Myriad Genetics Relents on Gene Patents, But Will the Patent Office Stop Issuing Patents on Products of Nature?

February 12th, 2015 No Comments   Posted in ACLU Nationwide
By Sandra S. Park, Staff Attorney, ACLU Women's Rights Project

It looks like the courts have finally put an end to Myriad Genetics' attempts to monopolize our genes.

Following decisions striking down its gene patents from the U.S. Supreme Court, a Utah federal district court, and a federal court of appeals, Myriad announced that it wanted to resolve lawsuits against seven other genetic testing laboratories, which would effectively end its longstanding campaign to exclusively control patients' access to their own genetic information.

But a central question remains: Will the U.S. Patent Office listen to the courts and enforce the ban on patenting products of nature? Or will it revert back to granting patents that can prevent scientists from working with basic building blocks of nature, as urged by industry groups?

Based on how the controversy has played out thus far, the industry groups are gaining ground.

On June 13, 2013, the U.S. Supreme Court unanimously ruled that human genes cannot be patented, in a case the ACLU brought on behalf of 20 medical organizations, geneticists, women's health groups, and patients. The court's decision invalidated key patent claims owned by Myriad Genetics on the BRCA1 and BRCA2 genes. Because certain mutations of these genes are related to hereditary breast and ovarian cancer, it can be vital for patients to obtain genetic screening in order to make informed medical decisions. But Myriad used its gene patents for 15 years to stop all other labs from offering clinical testing of the genes to determine cancer risk, even when other labs could easily do so using different testing methods and charging lower prices. As a result, it earned roughly $2 billion in revenue from test sales.

On the same day the Supreme Court issued its decision, five labs announced that they would begin providing testing to patients. But in an attempt to hold on to its lucrative monopoly, Myriad brought suit in Utah against several labs, asserting other patent claims that were not challenged in our case, but that were clearly invalid based on the reasoning of the Supreme Court.

That litigation wound its way through the courts over the last year, and Myriad lost at every turn. First, the Utah federal district judge denied Myriad's request to shut down the BRCA testing services of one of its new competitors in March 2014. The judge ruled that Myriad failed to establish that it was likely to win its lawsuit, because of substantial questions about the validity of its patent claims.

Myriad then appealed to the U.S. Court of Appeals for the Federal Circuit, which reviews patent appeals from across the country. We filed amicus briefs, urging it to apply the Supreme Court's case law prohibiting patents on products of nature, laws of nature, and abstract ideas. In the opinion handed down in December, the court did just that. The court chose not only to evaluate Myriad's likelihood of success, but also definitively found that the company's patent claims were invalid under Section 101 of the Patent Act because they sought exclusive control over products of nature and abstract ideas.

This decision sharply contrasts with the 2011 and 2012 decisions of the Federal Circuit in the original Myriad litigation, where the court split 2-1 to uphold Myriad's gene patents. The latest unanimous ruling demonstrates an important shift. By stepping in to shield what properly belongs in the public commons, the Federal Circuit sent a strong message to Myriad and other patentholders: Patents can't be used to lock up products of nature, such as our genetic information. With that loss, Myriad settled six cases in recent weeks, promising not to sue again based on these patents.

Initially, the U.S. Patent Office seemed to hear the courts' message. For decades, it had issued gene patents to those who were first to "isolate" a gene, giving patentholders like Myriad the ability to sue others who dared to examine genes we all have. But last March, it issued new guidance to patent examiners about how to review patent applications that involve products and laws of nature in light of the Supreme Court's decisions in Myriad and another case called Mayo. It warned that isolating a natural thing (like removing naturally occurring DNA from a human cell) does not automatically create an invention. It also said that DNA claims like those asserted by Myriad in the Utah litigation were invalid. While we and other scientific associations and patient advocacy groups suggested changes to the guidance, we commended the Patent Office for making vital progress in ensuring that patents are only approved for true inventions.

But then the Patent Office backtracked.

