Numbers Tell the Story of Our Government’s Watchlisting Binge

August 6th, 2014 No Comments   Posted in ACLU Nationwide
By Hugh Handeyside, Staff Attorney, ACLU, National Security Project

The government is adding people to its already bloated watchlisting system at breakneck pace, and it's still hungry for more. That's the unavoidable conclusion from documents published yesterday in The Intercept.

Those documents vindicate our concerns and warnings about a massive, virtually standardless government watchlisting scheme that ensnares innocent people and encourages racial and religious profiling.

The documents confirm what we have long suspected: It doesn't take much to get yourself on a terrorist watchlist. The government's recently leaked Watchlisting Guidance starts with a poorly defined "reasonable suspicion" standard and then subjects it to so many exceptions and caveats as to render it virtually toothless. The unsurprising result, as is clear from these documents, is a set of watchlists experiencing explosive growth.

Here are some of the numbers that stood out for us (unless otherwise indicated, as of August 2013):

  • 1,000,000: The number of people in the Terrorist Identities Datamart Environment (TIDE). TIDE is the government's central repository of classified information that serves as the basis for various watchlists, including the master watchlist, or Terrorist Screening Database. The National Counterterrorism Center has acknowledged that as of August 1, 2014, TIDE held 1.1 million names – roughly the combined population of Wyoming and Vermont. The documents show that when the government includes people in TIDE, it seeks out and adds to the secret database information, such as photos from state DMVs, and biometric data, like fingerprints, facial images, and DNA strands.
  • 680,000: The number of people in TIDE who have also been placed on the master watchlist, which is shared with other federal agencies, state and local law enforcement, and at least 22 foreign governments. Inclusion on the master watchlist can have myriad consequences, including an inability to travel by air or sea, invasive screening at airports, denial of a U.S. visa or permission to enter the United States, or detention and questioning by U.S. or foreign authorities.
  • 280,000: The number of people on the master watchlist who have "no recognized terrorist group affiliation" – a troubling but unsurprising reflection of how loose and exception ridden the standard is for inclusion on the watchlist. People can be listed as "suspected" terrorists not because of any wrongdoing but because of unwitting associations with someone else the government deems suspect.
  • 20,800: The number of U.S. persons (citizens and lawful permanent residents) in TIDE.
  • 1,175 percent: The growth in the number of people on the No Fly List between 2009 and August 2013, when there were 47,000 people on the No Fly List.
  • 900: The number of TIDE records added or "enhanced" each day.
  • 60: The number of TIDE records deleted each day.

Here's another number to keep in mind, even though it's not referenced in the documents: 98,153. That is the population of Dearborn, Michigan, which is at the center of one of the largest communities of Arab Americans in the country. According to the leaked documents, Dearborn has more watchlisted individuals than any other U.S. city except for New York – more than Chicago (population 2.7 million), Houston (2.1 million), and San Diego (1.3 million).

We already knew that the FBI has long engaged in suspicionless assessments and ethnic "mapping" of the Arab-American community in Michigan. Now we also know that the government's watchlisting of that community is disproportionate in the extreme. In short, the government's use of watchlists is unfair, unsupported, and discriminatory.

Of course, it is impossible to quantify the stigma and loss of liberty experienced by individuals who are wrongly or mistakenly watchlisted. The plaintiffs in our No Fly List case, for instance, have been suffering the consequences of their placement on the list for years. The impact on their personal and professional lives has been devastating.

A federal judge has already agreed that the government's failure to provide our clients with a meaningful way to clear their names is unconstitutional. We will be back in court on Tuesday, arguing that there is an immediate need for a fair process.

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Border Crisis Prompting New Xenophobic Drumbeat for an Old Disgrace—Detention Camps

August 6th, 2014 No Comments   Posted in ACLU Nationwide
By Carl Takei, ACLU National Prison Project

This piece originally appeared at The National Journal.

Seventy-two years ago, U.S. military officials labeled Japanese-Americans "an enemy race." Because they were Japanese-Americans, the government locked members of my family—along with many other men, women, and children—in prison camps behind barbed wire.

That family history makes it especially painful for me to watch our country marching refuge-seeking Central American children and families down a similarly shameful path. Too often, the United States violates its principles in response to the vocal racism and xenophobia of some and the silence of too many who watch it happen.

