Tell me a little bit about the restrictions placed on you. It has not been an easy documentary for you to make.
LP: As a journalist, I have an obligation to protect sources that I work with. I actually moved to Germany because I felt I could no longer protect source material while crossing the border, because I've had things like my computer confiscated. It's not a good sign when journalists feel they cannot freely work or freely cross the U.S. border. So I've had to go to some pretty drastic measures to do my job, which is to protect the sources that entrust me with information. You hear that from lawyers, too. Lawyers don't feel like they can talk on their phone with certain clients, so they have to get on airplanes to meet with them.
AR: How does the film debunk some of the myths that were commonly held about Ed Snowden?
LP: He has said multiple times: I don't want to be the story. That has been consistent. He's never wanted to be the focus of attention. When we were in correspondence, he said to me that he would come forward as the source of the disclosures. And I told him, way before Hong Kong, that if he planned to come forward then I wanted to meet and film him. He said "No, I'm not the story." So it was actually with great reluctance that he agreed to meet me and for my camera to be present. He explains that he's never worked with the media, and that he thinks the media focuses too much on personalities instead of issues.
I made a film about him because I felt it was important to understand why such a young person – with so much ahead of him, 29 years old, making a good salary with a partner that he loved – would risk everything. It was in that context that we met in Hong Kong. Glenn and I both experienced somebody at a point of no return, who decided he was going to sacrifice everything, including his personal life, to inform the public about what the government is doing.
AR: Was there a particular turning point for him that made him decide [to expose the documents]?
LP: I think it was an accumulation over time of what he had witnessed. He says he had been building the tools to amass more state power and more state secrecy, and at some point he couldn't be a part of it anymore. I think the decision to leave the country was informed by seeing what had happened to previous whistleblowers. He obviously knew of the "NSA Four," a group of NSA whistleblowers including Tom Drake and William Binney, who tried to go through the normal channels to expose these things. The government put them under investigation and raided their homes. The FBI showed up with guns drawn. Ed knew very well what happened to whistleblowers who tried to expose what the NSA was doing from inside the system.
AR: Why did Ed give you the documents rather than publish them himself?
LP: He wanted the press to make the decisions about what was in the public interest. In every case, stories have gone through an editorial process. The process isn't easy and these are tough choices. You saw, for example, with the PRISM story – you had both the Washington Post and the Guardian publishing articles on the same document at the same time, without coordinating, making the same choices about what to redact. That document had information that was clearly of the public interest, about the cooperation of Internet companies and the NSA. But that document also had operational things that both news organizations deemed should be redacted. Those decisions have been debated in newsrooms for every story.
There are some things in the documents that I think are operational and shouldn't be published. There are a lot of names in these documents that I don't think should be published and things that don't serve the public interest. But there is an enormous amount of information that exposes what the NSA is doing.
AR: Tell me more about what is on the horizon in terms of other revelations. Is there much more, a little more? And why should our members care? Do you really think that privacy is something still worth fighting for, and that we can win?
LP: In terms of the reporting, yes, there's still a lot more to do. The process does take time. I've worked on stories that take four months to go to print.
AR: Why is that?
LP: Because they require research into the documents, outside reporting to verify, and other sources to get them right. Some documents speak for themselves, and some don't. I think the biggest story that has been underreported is what's called the Special Source Operations or SSO, which is the alliance between the NSA and the telecoms – the AT&Ts of the world – and how they've been working together and sharing information. I think that's the biggest story that hasn't been fully reported.
In terms of why privacy matters for ACLU members – did everyone read "1984" in high school? The chilling effect is profound. There's a point when Winston has to go to the corner of his room because that's the one place he can write in his journal without feeling that he might be monitored. What the government is able to collect is vast. The camera in your laptop can be turned on without you knowing. If you're an activist at Occupy Wall Street, the police use IMSI catchers, basically fake cell phone towers, to get a list of phone numbers of everybody who gathers.