In response to severe criticism by industry groups, patentholders, and patent attorneys, the Patent Office issued new guidance in December that watered down the standard for determining whether something is an unpatentable product of nature. It said that differences in structure or function could allow companies to patent things based in nature. Under this test, if a surgeon removed a kidney from one's body in order to transplant it, the surgeon could argue that she should be able to patent it because it no longer has the same structure as in the body since its blood vessels were cut. The kidney, of course, would be intended to function just as it has prior to being removed in the body that receives it.

The Supreme Court has long rejected this view. For example, in 1931 the court said that a fruit treated with a preservative in its rind could not be patented, because while it has a different structure, its uses are still the same – to be eaten. The applicant could have sought a patent on a new preservative it developed, but not on the fruit itself.

The public has an opportunity to weigh in on this latest guidance. The Patent Office is seeking comments until March 16. In its next revision of the guidance, the Patent Office must require differences in both structure and function when assessing patent applications. Otherwise, the public will bear the consequences when another company, like Myriad, wields its exclusive rights on nature to stall medical and scientific advancement.

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Annotated: Obama’s Proposed Authorization for the Use of Military Force Against ISIS

February 11th, 2015 No Comments   Posted in ACLU Nationwide
By Zak Newman, ACLU Washington Legislative Office

President Obama just sent Congress his proposed legislation to authorize his use of military force against ISIS. An Authorization for the Use of Military Force against the group is long overdue given that the president has been conducting airstrikes against the group since last summer. While the White House has taken a constructive step by finally engaging Congress on the issue, the proposed text would provide the executive yet another dangerously overbroad war authorization. I’ll show you what I mean in the annotations to the president’s text below.

If Congress grants authority for the use of force against ISIS – as the Constitution requires for any use of force – the authority must be significantly more limited and more specific than the authority the administration has proposed.

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Thanks to President Obama, My American Dream Won’t Become a Nightmare

February 11th, 2015 No Comments   Posted in ACLU Nationwide
By Anita Shalwani

This is my family's American Dream story. I am a divorced, single mother, and an undocumented immigrant. I have resided in the United States for almost 30 years.

We came from Pakistan, a country known for its government abuse, torture, and violence against women. My father, a customs agent, and my mother, an elementary school teacher, knew that the future of their two daughters in Pakistan held limited opportunities. So when I was 3 years old, my parents gave up everything and moved to the U.S. in search of a better life for their children.

We first arrived in California, but I grew up in Florida. While many of my friends went on vacations with their families, shopping trips with their mothers, and sports events with their fathers, I grew up seeing my parents work seven days a week to make ends meet. Yet, my siblings and I understood that these were necessary sacrifices for our new life as immigrants. However, I never once thought of myself as undocumented.

It was not until I was 16 years old and decided to obtain a driver's license that I first encountered my undocumented status. I did not understand why I was unable to obtain a license and live a normal life like my friends. However, once I came to the realization of my true status, or lack thereof, I took action. I enrolled at Broward College when I was 17 through the dual enrollment program – which allows eligible high school students to simultaneously attend college part-time – and continued to work two jobs. I applied for various scholarships and even obtained a Tax Identification Number so that I could work and help support my family. Similarly, my brother earned his bachelor's degree at Broward, and my sister completed a certificate program from the University of Miami, both paying for their tuition themselves. They are now both married to U.S. citizens and are current lawful permanent residents.

However, in early 2012, my life changed immeasurably: I became a mother. My daughter was born with a cleft palate inside of her throat, which affects her hearing. She's had hearing tubes placed with a minor outpatient surgery and is scheduled to undergo another surgery within the next couple of months. Monday through Friday, I would wake up at 4 a.m. to take my daughter on a two-hour bus ride to her day care, commute to work, and then get home at 8 p.m. I constantly worried about my ability to support my daughter and my lack of a stable mode of transportation. Would I be able to find and afford the kind of medical care my daughter needed? If my undocumented status became known, would I be deported and separated from my daughter?