The federal government's World War II decision to incarcerate Japanese-American families was fueled by decades of racist agitation against Japanese immigration. When the war came, some white Americans saw it as a chance to take back a country they felt was being overrun by an alien race. As farmer Austin Anson told The Saturday Evening Post in 1942, "We're charged with wanting to get rid of the Japs for selfish reasons.... We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work and they stayed to take over."

Others were quite clear about what they wanted to happen to these "Japs" once arrested. In early 1942, Nevada Gov. Edward Carville wrote to military authorities that while he was willing to accept construction of a Japanese-American concentration camp in his state, "I do not desire that Nevada be made a dumping ground for enemy aliens to be going anywhere they might see fit to travel."

Today, a similar xenophobic drumbeat is sounding against the Central American families and children seeking refuge in the United States. Rush Limbaugh recently called the children "illegal alien invasion forces." Ann Coulter accused immigration-reform advocates of "working feverishly to turn the country into Mexico." Rep. Phil Gingrey, R-Ga., a physician, asserted that the families and children fleeing violence south of the U.S. border pose "grave public health threats" to Americans. And during the now-infamous bus-blocking protest in Murrieta, Calif., one man waved a sign reading: "Murrieta is not a dumping ground for the federal government."

Of course, history never repeats itself in exactly the same way. The Japanese-Americans incarcerated during World War II were generally long-term residents and U.S. citizens. In contrast, the latest targets of this country's special blend of racism and xenophobia are new arrivals—particularly women and girls—fleeing horrific violence in Central America. According to the United Nations' Special Rapporteur on Violence Against Women, violent deaths of women in Honduras increased 263.4 percent between 2005 and 2013. And asylum requests from Honduran, El Salvadoran, and Guatemalan nationals have increased 712 percent in Mexico, Panama, Nicaragua, Costa Rica, and Belize since 2008, according to the U.N.'s refugee agency.

In Central America, gangs act with impunity. To take just one example: Ms. L, a preteen, was dragged from her home and raped by more than a dozen gang members, according to the Jesuit ministries in Honduras who work in partnership with groups assisting girls victimized by violence. After reporting the gang rape to the police, her family began to receive death threats. When a shelter declined to take Ms. L in because it could not protect her or any of the other shelter residents from gang violence, she fled the country.

Central American families need to have their claims for asylum or other legal immigrant statuses carefully evaluated in fair hearings, with counsel, before immigration judges. Indeed, the American Civil Liberties Union recently filed a lawsuit arguing that every child should receive legal representation in these hearings. Instead, growing numbers of women and children—many of whom have fled real threats of violence, sexual assault, or even death—are being locked in remote detention facilities, far from immigration attorneys, and rushed through the process. This often happens without these women and children ever receiving a chance to tell their stories to an asylum officer or a judge.

Their detention is unnecessary. People across the political spectrum have begun to express the view that alternatives to detention are more humane and effective, and far less costly.

Yet, just as the Roosevelt administration used the language of "military necessity" to accommodate the demands of anti-Japanese racists on the West Coast, Obama administration officials have requested funding for a massive increase in "family detention" of Central American parents and children. The Obama administration did so not because these young women and children pose a risk to public safety, or because such mass detention is necessary to ensure particular individuals show up for their immigration court hearings. Instead, the current administration did this to "send a message" to other Central Americans. As Homeland Security Secretary Jeh Johnson put it during a recent detention-facility tour, the existence of detention centers reserved for families with children "represents proof that indeed we will send people back" to the countries they are trying to escape.

That is a shameful message indeed—and one that future generations will rightly condemn. To stay on the right side of history, the Obama administration must halt its expansion of family detention.

This piece was originally published by The National Journal magazine online at The Next America's Perspectives page. The Next America project explores the political, social and cultural implications of the nation's ongoing and massive demographic shifts.

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Happy Anniversary, CIA! 12 Years of Lawlessness!

August 6th, 2014 No Comments   Posted in ACLU Nationwide
By Chris Anders, Senior Legislative Counsel, ACLU Washington Legislative Office

Wow. Twelve years. The time has flown by. Seems like just yesterday that the Justice Department sent over its torture memos to then-CIA General Counsel John Rizzo, ramping up a CIA torture program that horribly abused more than a hundred men, killing a few of them. No one at the CIA was ever even charged with a crime. Some agents, in fact, got job promotions.

