Rebecca Marques, Reproductive Justice Policy and Advocacy Strategist, ACLU of Texas
Immersed in busy Thanksgiving preparations in 2013, Ernie and Lynne Machado received a phone call from their son-in-law, Erick Muñoz, that forever shook their world. Something was wrong with their daughter Marlise. The family rushed to the hospital only to discover that 33 year-old Marlise had suffered a pulmonary embolism and, two days later, the hospital declared her brain-dead.
Marlise had previously worked as a paramedic and truly understood the fragility of life. She had many conversations with her husband Erick about what decisions would be made in the event of an emergency and her answer was crystal clear – no intrusive end-of-life interventions. Marlise’s parents, Lynne and Ernie, stood united with Erick in asserting that their daughter’s wishes were to be respected. Together, they decided to forego medical intervention.
But in the midst of their agony, more shock and heartache was yet to come. Their request to remove Marlise from life support was refused– despite her previously expressed wishes – simply due to her 14-week pregnancy. Texas law currently forbids doctors and hospitals from withdrawing or withholding medical interventions from a terminally-ill pregnant patient, even if she and her family object. As a result, Marlise was denied the right given to every other Texan: the right to determine her own end-of-life care. Texas law forced her doctors to provide treatment that was of absolutely no benefit to her and despite her family’s objections.
Eventually, after an intense drawn-out legal battle, Marlise was finally put to rest. Sadly, for the family, the delayed decision felt like a half-hearted reprieve instead of true justice. The same law that treated Marlise as a second-class citizen is still on the books, which means this tragic situation could still happen to another family and her loved ones. Every Texan should be treated equally under the law. That’s why today, we stand with Marlise’s family in their support of legislation at the State Capitol. Touched by her story and wanting to protect other Texans from suffering such harmful government intrusion, State Rep. Elliott Naishtat (D-Austin) drafted and filed HB 3183, called “Marlise’s Law.”
“Marlise’s Law” would repeal the pregnancy exclusions in sections 166.049 and 166.098 of the Texas Health and Safety Code barring pregnant women from making their own decisions about end-of-life care. Every Texan deserves the autonomy to make profoundly personal decisions regarding end-of-life medical interventions. Please join the ACLU of Texas and our partners in ensuring that no woman or family will suffer the indignity of being treated as second-class citizens and will be afforded the dignity and respect they deserve.
By Sarah Mehta, Researcher, ACLU Human Rights Program
Leopolda Zumaya was working as an apple picker in Pennsylvania when he fell from a tree, breaking his leg and leaving him with permanent nerve damage and a chronic pain disorder. A treating physician said Mr. Zumaya's injuries were among the worst he'd seen, but when his boss learned Mr. Zumaya could not return to work, he ejected Mr. Zumaya from the farm labor camp where he lived and refused to pay benefits. More than eight years later, Mr. Zumaya continues to suffer chronic pain and struggles to walk.
Every day in the United States, workers in low-wage jobs risk their health and their lives providing basic services in hazardous conditions, with little protection for themselves or their families when they are injured on the job. A recent NPR and ProPublica investigation found that "employers are paying the lowest rates for workers' comp insurance since the 1970s" with cutbacks in benefits "so drastic in some places that they virtually guarantee injured workers will plummet into poverty."
For undocumented workers like Mr. Zumaya, who comprise over five percent of the U.S. workforce, requesting compensation and medical care after a work injury is often futile and can result in retaliation. Workers who have requested their wages, reported labor abuses, sought compensation for work injuries, or reported sexual harassment by employers have been arrested and deported by U.S. immigration officers when employers retaliate. While immigration reform and President Obama's executive action hang in the balance, millions of undocumented workers remain in a vulnerable and exploited position, doing some of the most dangerous work in the country but with limited safeguards or recourse when injured.
Under a 2011 Department of Homeland Security memo on immigration enforcement, undocumented workers qualify for prosecutorial discretion. That means they shouldn't be pursued for arrest and deportation if they are victims of workplace abuse or if they are attempting to enforce their labor rights. Nonetheless, some employers continue to threaten undocumented workers and report them to immigration authorities when they pursue their rights.
And despite the DHS memo, over the past several years, legal protections for undocumented workers have been declining.