The president's Deferred Action for Childhood Arrivals program (DACA) gave my daughter a second chance at life. I was at the surgeon's office for a pre-operation appointment for my daughter, who was 6 months old at the time, when President Obama made the announcement in 2012 about the new program. I cried in the exam room when I got the call from an attorney I knew. To know that I would finally be able to provide a better life for my daughter was an immense relief. In my home country, doctors do not visit or conduct surgeries unless the full payment has first been made, no matter how deadly the case. I know that I would not have been able to find the kind of medical care that my daughter needs.

When the president announced the Deferred Action for Parental Accountability Program (DAPA) in November 2014, I felt like I would no longer have to be scared of my own shadow. The thought that, even though temporary, I could spend a few years not worrying about losing my daughter or being deported was an exciting moment.

My mother also qualifies for the DAPA program. I currently hold a work permit through DACA, but I too qualify for DAPA because of my daughter. I am grateful that my mother and I can qualify for relief after all the struggles we faced throughout the years.

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ACLU to UN: Encryption is Not A Problem to be Solved, But a Crucial Tool For Freedom and Security

February 11th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project

A few weeks ago, a U.N. Special Rapporteur solicited comments for a report on the relationship between free expression and the use of encryption and anonymity online. The report that he is writing will be submitted to the Human Rights Council in June and could help shape the international discussion surrounding the role of encryption and anonymity today.

Yesterday, we submitted our comments addressing both of those extraordinarily significant and timely topics.

We made two points that we think are critical:

  1. We explained that encryption and anonymity are the modern safeguards for free expression. Without them, online communications are effectively unprotected as they traverse the Internet, vulnerable to interception and review in bulk. Encryption makes mass surveillance significantly more costly, and anonymity allows dissidents, whistleblowers, and human-rights defenders to freely express themselves, organize, and expose governmental abuse without fear of retribution.
  1. We argued that strong encryption is essential to cybersecurity. You won’t hear this point addressed at any length by the FBI or others pushing for “backdoors” in the encryption that secures the Internet. But the point could not be more important—without strong encryption, we would be essentially defenseless against the increasingly regular and devastating cyberattacks that officials have warned us about.

What the FBI and others have focused on, instead, is their claim that encryption makes surveillance harder.

As we explain in our submission, there is an unavoidable respect in which that might be true: securing our communications with encryption necessarily secures them against everyone—against democracies, oppressive regimes, and criminal hackers alike. But the debate over encryption is simultaneously about much less and much more: much less because encryption poses nothing like the existential threat officials have cautioned, and much more because the proposals offered thus far would not simply trade a little security for a little surveillance. Rather, they would wholly subvert our security by sacrificing our best defense against the growing threat of cyberattack: strong encryption.

In other words, the security that encryption provides is not a problem to be solved, but rather the solution (or at least a critical part of one) to a looming disaster. This is so for several reasons.

First, law-enforcement authorities are now operating in a “golden age of surveillance.” While technology promises to secure the content of our communications, it has at the same time made our lives more transparent to law enforcement than ever before. With little effort, police forces can now determine a suspect’s exact location over a period of months, his every confederate, and every other digital fingerprint he leaves when interacting with technology. Federal, state, and local law-enforcement authorities in the United States have eagerly embraced these unprecedented surveillance capabilities. The security that encryption provides must be judged not in a vacuum, but in the context of the pervasive surveillance enabled by our increasingly digitized lives.

Second, prohibiting technology companies from offering backdoor-free communication services would do little to aid in the most important investigations. Sophisticated criminals and terrorists already have access to a wide array of encryption technologies that do not rely on intermediaries like Apple or Google. The primary effect of preventing Apple and Google from offering their own backdoor-free encryption, therefore, would only be to make everyone else less secure.

Third, for those who do pose serious threats, governments often have other tools at their disposal. For example, where the NSA cannot crack the encryption used by its targets, it circumvents it in other ways. The FBI, too, has tools that allow it to remotely hack into its targets’ computers and surreptitiously log passwords or gain access to private data. Those methods generally have the virtue of being targeted in nature. In other words, they do not undermine the security of everyone in order to monitor the few.