We have the Fourth Amendment, we have freedom of assembly, freedom of expression, freedom of the press – these surveillance programs threaten all of those things at a fundamental level. The government is cracking down on sources and leaks, people who are trying to say that what the government is doing shouldn't happen in secret. Journalists who are working on these stories are now being targeted, rather than people responsible for things like CIA renditions. Where are the committees looking at those things? The White House is trying to hold back a Senate report on the CIA's engagement in torture. That's not what you want to see in a free country, a free democracy.
AR: What's next for you?
LP: I wish I could say that my work is done. I'm sure you wish that too, right? The post-9/11 era is a dark chapter in American history. There's been a moral drift away from fundamental principles of rule of law, full stop. It would be great to say, "Okay we're done. You can stop litigating these cases; I can stop focusing my filmmaking on them." But unfortunately the government is still engaging in policies that are not in line with our Constitution. So I think I'll be focusing on these issues for a while. And hopefully someday soon we can both focus on other things.
By Ashley Gorski, Nadine Strossen Fellow, National Security Project, ACLU
What is arguably the most powerful of the U.S. government's surveillance authorities is also the most secretive, and it operates with the least amount of oversight.
Today, we're releasing a new set of documents concerning Executive Order 12333 that we — alongside the Media Freedom and Information Access Clinic at Yale Law School — obtained in an ongoing Freedom of Information Act lawsuit. EO 12333 hasn't received much public attention to date, but the government's prior disclosures in our suit have shown that the executive order in fact governs most of the NSA's surveillance. In the NSA's own words, EO 12333 is "the primary source of the NSA's foreign intelligence-gathering authority."
Surveillance conducted under EO 12333 is implemented almost entirely by the executive branch, without review by Congress or the courts. EO 12333 lacks even the plainly inadequate legislative and judicial checks on the two more well-known surveillance authorities — Section 215 of the Patriot Act and the FISA Amendments Act.
Some of the most significant conclusions to be drawn from the new documents:
"It is not possible" for the NSA to adequately protect the privacy of innocent Americans swept up in its dragnet.
Even when the NSA is "targeting" foreigners abroad, the agency sweeps up vast quantities of innocent Americans' communications. This is true when the agency is conducting surveillance under FISA, and it's just as true when the agency is conducting surveillance under EO 12333.
But we don't yet have a full understanding of EO 12333's implications for Americans' privacy. That's in part because of the secrecy surrounding EO 12333, and in part because, as one NSA memo acknowledges, the agency itself often doesn't know whether it's handling communications to or from Americans:
The government frequently argues that its sweeping, "collect it all" approach to surveillance is lawful because it follows certain procedures when searching and sharing the information it gathers. These "minimization procedures" vary by agency and by surveillance program, but in general, they require special treatment of Americans' communications to mitigate the intrusion on privacy rights.
But if the NSA can't — or won't — ensure that it is correctly identifying Americans' communications when it vacuums them up, how can the public trust that the NSA is properly safeguarding Americans' private information? Furthermore, if the NSA doesn't know what it's collecting, how can it effectively assess its compliance with its own rules?
NSA analysts may be laughing at your sex tape.
One of the other new documents, another internal NSA memo, considers whether "sharing of voice cuts among signals intelligence (SIGINT) analysts for purposes other than official ones constitutes a violation of any laws, policies, or procedures." Unsurprisingly, the deputy general counsel concludes that it's not permitted:
The memo appears to be a response to allegations made in 2008 by a former NSA military intercept operator, David Murfee Faulk, that he and others routinely circulated "good phone sex" recordings, or "cuts," around the office. Faulk and another operator also alleged that the NSA had eavesdropped on hundreds of U.S. citizens overseas as they called home — capturing not only phone sex, but more mundane pillow talk as well.