In 2002, in Hoffman Plastic Compounds v. NLRB, the U.S. Supreme Court held that an undocumented worker, illegally fired for participating in protected union activities, could not recover back pay – i.e., the wages they would have earned if they had not been fired. While some states, like California, do recognize greater labor rights for undocumented workers, several others were emboldened by the Hoffman decision to limit or even eliminate core workplace protections, like compensation for injuries. The expansion of these laws has further jeopardized the welfare of a growing underclass of exploited workers, hired for hazardous, low-wage jobs but with limited ability to protest and report abuses and to see recompense when those abuses occur.
In response to this downward spiral, the ACLU, the National Employment Law Project, and the University of Pennsylvania's Transnational Legal Clinic filed a petition in 2006 with the Inter-American Human Rights Commission, challenging the U.S. government's failure to protect our clients – and millions like them – from exploitation and discrimination in the workplace. Human rights law recognizes the rights of all workers, regardless of their legal status, to be treated humanely and justly, without discrimination.
On March 16 – almost eight years later – our clients are finally getting a hearing before the commission and a chance to vindicate their human right to fair treatment. Their stories, like those of millions of other undocumented workers in the United States, remind us of what's at stake for workers who support our economy and undertake some of our most dangerous jobs but are laboring in the shadows.
And while we wait for the promised immigration reform and stronger worker protections, we call upon the U.S. government to ensure that undocumented workers are not deported for asserting rights.
U.S. Looks Overseas for Human Rights Abuses and Ignores U.N. Report Criticizing Its Youth Detention Practices at Home
By Mishi Faruqee, Juvenile Justice Policy Strategist, ACLU
Recently I visited a youth detention center in South Carolina. As I entered the facility, I saw a line of boys in jumpsuits march past with their arms behind their backs. The guard explained to me that they make the boys march to "help teach them discipline and structure."
Although I have visited numerous youth jails and prisons over the last 20 years, I am still amazed at how people who work in youth detention centers delude themselves. Young people, many who have experienced unspeakable trauma, come into these facilities in handcuffs and leg irons, are strip searched, and are put in cinder block cells – where sometimes they are physically restrained or locked in isolation for days as punishment – and somehow they are going to come out OK because they are trained to march in prison.
So it's not surprising that in a report released and presented this week to the U.N. Human Rights Council, Juan Mendez, the U.N.'s special rapporteur on torture, sharply criticized the U.S. model of youth detention where children are at "heightened risk of violence, abuse, and acts of torture or cruel, inhuman or degrading treatment or punishment." Even short periods of detention undermine a child's psychological and physical wellbeing. The report points out that children's healthy development requires developing emotional connections to caring adults, a requirement that most institutions consistently fail to meet.
The United State is the biggest jailer of children in the world. More than 67,000 unaccompanied children are locked up in our country's immigrant detention centers. An additional 60,000 children who come in conflict with the law are incarcerated in our juvenile jails or prisons – nearly two-thirds are held for non-violent offenses, including theft, drug possession, or skipping school. And thousands of more children are locked up in adult jails and prisons in the United States. Children of color are over-represented in detention, particularly among youth serving extreme sentences.
Notably, Mendez, who himself is a torture survivor, singles out the United States for being the only nation in the world that sentences children to die in prison. Although the Supreme Court recently banned mandatory life sentences for juveniles, there are approximately 2,500 individuals across the United States who are currently serving life-without-parole for crimes committed as children. In addition to life sentences, "sentences of extreme length have a disproportionate impact on children and cause physical and psychological harm that amounts to cruel, inhuman or degrading punishment."
About 40 percent of children are incarcerated in private facilities that are often euphemistically referred to as treatments centers, camps, or learning academies. The U.N. special rapporteur points out that these private institutions often avoid state oversight and regulation, which may lead to rampant abuse.
The report makes several key recommendations including eliminating juvenile life-without-parole sentences for children and the detention of immigrant children. There should be no use of restraints or solitary confinement under any circumstances. No children should be tried in adult court, and all children should be held in age-appropriate facilities.
In addition, because detention hampers the healthy development of children, the report recommends restricting detention to the shortest period of time possible and limiting it only to exceptional cases. In most cases, states should adopt non-custodial alternatives to detention. These community-based alternatives are not only better for children but cheaper and better for society as a whole.