Proposals to deliberately weaken encryption must be recognized for what they are: efforts to prioritize surveillance over cybersecurity. The balance should come out exactly the other way. In recent years, there have been major hacks of U.S. government agencies, educational institutions, and private corporations. Tens or hundreds of millions of individuals have had their private data compromised. Major companies have endured unprecedented intrusions into their systems. And even the government has seen sensitive military information stolen. Virtually every high-level intelligence official in the United States has identified cyberattacks as the most serious threat to the nation’s security.

Strong encryption is our first line of defense against that threat. Weakening that encryption would make us all—private citizens and companies alike—more vulnerable to attack. Backdoor access may make law enforcement more efficient, but it would do so only at the expense of everyone’s security.

Would You Like Some (More) Sexism With That?

February 10th, 2015 No Comments   Posted in ACLU Nationwide
By Galen Sherwin, ACLU Women's Rights Project

There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.

In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.

Men Can Lactate Too

The aspect of the case that caught the most attention is the statement that firing someone because they are breastfeeding is not sex discrimination because men can lactate.

@galenleigh I'm looking at 8th's Ames decision and can't see where "because men can lactate" is mentioned. Help?

-Jamie McCarthy (@jamiemccarthy); 4 February 2015 2:25 pm

Some of the initial reporting on the story, including a Rawstory article which was widely picked up, missed that this was part of the trial court decision dismissing Angela's case, suggesting that this it was the 8th U.S. Circuit Court of Appeals or even the Supreme Court that said this—thus leading to understandable confusion.

As a Snopes article correctly points out, the "men can lactate" finding was not mentioned in the 8th Circuit's ruling upholding the district court's dismissal of her case. Rather, the appeals court agreed with the district court that Angela had not been forced to resign, completely ignoring the lower court's outrageous statements regarding the "gender neutral" discrimination Angela was subjected to – including the ruling that discrimination based on breastfeeding is not sex discrimination. The Supreme Court declined to take up her case, leaving both lower court decisions in place without weighing in on their reasoning.

But the Snopes piece also minimizes the significance of the district court's statement, concluding that "this was not the primary basis for the court's decision." It is true that this comment was in a footnote, and that it was but one of the many reasons the court gave for dismissing her case. But it was still one of the reasons the court gave for its ultimate determination that Angela did not face sex discrimination.

Here's exactly what the trial court said:

[L]actation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production…. Accordingly, lactation is not a physiological condition experienced by women who have recently given birth.

As Amanda Marcotte wrote on Slate, "The fact that the original court latched onto such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling."

She's right. It only adds insult to injury that the court came up with this novel argument all on its own.

"Just Go Home And Be With Your Babies"

The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."

It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.

In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."

Waiting Three Days to Pump – Not Intolerable?

The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."

Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection. And while some of the facts were disputed, that's exactly why the district court should have let her case go to trial. Instead, both the district court and the appellate court failed to recognize that a reasonable woman might consider this situation intolerable. As one blogger put it, "I wish the judge—any of them—had put him or herself in Ames' nursing bra."

Angela's case is an example of how the lower courts systematically found ways to ignore blatant sex discrimination – even in the face of a smoking gun comment like "just go home to be with your babies." And although the Supreme Court declines cases all the time, this still adds to the overall message that even a case so rife with sex stereotypes is hardly worth the courts' time.

As I wrote in my original post:

Angela's case shines a harsh light on the multi-layered workings of structural discrimination: Workplace policies that don't make space for the realities of pregnancy and motherhood, employers' entrenched sex stereotypes and implicit bias, and courts that – despite decades' old legal protections – still manage to turn a blind eye to the pervasive discrimination faced every day by working women.

In other words, the courts have dealt Angela an injustice on top of an injustice, with a huge extra serving of sexism on top.

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Et Tu, Detroit?

February 10th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

Senator Edward Markey (D-Mass.) has again obtained and released information about the privacy practices of private companies in a sensitive area, this time in the form of a report on the practices of automobile manufacturers.

According to the report, not only are local police departments, federal agencies, phone companies, advertising companies, and map app providers collecting customers’ location data, so are the automobile manufacturers. One might think that the automakers would stick to their core competency of making cars, but apparently, like everyone these days, many of them are eager to get into the game of data, data, data. And so far, the marketplace has not made it possible to use location services without giving up a lot of privacy. There is no reason we can’t have our cake and eat it too, here—cool services, and reasonable protection for privacy.