Those initial August 2002 memos were soon followed by a flood of legal opinions designed to prop up a clearly criminal torture program.

Old history? Hardly. The torture memos were just the start of a string of scandals that has resulted in no meaningful reform of or accountability for an agency that seems to be getting a blank check – to this day. The CIA, with the backing or orders of the White House, ran a worldwide network of secret prisons where it tortured men with barbaric techniques (some inspired by the TV show 24); kidnapped people from European streets; and then reportedly lied to Congress, the White House, and the Justice Department about it.

The lawlessness continued, even after horrified Americans found out what was happening. More legal memos were written to try to keep torturing, even after Sen. John McCain (R-Ariz.)  convinced Congress to pass yet another law to stop it. Top CIA officials ordered evidence — videotapes of men being subjected to simulated drowning — destroyed before investigators could view them.

On his second day in office, President Obama ordered the CIA to close its secret prisons, banned the CIA from all but short-term transitory detention, and put the CIA under the same interrogation rules that apply to the military.

But did that stop the lawlessness? Not really. With President Obama promising to "look forwards, not backwards," CIA officials, and all Bush officials, dodged any criminal indictments, were protected from lawsuits by courts that deferred to CIA secrecy and immunity claims, and did whatever they could to get in the way of Senate investigators.

The lawlessness remains because the Constitution's system of checks and balances is broken. The president, Congress, and the courts seem unwilling or unable to hold the CIA accountable.

Incredibly, more than 200 CIA employees who were involved in the torture program are today still employed at the CIA. The acting general counsel of the CIA until this past March was the very same person who had been one of the CIA's top torture lawyers a decade ago. And in something more reminiscent of organized crime than good government, current CIA leadership met this spring with Bush-era CIA leadership to brainstorm how to undermine a Senate Intelligence Committee report on the CIA's use of torture.

The lawlessness seems to be coming to a head this year. The CIA's internal watchdog, its inspector general, just gave a report to the Senate Intelligence Committee that found that the CIA spied on the computers used by the Senate committee to investigate the CIA torture program. CIA officials created a false online identity, tracked the Senate staff's queries, and manipulated the Senate staff's files. The CIA then falsely accused the Senate staff of wrongdoing by filing a criminal referral with the Justice Department that was based on false information.

When the CIA spying was initially discovered last winter, CIA Director John Brennan publicly blasted anyone criticizing the CIA. But the CIA inspector general is now essentially saying that CIA officials spied on Congress and then lied about it.

How can the Constitution's system of checks and balances work if the CIA spies on the computers used by the very staffers carrying out the Senate's constitutional duty of overseeing the executive branch? An uncontrolled – and seemingly uncontrollable – CIA threatens the very foundations of our Constitution.

Twelve years of CIA lawlessness should be enough. It is long past time for Congress and the president to forever ban the CIA from holding anyone in its custody and running a secret prison. But President Obama must also stand up to the CIA and to John Brennan himself. Congress must make the Senate CIA torture report public and start serving as an effective check on the CIA.

No more anniversaries for lawlessness.

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The Fight for Marriage Equality: From Birth to Death and Every Moment in Between

August 6th, 2014 No Comments   Posted in ACLU Nationwide
By Chase Strangio, Staff Attorney, ACLU

After 22 years together, Jim Obergefell and John Arthur faced the devastating reality that John would not survive another year. John had been diagnosed with amyotrophic lateral sclerosis (ALS) in 2011, a condition for which there is no cure.

By June of 2013, when the Supreme Court struck down the Defense of Marriage Act (DOMA) in United States v. Windsor, the couple knew their days together would be measured in weeks, not months or years. With the help of family, friends, and a team of doctors, they boarded a medically equipped plane to Maryland and married on the tarmac of an airport there.

But when they returned home to Ohio – the state that they had called home for decades, where they built a life together and where they prepared to say goodbye to each other – their marriage was not recognized. They faced the cruel reality that when John died, his death certificate would list him as single and a blank space would follow on the line for surviving spouse. The love and legacy he shared with Jim would be noticeably empty from the last official document of his life.