While phone sex may be a slowly dying art, the risk of NSA abuse has only grown as new media takes its place. Today, EO 12333 surveillance can put your nude selfies and your sex tapes into the NSA's hands, where analysts may once again be tempted to pass them around in violation of agency rules. As Edward Snowden recently said, the auditing of the NSA's systems is weak, and the ability to ogle nude photos is seen as one of the "fringe benefits of surveillance positions."
The NSA agrees that your phone number is identifying (except when it doesn't).
Much of the public debate on the NSA's collection of phone records, or "metadata," has focused on the Section 215 program. But reports suggest that the NSA collects an even greater quantity of call records under EO 12333 — up to five billion records per day. Though this collection takes place overseas, it still captures Americans' domestic metadata and other sensitive information, like location data, that the NSA says it does not collect under Section 215. That raises concerns that the NSA is using EO 12333 to maneuver around restrictions it faces under other statutory authorities.
The government has argued that phone records are not private because they don't include names, just numbers. This is an absurd argument. As the ACLU has explained, phone numbers are every bit as identifying as our social security numbers — no two of us have the same one — and it's a trivial matter for the government to attach a name to a number. One of the new documents shows that, back in 2007, the NSA's own lawyers recognized that Congress had considered this question — and had agreed with the ACLU:
This memo goes on to argue that Americans' metadata may be shared widely across intelligence agencies because it is not constitutionally protected — an argument that's wrong on several grounds. Metadata can reveal personal information that is just as sensitive and private as the content of communications. In addition, as the memo itself acknowledges, the handling of Americans' metadata is subject to certain statutory requirements. But it's not yet clear how the NSA interpreted those protections.
We're hoping that our FOIA litigation will result in the release of more information — not only about the scope of collection under EO 12333, but also about how the NSA and other agencies are handling and sharing the vast amounts of data they acquire.
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project
This piece originally appeared at Slate's Jurisprudence, under the title, "Search Party."
It used to be that when police violated a suspect's Fourth Amendment rights through an unconstitutional search, evidence derived from the search would be thrown out.
Increasingly, that's not the case.
Courts are carving out ever-larger safe harbors for police errors and misconduct, thereby eroding the boundaries of the Fourth Amendment prohibition on unreasonable search and seizure. Earlier this month, the 3rd Circuit Court of Appeals became the latest to give the government a free pass for Fourth Amendment violations—in this case, allowing use of evidence derived from a GPS tracking device that police attached to a suspect's van without a warrant.
Under the "exclusionary rule," when police engage in an illegal search, prosecutors can't use the results. This penalty incentivizes police to abide by the Constitution and provides relief to victims of government misconduct. Indeed, as the Supreme Court explained a century ago, without the exclusionary rule the Fourth Amendment would be "of no value" and "might as well be stricken from the Constitution."
If courts never say what the Fourth Amendment requires, police will never be forced to comply with it.
But in a series of decisions starting in 1984, the Supreme Court has retreated from this vital protection of our rights. The justices first held that if police were relying in good faith on a judicially issued warrant authorizing a particular search, the resulting evidence couldn't be suppressed even if the search was later held to be unconstitutional. The court has since expanded this good-faith exception to cover police reliance on other forms of explicit authorization, including statutes later held to be unconstitutional and binding court rulings that are later reversed.
The theory behind these Supreme Court decisions is that the exclusionary rule's purpose is not to help people whose rights have been violated, but to deter police from committing violations. When police are following guidance from an authoritative outside source, the theory goes, they are doing what they are supposed to do. Suppressing evidence won't deter future violations because police couldn't have been any more careful. Unfortunately, this view of the Fourth Amendment leaves defendants without relief for unconstitutional police conduct. (A similar doctrine, qualified immunity, often prevents people from securing compensation for Fourth Amendment violations in civil suits against offending police officers.)
Perhaps even worse, the good-faith exception to the exclusionary rule stunts the development of Fourth Amendment law. It discourages defendants from challenging illegal searches by denying them the possibility of redress. And courts frequently apply it without also addressing whether police conduct actually violated the Fourth Amendment in the first place. Whatever you think about the good-faith exception, courts are using it as an excuse to avoid scrutinizing questionable police searches.