The main privacy-related takeaways from the report are:

  • Most carmakers today are including in their vehicles “a range of navigation, telematics, infotainment, emergency assist, stolen vehicle recovery, and event data recording systems that have the ability to record driving history information.”
  • At least seven manufacturers reported collecting information on drivers’ geographic location. The report does not name the manufacturers. (It does say that Honda, Porsche, and Mercedes-Benz refused to provide information in response to this question, and that Tesla, Aston Martin, and Lamborghini didn’t respond to the senator at all. I’m inclined to assume the worst of companies that refuse to cooperate with this kind of inquiry.)
  • Two automobile industry associations have adopted voluntary privacy principles, but they are of little use. First of all, they’re voluntary—and it’s not clear to what extent market pressures will ensure compliance. Second, they're weak, for example allowing collection “only as needed for legitimate business purposes,” which as far as I can tell would still allow for any use of data that makes a company money. The voluntary guidelines also suggest that companies give consumers “choice” over whether some data is shared—but that choice only extends to “sensitive” data shared “for marketing purposes.” And the guidelines recommend no choice at all over whether the data is collected and stored by the car companies in the first place, which is the real privacy pain point. Among other things, data stored by a company can be demanded by government agencies.
  • Only two manufacturers out of the 20 contacted said that data collection or transmission can be disabled with no loss of functionality, with four others saying it can be disabled by turning off a feature or service.
  • Notice to customers of these practices, where there is any at all, typically comes in the form of fine print buried in owners’ manuals or terms and conditions (which must be accepted). Customers should never be tracked without their consent—but you can't consent to something you aren't aware of.
  • The security situation with regards to wireless car services is a mess, according to the report, which found that most cars on the road are vulnerable to hackers, who in many cases could interfere with critical safety systems such as a car's steering and brakes. I’ve written about this issue before (here and here), but the report contributes valuable new information to our understanding of the scope of the security problem.

Our cars are increasingly computers on wheels, and that is opening the gates to all the privacy and security issues that other computers are susceptible to. It’s great to see at least some members of Congress making use of their powers to shine light on the lightning-fast evolution of technology and consumer privacy.

Solitary Confinement Is Not The America I Believe In

February 9th, 2015 No Comments   Posted in Prison Reform
By Ellen Trinklein, Communications Intern, ACLU of Texas

Rogelio Baca stands in his cell in the administrative segregation wing of the Estelle Unit in Huntsville.

Allow me to paint a picture for you of a small room, only 60 or 70 square feet large. Inside this room, a bed, toilet, and sink are nailed to the cement floor. Surrounding them are four windowless, cement walls, all lit by an angry fluorescent light that never goes off. Living in this cell, it is common to go weeks without seeing another person’s face – only their hands as they slide masses of unidentifiable food under the door. Yet it is not quiet. In a constant symphony of the crazed, the people next to this cell bang and bang on their doors, yelling and screaming and smearing feces on their faces.

This is the sad reality of solitary confinement in Texas today.

It is not a reality that fits well into the America that I have been told about, and not one I like to consider. America, as taught to me and my peers in history classes growing up, is a country that values freedom, family, and the opportunity for self-betterment. It should, supposedly, give everyone the chance to become a valued member of society. Yet the above image shows an element of the Texas jail system that is a disgrace to everything our country – and the state of Texas – claims to stand for.

Here are the facts, according to a report released by the ACLU of Texas and the Texas Civil Rights Project: In Texas, 6,564 people live in solitary confinement. Of these, 33% are in jail for non-violent crimes due mostly to gang affiliation, even if they are low-level or inactive members. The average length of stay is 3.7 years, at which point most inmates have developed psychiatric symptoms such as hallucinations and physical outbursts or lost their ability to interact with other human beings.