Unfortunately, the U.S. delegation to the Human Rights Council failed to respond to Mr. Mendez report and preferred to highlight human rights concerns abroad. U.S. leadership on the international stage suffers when we decline to constructively engage and fully cooperate with international human rights bodies. As the U.S. seeks another term as member of the Human Rights Council, it should heed Mendez recommendations and live up to its commitments to uphold human rights at home and abroad.
By Dale Ho, Director, Voting Rights Project, ACLU
On March 7 and 8, ACLU joined more than 80,000 Americans in Selma, Ala., to commemorate those who marched and risked their lives in Selma 50 years ago. Their bravery led to the passage of the Voting Rights Act of 1965.
Being in this crowd commemorating this historic event left ACLU leaders reenergized for continuing the fight ahead. In the second piece of this three-part series, ACLU Voting Rights Project Director Dale Ho describes how voter suppression has re-emerged since 2008. Tomorrow, the series will conclude with ACLU Racial Justice Program Director Dennis Parker, who will write about being inspired by the next generation of racial justice activists. Yesterday, ACLU Senior Legislative Counsel Deborah J. Vagins wrote about how the sacrifice of those on Bloody Sunday should inspire the country to pass the Voting Rights Act of 2015.
I had the honor of joining thousands who walked across the Edmund Pettus Bridge in commemoration of the 50th anniversary of the Selma to Montgomery march. That march was the crucible from which the Voting Rights Act was born and transformed America.
The VRA has been called the crown jewel of the civil rights movement, and for good reason. Registration rates for African Americans throughout the South skyrocketed immediately in the wake of the VRA's passage. The 15th Amendment's long unfulfilled promise that all Americans be able to vote free from racial discrimination finally began to become a reality.
By the 1980s, debates about voting rights shifted largely to questions about how election lines are drawn – the redistricting process - rather than about basic ballot access. In fact, about 90 percent of the cases under the VRA during the 1980s through the 2000s were about redistricting and related issues. But it seemed as though a consensus had been achieved: All Americans should be able to vote, and voting should be free and easy.
That consensus has sadly broken down in recent years. What happened?
The 2008 election saw what was – until that point – the most diverse electorate in our nation's history. People of color constituted a quarter of the eligible electorate for the first time. And then from 2011 to 2012, 27 measures were passed or implemented in 19 states that would make it harder to vote. Many of these measures were rightly blocked in the 2012 cycle.
But in 2013, the Supreme Court struck down what had been called the "heart" of the VRA – ending the Section 5 preclearance regime, which had placed critical restrictions on states and localities with the worst records of discrimination historically. In the 5-4 majority's view, those protections were no longer necessary and, in fact, had become unconstitutional.
Then, in 2014, politicians tried to chip away at the right to vote yet again. In Ohio, the state eliminated the early voting days and times on which over 120,000 Ohioans voted in 2012. We brought a lawsuit to block those cuts, arguing that they violated the VRA and the Constitution. In North Carolina, we similarly argued that the state's elimination of same-day registration was unlawful. States that have same-day registration experience turnout 10 percentage points higher than other states, and 90,000 North Carolina voters used it in 2012. In both North Carolina and Ohio, the federal appeals courts in each district agreed with us, but the Supreme Court stayed those decisions.
Meanwhile, in Wisconsin, we brought a successful lawsuit striking down that state's strict voter ID law. The court found that 300,000 registered voters in Wisconsin lack acceptable ID. The federal appeals court stayed that decision, but at the last minute, the Supreme Court stepped in and blocked Wisconsin's ID law temporarily for the 2014 election.
When you look at all of this together, it is clear that the right to vote – which had been nurtured and expanded for decades – is once again under attack. And while a new bill has been introduced to restore the VRA, it has not yet moved forward. In his powerful speech Saturday, President Obama called upon Congress to pass the bill, and we hope they will soon heed the president's call.
The history of the right to vote in our country has not been one of linear progress, but rather has always seen fits and starts. Reconstruction brought the near universal enfranchisement of African-American men, but that shining moment was followed by decades of Jim Crow and disenfranchisement.
Today's moment is obviously different in many ways. But it is not entirely dissimilar, either. At this critical juncture, it is imperative that we not simply remember the heroes of Selma. Rather we must honor them and their brave sacrifices by restoring the consensus that all Americans must be free to vote.