For instance, last year, a three-judge panel of the 3rd Circuit held in United States v. Katzin that FBI agents violated the Fourth Amendment when they placed a GPS tracker on a Pennsylvania man's vehicle without a warrant. The court ordered the GPS-derived evidence suppressed. The panel's decision was important, because it was the first appellate opinion to hold that a warrant is required for GPS tracking since the Supreme Court's 2012 decision in United States v. Jones. In that case, the court found that attaching a GPS device to a car and tracking the car's movements is a Fourth Amendment "search," but did not decide whether it is the kind of search that requires a warrant, leaving that important question to lower courts to figure out. (I worked on the amicus briefs filed by the American Civil Liberties Union for Katzin and other cases involving the good-faith exception.)
Borrowing language from Justice Sonia Sotomayor's concurring opinion in Jones, the 3rd Circuit panel explained that a warrant is required because GPS trackers can record "a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations."
After losing in Katzin, the government sought rehearing by the full 3rd Circuit. It argued that the good-faith exception should apply even though there was no binding judicial decision permitting warrantless GPS tracking at the time of the search. On Oct. 1, the full appeals court took the government's side. While radically expanding the scope of the good-faith exception, the court also vacated the portion of the original panel opinion that required a warrant for future GPS tracking.
Every other court of appeals to have considered warrantless GPS tracking since Jones has likewise avoided opining on whether a warrant is required, meaning the good-faith exception has become a shield against meaningful judicial review. This shirking of judicial responsibility leaves police without guidance on what the Constitution requires and people vulnerable to encroachments on their privacy. If courts never say what the Fourth Amendment requires, police will never be forced to comply with it.
The 3rd Circuit's decision only feeds the good-faith exception's malignant growth. The court held that it was reasonable for law enforcement to not seek a warrant based on a combination of outdated Supreme Court opinions about obsolete "beeper" tracking technology, the nonbinding decisions of other circuit courts, and the advice of a prosecutor, who has an incentive to approve overly aggressive police investigative practices.
The five dissenting judges excoriated this approach for "expand[ing] the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle. Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum."
If police can rely on any mushy combination of nonbinding factors to justify an unconstitutional search, the Fourth Amendment becomes immeasurably weaker. And if courts decline to even say what the Fourth Amendment means, we are left at the mercy of investigators' self-interested decisions, without the scrutiny of an independent judge.
Unfortunately, decisions like the 3rd Circuit's recent one create a climate of government impunity and weaken our system of protections against overzealous searches. In the coming months, several more appellate courts will have an opportunity to consider whether GPS evidence acquired without a warrant can be introduced at trial. And defendants in cases where courts have expansively interpreted the good-faith exception have petitioned for Supreme Court review.
In one case awaiting oral argument in the 8th Circuit, police used a battery-powered GPS tracker on a Missouri man's car for nearly two months without a warrant, cataloging his every move as he traveled around the greater St. Louis area. In another case, police used a GPS device to track a man as he traveled in Maryland and West Virginia for nearly a month, also without a warrant. After a three-judge panel of the 4th Circuit invoked the good-faith exception, the defendant petitioned the full 4th Circuit for rehearing (the court has yet to act). This kind of long-term location tracking threatens the core protections of the Fourth Amendment by exposing voluminous details of people's private lives to police scrutiny.
In these and other cases, there is still a chance for courts to get it right.
As our judicial system struggles to apply the Fourth Amendment's protections to new kinds of searches in the digital age, instituting proper safeguards against unwarranted police surveillance will become ever more important. Courts that keep contriving new ways to accommodate the police should remember that the Fourth Amendment's protections—what Justice Thurgood Marshall described as "an essential bulwark against arbitrary and unreasonable governmental intrusion"—can only erode so far. If we're not careful, some day we might realize those vital protections have withered away completely.