A Solitary Failure: The Waste, Cost and Harm of Solitary Confinement in Texas (Report, February 2015)

Inmates in solitary confinement are not allowed to try to improve themselves. They are not allowed to get treatment for mental illness, addiction, or anger management. They can’t even attend religious services. One man cried on a medical trip to Galveston because it was the first time he’d seen the sun in years. Many are driven to suicide. Is this the point of jail, or is this just torture?

Solitary confinement isn’t just bad for prisoners. It is bad for all of us. Most violent crimes against guards come from those living in solitary confinement. When inmates from solitary are released, they are often sent straight back into society, where they are 25% more likely than other prisoners to commit crimes again. This is not the kind of person I want moving into my neighborhood, and yet we Texans pay $46 million a year for this program that does not work.

The good news is that some states are finding ways to remove solitary confinement from their jails. In the past five years, Maine, Illinois, Colorado, Mississippi, New York, and California have taken steps to vastly reduce such forms of punishment to great success. They are saving money, making their jails and neighborhoods safer and treating their prisoners with the decency all humans deserve. It is high time that Texas do the same. We should care about the livelihoods of those we send to prison and give them a chance to return as useful and safe members of society. If we can’t do that, we should at least care about the safety of our neighborhoods and the correct use of our tax money.

Before becoming an intern at the ACLU, I was content to ignore the fact that the state and country in which I am so proud to live sanction such draconian measures. But we must confront the facts: it does. Now, we need to start considering what our use of solitary confinement says us as Texans and Americans. Let’s end a form torture that helps neither our prisoners, our guards, nor our communities. Let’s be people who act on the values we so proudly teach our children. Let’s end the use of solitary confinement.

Ellen Trinklein is a communications intern at the ACLU of Texas’ home office in Houston, where she’s pursuing B.A.s in German Studies and Policy Studies at Rice University.

This Prisoner’s Note Isn’t From Some Dystopian Dictatorship. It’s From Texas.

February 9th, 2015 No Comments   Posted in ACLU Nationwide
By Amy Fettig, ACLU National Prison Project

Every day from dusk to dawn there's noise, banging, clanking, yelling, screaming. Everyday someone is getting hurt or hurting themselves. Everyday there's fire and floods and complete chaos & hate…Every day is a challenge here. A challenge against insanity.

This sounds like a dispatch from a war zone or a maybe a line from some post-apocalyptic science fiction movie, but it's actually the description of a typical day in solitary confinement for Alex, a prisoner in Texas.

In a groundbreaking new report by the ACLU of Texas and the Texas Civil Rights Project, "A Solitary Failure," we hear directly from Texas prisoners like Alex in solitary for the first time. The reality is grim. On any given day there are over 6,000 Texans in solitary. Texas locks more people in solitary confinement than 12 other states combined. Prisoners are forced to live in conditions that would break most human beings. The report shows that many of them become broken as a direct result of being in solitary.

It isn't hard to figure out why, when you know the dehumanizing conditions Alex lives in. His barren, windowless cell is the size of a bathroom. When he spreads his arms, his fingertips almost graze the walls. His cell door is made of solid metal with a slot for a food tray. Two thin slits also adorn the door, so officers can see him. Weeks pass when Alex doesn't even see another person's face or look another human being in the eyes. He hasn't seen the stars in 10 years.

Alex would like to educate himself, get counseling for the abuse he suffered as a child, and deal with the addictions that lead him to prison before he returns to society. But in solitary, all such programming is forbidden. Unless policy changes are made in Texas, Alex is likely to return to the community directly from his solitary cell. We know that direct release from solitary leads to higher rates of return to prison, but sadly, the majority of states still allow direct release.

In the face of these stark and dehumanizing conditions, Alex is trying to bring meaning to his life. He is trying to survive. But the screams from his neighbors' cells and the madness of the solitary unit get to him. He is afraid that he will go insane before going home. Many of his counterparts have already given into the madness.

Alex isn't alone in his fears. And Texas isn't the only state with a problem. There are over 80,000 prisoners in "restrictive housing" in this country where prisoners are held in extreme forms of isolation. Across the nation, prisoners like Alex spend months, years, and even decades in solitary confinement. This human rights crisis is blowing up in our own backyard.