Unable to fathom such a fate, the couple sued the state of Ohio.

In December of 2013, the district court ruled in favor of Jim and John, striking down Ohio's marriage bans as they applied to the recognition of out-of-state marriages on death certificates. The ruling left John's death certificate, which listed him as married and Jim as his spouse pursuant to an earlier order of the court, undisturbed. But the state of Ohio appealed, and now if that decision is overturned, John's death certificate could be amended to remove all mention of Jim and John's 22-year relationship.

The 6th Circuit Court of Appeals, which covers the states of Ohio, Kentucky, Tennessee, and Michigan, will hear argument today in Jim and John's case as well as five other cases challenging state laws that bar the recognition of marriages between same-sex couples and the freedom to marry for same-sex couples.

In the year between when many of these cases were filed and today's oral argument, some plaintiffs like Jim Obergefell have lost the love of their life while others have welcomed a child into the world. For each couple the most joyous and the most tragic of life's moments have been complicated by their home state's refusal to treat them as married or to prevent them from being married in the first instance.

Today, Jim and the plaintiffs in five other cases are calling on the 6th Circuit to affirm six district court decisions all ruling in favor of marriage or marriage recognition for same-sex couples in Ohio, Tennessee, Kentucky and Michigan.

These cases will be the third set of cases to be heard by a federal court of appeals after a string of 21 district court decisions, which all ruled in favor of marriage equality since the Supreme Court's decision in Windsor. The two other courts of appeals, the 10th Circuit and the 4th Circuit, have already upheld district court decisions on the side of marriage. We hope that the 6th Circuit will be next.

The ACLU continues to work to strengthen the unbroken line of post-Windsor decisions that has created a judicial consensus that bans on the freedom to marry and marriage recognition for same-sex couples are unconstitutional. One or more of these cases will soon be before the Supreme Court and we are optimistic that the Supreme Court will also conclude that our Constitution simply does not tolerate the discrimination that these marriage bans reflect.

With any luck that day will come soon so that Jim, the other plaintiff couples, and same-sex couples across the country will be able to navigate life's challenges and celebrations without having to worry about whether they will be treated as strangers in the eyes of the law.

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We Need Meaningful Immigration Reform, Not Just Theatrics

August 5th, 2014 No Comments   Posted in Border security
By Terri Burke, Executive Director, ACLU of Texas

We don’t have a criminal problem at the border

Since the beginning of this humanitarian crisis, elected and law-enforcement officials in the Rio Grande Valley have observed no increase in crime. These are children who are running into the arms of the Border Patrol agents. They aren’t sneaking in. They aren’t resisting arrest. They have come to escape the violence and crime in their own countries.

Our border is secure

Our border communities already face the most militarized zone in the nation, with 3,000 Border Patrol agents in the Rio Grande Valley. The border region does not need more law enforcement agents sent to the area nor does it need the Texas National Guard, whose role is especially unclear. Neither the state Department of Public Safety nor the National Guard has any authority to enforce immigration law.

Increasing, yet again, the number of law enforcement personnel patrolling our border communities only escalates the potential for violating border residents’ constitutional rights and reducing the quality of life for everyone at the border.

We need to get our priorities straight

There are only two kinds of additional boots on the ground needed in the Valley: humanitarian agencies like the Red Cross and more administrative and judicial personnel to screen these immigrants to determine whether they warrant consideration for asylum or refugee status or for U or T visas. Their welfare should be our top priority.

What does “securing the border” look like?

How you measure success matters. In most of our businesses, we set goals and establish metrics to determine success. The state should do no less. To secure the border, our nation needs legal programs that respect family reunification and more clearly hew to labor demands, among a number of other changes.

If you want real change, if you truly want to secure the border, and not just engage in theatrics, then urge Gov. Perry to send needed aid to the border, not more law enforcement.

When Walking Down the Street Is a Crime

August 5th, 2014 No Comments   Posted in ACLU Nationwide
By Chase Strangio, Staff Attorney, ACLU

When Monica Jones left her house on the evening of May 17, 2013, she expected to hang out at a local bar and restaurant and meet up with some friends. But for transgender women of color, just walking down the street can be a criminal act.