By Michelle Paulson, Senior Legal Counsel, Wikimedia Foundation
Today the Wikimedia Foundation, the non-profit organization that supports Wikipedia and its sister projects, is filing suit against the National Security Agency and the Department of Justice of the United States with representation from the American Civil Liberties Union. The lawsuit is a challenge to dragnet surveillance by the NSA, specifically its large-scale copying and searching of internet communications – frequently referred to as "upstream" surveillance.
Wikipedia is one of the world's largest collaborative free knowledge resources and is read by nearly 500 million people every month. The Wikimedia Foundation's aim in filing this suit is to end the upstream mass surveillance program in order to protect the rights of Wikimedia users around the world. This post explains why the foundation is concerned about the NSA surveillance of its users and the reasoning behind this lawsuit.
Q: What does this lawsuit challenge?
A: Our lawsuit challenges the NSA's unfounded, large-scale search and seizure of Internet communications, frequently referred to as "upstream" surveillance. Using upstream surveillance, the NSA intercepts virtually all international internet communications flowing across the network of high-capacity cables, switches, and routers that make up the internet's "backbone" inside the United States. This backbone connects the Wikimedia global community of readers and contributors to Wikipedia and the other the Wikimedia projects.
Q: What is the U.S. government's legal justification for this program?
A: The U.S. government has used the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA) (see 50 U.S.C. § 1881a) to justify broad, "upstream" mass surveillance inside the United States. Under the FAA, "the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to one year from the effective date of the authorization, the targeting of [non-US] persons reasonably believed to be located outside the United States to acquire foreign intelligence information." The statute only requires "reasonable belief" that a non-US person is located outside the United States. There is no need to show that the target is a foreign agent, much less a terrorist. The purpose of the statute is to acquire "foreign intelligence information"– a very general concept. We believe the broad interpretation of this statute, which allows for upstream surveillance, is unconstitutional.
Q: How does surveillance or the fear of surveillance affect readers and editors of Wikipedia and its sister projects?
A: Mass surveillance is a threat to intellectual freedom and a spirit of inquiry, two of the driving forces behind Wikimedia. Wikipedia is written by people from around the world who often tackle difficult subjects. Very frequently they choose to remain anonymous or pseudonymous. This allows them to freely create, contribute, and discover, without fear of reprisal. Surveillance might be used to reveal sensitive information, create a chilling effect to deter participation or, in extreme instances, identify individual users. Pervasive surveillance undermines the freedoms upon which Wikipedia and its communities are founded.
Q: How does surveillance affect Wikipedia as a knowledge resource?
A: Wikipedia is a living resource for knowledge, written by volunteers around the globe in hundreds of languages. It reflects the world around us and changes to embody current events, notable individuals, evolving theories, emerging art, and more. Wikipedia relies on the contributions of editors and the support of readers to evolve and grow. If readers and editors are deterred from participating in Wikipedia because of concerns about surveillance, the health of Wikipedia as a resource to the world is jeopardized.
Q: What kind of Wikimedia communications could the NSA be intercepting?
A: Wikipedia and its sister projects are created entirely by volunteer editors. More than 75,000 editors each month edit Wikipedia, amounting to more than 33 million articles. These editors not only contribute content, but they also discuss and share information on discussion pages and elsewhere within the project. Privacy and free expression are core values of the Wikimedia community. When volunteer editors contribute to Wikipedia, they expect it to be a safe, open space in which creativity and knowledge can thrive.
Q: Why is it important that the Wikimedia Foundation ensures privacy and anonymity for its users?
A: Privacy is a core value of the Wikimedia movement. From the beginning, Wikipedia has allowed for users to maintain private identities through the use of anonymous or pseudonymous editing. This has been reinforced by the Wikimedia Foundation's firm commitment to protecting the privacy and data of its users through legal and technical means.
Privacy makes freedom of expression possible, sustains freedom of inquiry, and allows for freedom of information and association. Knowledge flourishes where privacy is protected.
Q: Why is the NSA interested in the communications of innocent Wikimedia users?
A: You would have to ask them. One could guess, however, that they are trying to amass as much information as possible into their databases, and, as with other websites, they may believe there is value in the data, conversations, and personal information on Wikipedia and in the Wikimedia community.
Q: How do you know Wikimedia has been singled out for surveillance by the NSA?
A: One of the NSA documents revealed by whistle-blower Edward Snowden specifically identifies Wikipedia for surveillance alongside several other major websites like CNN.com, Gmail, and Facebook. The previously secret slide declares that monitoring these sites can allow NSA analysts to learn "nearly everything a typical user does on the Internet."