Solutions exist and the sea change is upon us. The report sets forth several common sense strategies to reduce solitary in Texas, including such policy changes as:

  • providing training to correctional officers to work effectively with people with mental illness
  • removing seriously mentally ill people from solitary and ensuring access to mental health care for all prisoners in segregation
  • ending the practice of directly releasing individuals to the community from solitary
  • limiting the time anyone can be placed in solitary and ensuring that fewer people are ever placed in such units
  • decreasing extreme isolation by providing positive social interactions and rehabilitative programming.

These strategies have worked in other jurisdictions, such as Colorado, New York, Maine, New Mexico, California, Washington, Massachusetts, and Mississippi. Both the public and our political leaders are now speaking out against solitary confinement. The U.S. Department of Justice reached agreement with the state of Ohio to end the practice of holding kids in state juvenile facilities in solitary and with the state of Pennsylvania to end the practice of holding individuals with serious mental illness in isolation.

The U.S. Senate has already held two hearings on solitary confinement and the need for reform. These hearings shone a national light on the problem of solitary confinement leading to greater attention from Congress. Last year, the first federal legislation to address the problem was introduced in the House. Even Texas itself has recognized the need to change by reducing its population in solitary confinement by about a third in the last few years.

As a nation, we are close to a tipping point on solitary confinement. States around the country are beginning to roll back their severe isolation policies and reduce their reliance on this terrible practice. But real and lasting change requires more. We must have the strength and the will to abolish the practice and refocus our resources on criminal justice policies that actually promote both rehabilitation and public safety.

The only question now is "Do we?"

For Alex, and the thousands of other men, women, and children in solitary confinement in this country, our answer must be "Yes."

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Heterosexuals Only: Sign of the Times?

February 6th, 2015 No Comments   Posted in ACLU Nationwide
By Louise Melling, Director, Center of Liberty; Deputy Legal Director, ACLU

The Associated Press published a poll yesterday that reported many Americans say it's okay for wedding-related businesses to refuse to provide service to same-sex couples based on religious views.

Ouch. That amounts, in essence, to blessing the notion that businesses that open their doors to the public – be it bakeries or inns or florists or reception halls – can post big signs that say, "We don't serve gay couples here."

I understand why at first blush people may think this is okay, particularly if the couple can get a reception hall or flowers or a license from another business or registrar. But I believe that many of those surveyed would have another answer if we asked the question a different way: "Do you think it's okay to hurt someone simply because of who they are? As a country, do we want to condone discrimination?"

When we look at polls like this one, it's important to remember that they don't ask about the harm of being turned away, even though that harm is real and that harm is significant. When we've put that harm of discrimination front and center, our country has had something different to say.

In the content of considering the Civil Right Act of 1964, the Senate Commerce Committee talked about discrimination in a way that has meaning here:

Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told he is unacceptable as a member of the public.

Our civil rights laws don't allow people to discriminate based on race, sex, national origin, age, or disability based on an individual's religious beliefs. There's no reason that the rule should be any different for laws banning discrimination based on sexual orientation or gender identity. Here too, it's not simply flowers and inns; it's dignity and fairness.

The promise of inclusion that comes with measures to end discrimination is undercut if we say at the same time it's still okay to turn same-sex couples. It doesn't feel like society is really working to end discrimination if I can be turned away from a business because of who I am. And that's not possible if every time I go into a business, I wonder if I will be turned away.

Freedom of religion is one of our most fundamental rights. But that freedom does not give any of us the right to harm others.

That's not what fairness looks like. That's not what ending discrimination looks like. And it's not what most Americans want our country to look like.

An expanded version of these arguments can be found in Religious Refusals to Public Accommodations Laws: Four Reasons to Say No, 38 Harv. J. L. &Gender 177 (2014).