Especially in Phoenix, Arizona, where literally "any bodily gesture" can be sufficient evidence that you are intending to engage in prostitution.

When an undercover officer saw Monica Jones, a black transgender woman, walking down the street just a few blocks from her house, in an area that the officer described as being "known for prostitution," that was enough to convince him that she intended to engage in prostitution. It was on that basis that he approached and stopped her.

In April of this year, Monica was convicted of violating this overbroad and vague law. Today she appeals that conviction, and the ACLU, along with other advocacy and civil rights organizations, filed a brief in support of her appeal.

We #StandWithMonica because transgender women of color should be able to walk down the street in their neighborhoods without being arrested, or worse, for simply being themselves.

We #StandWithMonica because 47 percent of black transgender women have been incarcerated at some point in their lives.

We #StandWithMonica because in June of this year, four transgender women of color, that we know of, were murdered.

We #StandWithMonica because transgender women of color are 49 times more likely to be living with HIV than their non-transgender counterparts.

We #StandWithMonica because she is taking on great personal risk to stand up for the transgender community.

While approximately 94 percent of criminal cases are resolved with pleas, Monica went to trial, risking jail time, to tell her story and draw attention to the problem of police profiling of transgender women.

Tonight, Monica will join Emmy-nominated actress Laverne Cox onstage in Phoenix for a conversation about the criminalization of transgender women of color and visions for justice. Both Monica and Laverne are claiming space in different ways to tell their stories of survival and resistance against all odds.

Join Monica, Laverne, and the ACLU in demanding justice for transgender people. Today in support of Monica's case follow the #StandWithMonica hashtag on twitter to send the message that police profiling of transgender women of color must stop.

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The Shadow Economy of Lethal Injection Drug Deals

August 4th, 2014 No Comments   Posted in ACLU Nationwide
By Tanya Greene, Advocacy and Policy Counsel, ACLU

For all we know, the "pharmacy" might be a high school science class.

That's how a federal appeals court judge described Missouri's secretive death penalty system back in the spring.

Shady medical experiments masquerading as legal executions have gone horrifically wrong in four states already this year. During the most recent, Arizona officials shot 15 separate doses of experimental drugs into Mr. Joseph Wood. This bungled execution lasted for nearly two hours, during which Mr. Wood gasped for breath 660 times and then finally suffocated to death.

These botches had some common themes: drugs without a disclosed manufacturer, unknown doses, and unqualified medical supervision.

The government of Missouri knows this. Governor Jay Nixon has the opportunity to make sure that the execution scheduled for 36 hours from now in his state does not suffer from this same irresponsibility. He should issue a stay.

At the very least, to carry out an execution, a state should be able to tell us the name and manufacturer of the lethal injection drugs and the drugs' expiration dates. A state should also be able to provide proof that the drugs are FDA approved. And a state should be able to show the public that executioners are medically qualified to administer the drugs.

Missouri has done none of this. Neither did the four other states where medical experimentation went horribly wrong this year.

What we do know about Missouri's execution system should scare us. In order to dredge up drugs, Missouri gave one of its corrections officers $11,000 in cash and sent him over the border to Oklahoma. The officer returned with the drugs, but he couldn't say whether they were pure or whether they'd been stored or transported properly.

When execution teams are buying drugs with cash, we should question why they've taken to the shadows.

The answer is that the death penalty simply has no place in this country. Most pharmaceutical companies have refused to provide their drugs to be used in executions. Other methods of state-sponsored killing have been deemed too barbaric and archaic. And many doctors won't execute, because it violates their code of ethics to do no harm.

So the whole execution system has been driven underground. States are scrambling to find whatever drugs they can, never mind the fact that they might not work or have been long expired. Missouri has even taken to paying execution teams in cash, under the table – one more part of the dirty business of lethal injection.

Mainstream America wants this barbaric practice off the books. And certainly these botched methods of carrying out the death penalty are far from constitutional. States should heed this, instead of hiding in a cash economy, carrying out illegal medical experimentation on human beings.

Missouri has gotten plenty of warning. Governor Nixon should set his state apart from the secrecy and capriciousness that have characterized four irresponsible, inhumane and unconstitutional botches this year alone. It's time to order a stay.

Sign our petition calling for a nationwide suspension of executions. No government should experiment with human life.