Q: Has the Wikimedia Foundation taken any measures to protect its users' privacy?
A: The Wikimedia Foundation takes privacy very seriously, which is why we find the NSA's upstream mass surveillance so troubling. You do not need to create an account or login to read or edit Wikipedia or the other Wikimedia sites. If you do decide to create an account, you can choose any username you like — we don't require real names, email addresses, or any other personally identifying information, and we never sell your data.
Q: Why did Wikimedia join this lawsuit against the NSA?
A: Our role at the Wikimedia Foundation is to protect Wikipedia, its sister projects, and the Wikimedia community of users. This means providing our users with the right conditions to facilitate their work and protecting them when necessary. Defending the privacy of our editors, readers, and community is paramount to us. We believe privacy is essential to facilitating and advancing free knowledge.
Reflections From the Bridge: Where the Stain of Slavery and Segregation Met a Young Man’s Courage and a Preacher’s Dream
By Deborah J. Vagins, ACLU Washington Legislative Office
On March 7 and 8, ACLU joined more than 80,000 Americans in Selma, Ala. to commemorate those who marched and risked their lives in Selma 50 years ago. Their bravery led to the passage of the Voting Rights Act of 1965.
Being in this crowd commemorating this historic event left ACLU leaders reenergized for continuing the fight ahead. In the opening piece of this series, ACLU Washington Legislative Office Senior Legislative Counsel Deborah J. Vagins writes about the importance of securing voting rights for all citizens after standing in the very same place activists were beaten and bloodied by police 50 years ago. Tomorrow, ACLU Voting Rights Project Director Dale Ho will describe how voter suppression has re-emerged since 2008. And on Thursday the series will conclude with ACLU Racial Justice Program Director Dennis Parker, who will write about being inspired by the next generation of racial justice activists.
I returned home Sunday night from Selma, Alabama, where Presidents Barack Obama and George W. Bush, Rep. John Lewis (D-Ga.), a bipartisan delegation of members of Congress, civil rights leaders, and over 80,000 marchers joined to commemorate the 50th anniversary of Bloody Sunday.
On March 7, 1965, voting rights supporters, led by Lewis and hundreds of activists, attempted to march from Selma to the state capitol in Montgomery to present then-Governor George Wallace with a list of grievances, demanding the fundamental right to vote for all. At this time, without strong federal legislation, state and local officials could merely circumvent court rulings striking down illegal voting tactics, with different, but equally discriminatory practices. Voting rights advocates began to push for a stronger set of tools, but resistance was fierce.
After the marchers set out, state troopers and sheriff's deputies on horseback stopped the marchers on the Edmund Pettus Bridge, and in front of television cameras, attacked the more than 600 demonstrators by firing toxic tear gas and beating people with billy clubs and whips. Lewis, only in his 20s at the time, was bloodied and his skull was fractured. The nation watched horrified as the peaceful march turned into violence and chaos.
Returning back to the scene of his attack last weekend, Rep. Lewis reflected on that moment: "This city on the banks of the Alabama river gave birth to the movement that changed this nation forever. Our country will never ever be the same because of what happened on this bridge."
Unfortunately, last June, in Shelby County v. Holder, the Supreme Court struck down the most effective parts of the Voting Rights Act: the coverage formula that required some jurisdictions with a history of racial discrimination in voting to seek federal approval for any voting changes. Without these federal protections, states have now wasted no time enacting discriminatory laws making it harder to vote, especially for voters of color. Last November marked the first election in 50 years where voters of color were not fully protected at the polls.
As President Obama said in his moving speech: "If we want to honor this day, Congress must pledge to make it their mission to restore that law this year. That's how we honor those on this bridge."
So now herein lies our challenge. Selma cannot just be about commemoration. We cannot just stand on a bridge or recall history. We must channel it into action. To truly honor the Selma marchers, we must repair the very law they fought and died for. I was part of a joyous celebration on that bridge, but we were joyful because of the success born from their suffering. We are standing on the shoulders of giants, and we owe them more than a debt of gratitude. We owe it to that young man on the bridge 50 years ago, to the preacher who dreamt of a world he never saw, and to all those who walked with them, to restore a robust Voting Rights Act once again.