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Congress Lines Up 3 Bills to Protect Our Emails From Unwarranted Government Intrusion

February 6th, 2015 No Comments   Posted in ACLU Nationwide
By Kade Crockford, Director, ACLU of Massachusetts Technology for Liberty Project

This blog was originally posted on

Bipartisan legislation introduced this week in congress by Reps. Zoe Lofgren (D-Calif.), Ted Poe (R-Texas), and Suzan DelBene (D-Wash.) would require police and federal law enforcement to obtain warrants before reading our emails or tracking our physical locations, barring some exemptions. The bill would reform woefully obsolete electronic communications privacy law in the United States, which was first passed in 1986 – before the Internet as we know it existed, and before most people had cell phones. Lofgren's bill would even prevent law enforcement form using controversial stingrays to track cell phones unless they got approval from a judge, having showed probable cause.

The legislation is a huge step forward.

Under current federal statutes, law enforcement may be able to obtain our private communications and documents stored in the cloud with a simple subpoena. Subpoenas are simply pieces of paper prosecutors fill out and issue to corporations or individuals, demanding information. No judge approves them or in most cases even sees them. The standard for issuing subpoenas is extremely low. Prosecutors must only believe that the information they seek is relevant to an investigation – a tautology of sorts, given that prosecutors investigate things for a living.

Obviously this federal framework for electronic surveillance makes no sense in 2015. Even the Department of Justice has agreed that a warrant requirement for email surveillance in criminal investigations makes sense. Yet somehow, Congress hasn't been able to get this obvious and important reform over the finish line.

In the absence of federal legislation to close the gaps, a patchwork of state and circuit court rulings and state statutes has created an impossibly complex legal framework for electronic surveillance. Today the rights you have against unconstitutional search and seizure very much depend on where you live and what level of law enforcement agency may be targeting you.

In Massachusetts, for example, our state high court ruled in Commonwealth v. Augustine that police must obtain probable-cause-backed warrants before demanding cell site location information from cell phone companies to track someone's historical physical location. But that precedent only governs state and local police in the state, not the feds.

If you live in the states covered by the 6th U.S. Circuit Court of Appeals, your email is protected by a warrant requirement (except in so-called "national security" investigations). That's because the 6th Circuit ruled in US v Warshak that the government – feds or locals – must get a warrant before seizing emails stored by a company like Google or Microsoft.

At the same time, some states have passed their own statutes requiring law enforcement to obtain warrants to track our physical locations or read our private communications. Most, however, have not. In all of these cases, like with the Augustine ruling in Massachusetts, the 21st century warrant requirement only applies to state and local cops, not the DEA, FBI, ATF, or other federal agencies. State legislators cannot create laws to bar federal law enforcement from conducting warrantless searches.

This inconsistent development of electronic privacy law makes it extremely difficult for ordinary people, and even privacy law experts, to understand what the law requires in particular circumstances in different states. The Online Communications and Geolocation Protection Act would smooth out the bumps by modernizing privacy law in every state and circuit with one fell swoop, providing a blanket warrant requirement for tracking and monitoring.

Don't get too excited, though: This bill, like similar efforts aimed at bringing the 1986 Electronic Communications Privacy Act into the 21st century, wouldn't mess with the NSA's unconstitutional surveillance programs. Lofgren's bill, Sen. Leahy's Electronic Communications Privacy Act Amendments Act of 2015, and a similar bill brought by Reps. Jared Polis (D-Colo.) and Kevin Yoder (R-Ky.) provide loopholes for what the federal government calls "foreign" intelligence surveillance. In other words, NSA/FBI programs like PRISM wouldn't be affected if these important bills were signed into law.

Despite that shortcoming, these proposals are crucial steps forward. While they won't stop the NSA from reading your email, they will stop local police, and in many cases even the FBI, from introducing evidence against you if it was obtained without a warrant.

And there's some hope that one of these bills might even move this time around. "We really hope that this Congress is the one to do it," Polis said of his proposal to modernize the warrant requirement for email content. "I mean, introducing it with 223 [co-sponsors] is an amazing number. That's huge."

Let's hope President Obama gets the message and moves forward legislation that his own DOJ and over half of the House agree on. Obama's legacy isn't looking so good when it comes to digital rights. If he were to sign comprehensive electronic communications privacy reform it would be the first expansion of criminal-investigations-related digital privacy rights from Congress in nearly 30 years.

I'd say it's about time.

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