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Their Lives Depend on It: Every Unaccompanied Child Needs a Lawyer

August 4th, 2014 No Comments   Posted in ACLU Nationwide
By Layla Razavi, Regional Advocacy and Policy Counsel, ACLU

At first glance, the kids I met at the Ft. Sill military base in Lawton, Oklahoma, seemed like ordinary teenagers. They wore friendship bracelets they'd made in arts and crafts. Boys had baseball caps and girls had brightly colored nail polish with tiny flowers painted on them. But, one by one, they started to share their stories, and it became clear that their lives are anything but ordinary.

One girl said she never attended high school because it was far away and would have required her to take a bus through an area patrolled by gangs that rob, harass, and intimidate anyone who passes through. Another boy told me that he enrolled in a high school 45 minutes away, but after he was robbed for the second time by a gang that kept showing up on school property, his mother arranged for him to leave. Each of the kids I spoke with said these gangs are made up of grown men in their thirties and that they act with complete impunity.

One teenager, Reyna*, said she was waiting to be reunited with her big sister in Washington, D.C. Poised and confident, Reyna wants to study engineering. But she broke down in tears as soon as we asked her about home. With only 20 or 30 minutes to meet with each kid, we were barely scratching the surface of their experiences; trauma is unlikely to be shared in such a hurried window. But each of these kids found it safer to make a 2000 mile journey alone than stay home.

Reyna, like all of the kids at Ft. Sill, is in limbo. They are waiting to be reunited with relatives in the United States: an older sister in Virginia, an uncle in New York. Once they are in the custody of a relative or sponsor, they will be required to appear in immigration court to argue against their own deportation. The only way they can stay is by making a case in front of a judge that shows they are at risk of being persecuted or killed, all while a federal prosecutor argues against them.

Once Reyna gets to her sister's house in D.C., the chances that she will find a qualified attorney to help her navigate our complicated legal process are slim – nonprofit attorneys are strapped for funding and private attorneys are very expensive, especially for asylum cases. The chances that she will feel safe and empowered to reveal her story in a courtroom full of strangers and adults in a foreign country are even slimmer.

Wonderful pro bono attorneys and faith organizations in this country help refugees and people seeking asylum every day. But our government cannot leave their fate to luck and continue to shirk its responsibility to ensure that these kids receive a fair process. Up against a trained government prosecutor, every child in deportation proceedings needs an attorney. For children like Reyna, their lives depend on it.

Call on President Obama to provide legal representation to all children facing deportation.

*Name has been changed to protect the identity of the person

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New Technology Renews Old Fears of Manipulation and Control

August 1st, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

In the first half of the 20th century, Americans gained a new awareness of the malleability and manipulability of the human mind, and the result was a wave of concern over “propaganda” and other techniques of influence. Today we may be seeing a new wave of similar fears as we begin to wonder whether the ways we use and rely upon technology today are making us susceptible to new, dangerous forms of manipulation.

The first wave, in the 20th century, resulted from a number of factors. These included the discovery of a passionate, irrational unconscious by Freud and Jung, and a reaction against the seemingly mindless march toward slaughter in World War I, both of which fed into a broader disillusionment with the enlightenment rationalism of the 19th century and its faith that humans were ultimately orderly, rational beings. Other factors included the increasingly modernized advertising industry and its surprising success in manipulating consumers, and later the use of propaganda techniques by the fascists and communists in Europe.

The sudden awareness of human vulnerability to manipulation was embraced by some, but also sparked fears that the government would use it to control the beliefs of the population, rather than reflect those beliefs as it should in a democracy. Edward Bernays, considered the “father of public relations,” wrote a highly influential 1928 book entitled Propaganda, in which he argued that human manipulability was a good thing . He wrote,

The conscious and intelligent manipulation of the organized habits and opinions of the masses is an important element in democratic society. Those who manipulate this unseen mechanism of society constitute an invisible government which is the true ruling power of our country. We are governed, our minds are molded, our tastes formed, our ideas suggested, largely by men we have never heard of.

Bernays had the unrestrained faith in expertise and government that was characteristic of the era’s Progressives, but many were not so sanguine. In the first decade of the 20th century, fierce controversy and opposition was sparked by the hiring of press agents by government agencies (first by the Panama Canal Commission and then by the Forest Service and other agencies). In 1913 Congress banned the executive branch from using funds to employ “any publicity expert.” Later that decade Congress also enacted the Anti-Lobbying Act of 1919, which barred agencies from using funds “intended or designed to influence in any manner a Member of Congress to favor or oppose, by vote or otherwise, any legislation or appropriation by Congress.”

These acts were largely unsuccessful. During World War I, the government created a Committee on Public Information, an agency founded for the explicit purpose of making the U.S. public enthusiastic about entering the war through propaganda techniques. In the 1920s, after public sentiment shifted toward the view that involvement in the war was a mistake, many viewed this agency as part of the problem.

Concern and controversies were still roiling after the Second World War. In 1947, for example, the Pentagon launched a launched a large-scale lobbying and public relations effort on behalf of Truman’s proposal to institute the draft, prompting an investigation into the issue by a House subcommittee, which charged in its report that the War Department and its employees had “gone beyond the limits of their proper duty of providing factual information to the people and the Congress and have engaged in propaganda supported by taxpayers' money to influence legislation now pending before the Congress.”

In 1948, Congress enacted the Smith Mundt Act, which authorized the State Department to work to influence the attitudes and opinions of populations overseas via the Voice of America—but also banned the use of funds “to influence public opinion in the United States.”

A new wave of concern?

Concern over manipulation by government and companies has never really gone away, with fresh controversies emerging periodically, but today we may be seeing a whole new wave of concern—and of reason to be worried. There have been several stories in recent months highlighting ways that today’s technology could be used to manipulate and control. Foremost among them was the uproar over “experimentation” by Facebook, which manipulated the “mood” of posts seen by some users to see if it affected the happiness or sadness of the content posted by those users. An echo of the controversy took place a few weeks later when OKCupid wrote about its own experiments on users.

Not long after the Facebook story broke, Glenn Greenwald reported that the British spy agency GCHQ had developed a suite of methods and tools for manipulating internet content, such as spreading disinformation, manipulating the results of online polls, inflating pageview counts, and amplifying or suppressing content on YouTube.

The Facebook revelation sparked an immense amount of discussion, much of it focused upon things like informed consent, ethical oversight, Institutional Review Boards, and the potential effects on particular people such as depression sufferers (for example see these critical pieces and this defense of Facebook which, though ultimately unpersuasive, does a clear job explaining how Facebook filters content). But the most trenchant analyses looked past the ethics of experimentation to broader questions: what does this incident tell us about the growing power of institutions to manipulate and control individuals?

As Kate Crawford pointed out in the Atlantic,

some truly difficult questions lie in wait: What kinds of accountability should apply to experiments on humans participating on social platforms? Apart from issues of consent and possible harm, what are the power dynamics at work? And whose interests are being served by these studies?

Putting her finger on what I think was the most significant thing about this story, she writes that it gives us a glimpse of “how highly centralized power can be exercised.”

Similarly, Zeynep Tufekci, writes,

these large corporations (and governments and political campaigns) now have new tools and stealth methods to quietly model our personality, our vulnerabilities, identify our networks, and effectively nudge and shape our ideas, desires and dreams. These tools are new, this power is new and evolving…. I identify this model of control as a Gramscian model of social control: one in which we are effectively micro-nudged into “desired behavior”…. Seduction, rather than fear and coercion are the currency, and as such, they are a lot more effective.

The new wave of consciousness over our potential to be manipulated and controlled may also include the network neutrality issue, which is in great part about such fears.

There are two lessons we could learn from looking back at the earlier history of such fears. One could be that we’ll get over this as we did fears around advertising manipulation, and today’s new concerns will come to seem quaint as do some of the old ones. But a better lesson, I would argue, is that the fears that were identified last century were for the most part entirely legitimate and well-founded, that “techniques of influence” have been abused in many ways—not least by playing a key role in some of the greatest catastrophes of the 20th century—and now we have a new reason to worry and to insist upon checks and balances as our government uses technology in new ways, and as we allow manipulable technologies like Facebook to become ever-more-central to the way we communicate, gather information, and relate to others.

What Crack Cocaine Teaches Us About NSA Reform

July 31st, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Laura W. Murphy, Director, ACLU Washington Legislative Office

This piece originally ran at POLITICO Magazine.

This week, Patrick Leahy, the Democratic senator from Vermont, introduced a revised version of the USA Freedom Act, a bill to finally start pulling the reins on America's out-of-control surveillance state. The ACLU supports the measure, though it is not a perfect bill. To understand why, it helps to think about something seemingly unrelated: crack cocaine.

During the first term of President Ronald Reagan's administration, hysteria over the crack "epidemic" led Congress to enact strict sentencing laws that punished crack offenses much more severely than powder cocaine—at a 100 to 1 ratio. Two pennies worth of crack would land you as much jail time as half a kilo of powder.

The ACLU thought that was wrong, and so started fighting that fight in the early 1980s. It took us more than two decades, but in 2010 we finally had a compromise reform bill on the floor that actually stood a shot at passage. Unfortunately, it didn't eliminate the disparity altogether, but only reduced the ratio to 18 to 1.

Reform advocates were at a crossroads. Maximalists urged opposition despite the fact the bill would, in a very real way, make life better for thousands of people and begin to reduce the severe racial and ethnic inequality in our prison system. Pragmatists, fearing that opposition to the bill would preclude any reform at all, urged support.

It was a painful compromise, but the ACLU ultimately supported the bill. It passed, astoundingly, with overwhelming support in both chambers.

And then something amazing happened. Conservative lawmakers, concerned about government waste, increasingly came to the table to support criminal justice reform. Liberals realized they could vote their conscience on criminal justice without accusations of being "soft on crime." It has not been easy and there have been many steps backward, but in recent years, we've seen greater public opposition to mandatory minimum sentences and real movement on things like reducing penalties for low-level drug offenses.

Which brings us to the USA Freedom Act. It's not a perfect bill. As with virtually any law, there are ambiguities in the text, which, in this case, could be read abusively to allow the collection of a large amount of sensitive information on many innocents.

But it is a vast improvement on the legislation that passed the House in May, which was weakened at the last minute, leading many privacy advocates and technology companies to pull their support. Leahy's bill would reduce the overall amount of private information being collected by the National Security Agency and other government agencies, which would, much like the Fair Sentencing Act, pay real privacy dividends for real people.

Passing the USA Freedom Act would also present a clear inflection point in the surveillance debate. For almost 20 years, going back even before the Patriot Act to a 1996 law passed in the wake of the Oklahoma City bombing, the freight train has resolutely barreled toward unchecked surveillance authority. Here, the proponents of surveillance reform who pulled support can take a lot of credit for the progress made in the Senate, which will give them real leverage in the next fight.

In Washington, progress begets progress. It's exceedingly rare that a maximalist strategy on any issue—from reproductive freedom and LGBT rights to immigration reform and pay equity—succeeds in creating immediate, dramatic change. To give just one example, the Civil Rights Act of 1964, often and rightly seen as the watershed in the movement, wouldn't have passed Congress without the groundwork laid by the weaker civil rights acts of 1957 and 1960.

That said, as with all of these examples, it's crucial not to rest on any laurels. Not only should Congress pass the USA Freedom Act, but much more needs to be done to address the erosion of checks and balances on government surveillance and other national security authorities.

Specifically, Congress must next tackle the NSA's use of Section 702 of the Foreign Intelligence Surveillance Act to scoop up vast quantities of emails, phone calls, text messages and other international communications of individuals suspected of no wrongdoing, and then search them without a warrant. Congress and the president must also reform Executive Order 12333, the Reagan-era measure that governs the collection of intelligence overseas. As some have argued, the significant power claimed under 12333 may be an even greater threat to America's democratic institutions than the programs we've learned about in the past year.

Despite many more battles to be fought on surveillance reform, we must seize the opportunity before us. Since the tragic events of Sept. 11, 2001, the NSA's exponential surveillance buildup seemed like something huge and seemingly unstoppable—driven resolutely forward by fear, congressional and executive branch support, unlimited funding, voter inertia and the shroud of secrecy. But right now Congress has powerful legislation that can chart us on a new course. The oft-heard saying "a journey of a thousand miles begins with a single step" applies here. That first step begins with Congress passing the USA Freedom Act.

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