We applaud leaders like Reps. James Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) who have led a bipartisan effort to address this injustice, with the introduction of the Voting Rights Act of 2015. The bill is not perfect, but it is an important first step in the process to ensure the right to vote is effectively protected. In the weeks to come, there may be other pieces of legislation that seek to repair the damage of the Shelby decision, and we urge congressional members in both parties to heed the call from that bridge, to take the right path at this intersection in history, and to make sure all our citizens have equal access to the ballot.
After crossing the bridge, I feel rededicated to my work to honor the courage and fulfill the dreams of those who fought and died for the rights of others. I was privileged to be in Selma for this anniversary and to march, without fear, across the bridge. As we look forward to the 50th anniversary of the signing of the Voting Rights Act later this year, let us remember, and honor with action, all those who did not have this luxury.
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project
The Sixth Circuit Court of Appeals has become the latest federal appeals court to consider the question of whether law enforcement needs a warrant before it obtains cell phone location data. We have (with allies) filed an amicus brief in this case, as we did in cases now pending in the Fourth and Eleventh Circuits. Clearly this is an issue that is headed toward the Supreme Court (especially if the circuit courts come to different conclusions).
In this case, United States v. Carpenter, police obtained four months of historical cell phone location records for one suspect, Timothy Carpenter, and nearly three months of records for another suspect, Timothy Sanders. They did so without getting a warrant. For Mr. Carpenter, the records contain 12,898 separate points of location data, and for Mr. Sanders, 23,034 location points—an average of one every six minutes.
In this case as in the others, the data acquired by police provides a stark demonstration of how location data can reveal extraordinarily private details about our lives. For example here we found that:
- In the early afternoon on a number of Sundays, Mr. Carpenter made or received calls from the cell tower sectors nearest to his church. His cell phone records do not routinely show him in that area on other days of the week, leading to the inference that he was worshipping at those times.
- Mr. Carpenter’s call records reveal that over the course of four months, his phone was located in more than 200 separate cell tower sectors. On one day, he made and received 141 calls while located in 40 different sectors. These records provide a granular accounting of Mr. Carpenter’s locations and movements over time.
- From December 23 to December 27, 2010, Mr. Carpenter’s last call of the night and first call of the next morning were either or both placed from the sector nearest to his home, suggesting that he slept at home on those evenings. But on the night of December 22, 2010, his last call of the night and first call of the next morning were placed from a Detroit neighborhood several miles away from his home. Although we have no reason to believe it to be the case here, Carpenter’s data shows how such information could easily reveal private details about who a person is sleeping with.
Records revealing these kinds of sensitive details of our lives are exactly what the Fourth Amendment was intended to protect. It’s crucial that law enforcement go to a neutral judge, demonstrate probable cause, and get a warrant before delving into a transcript of our every movement over the course of weeks or months.
Our brief was joined by the ACLU of Michigan, Brennan Center for Justice, Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers.
By Patrick C. Toomey, Staff Attorney, ACLU National Security Project
Every time you email someone overseas, the NSA copies and searches your message. It makes no difference if you or the person you're communicating with has done anything wrong. If the NSA believes your message could contain information relating to the foreign affairs of the United States – because of whom you're talking to, or whom you're talking about – it may hold on to it for as long as three years and sometimes much longer.
A new ACLU lawsuit filed today challenges this dragnet spying, called "upstream" surveillance, on behalf of Wikimedia and a broad coalition of educational, human rights, legal, and media organizations whose work depends on the privacy of their communications. The plaintiffs include Amnesty International USA, the National Association of Criminal Defense Lawyers, and The Nation magazine, and many other organizations whose work is critical to the functioning of our democracy.
But the effect of the surveillance we're challenging goes far beyond these organizations. The surveillance affects virtually every American who uses the Internet to connect with people overseas – and many who do little more than email their friends or family or browse the web. And it should be disturbing to all of us, because free expression and intellectual inquiry will wither away if the NSA is looking over our shoulders while we're online.
The world first learned of the existence of upstream surveillance from whistleblower Edward Snowden's spying revelations in June 2013. Since then, official disclosures and media reports have shown that the NSA is routinely seizing and copying the communications of millions of ordinary Americans while they are traveling over the Internet. The NSA conducts this surveillance by tapping directly into the Internet backbone inside the United States – the network of high-capacity cables and switches that carry vast numbers of Americans' communications with each other and with the rest of the world. Once the NSA copies the communications, it searches the contents of almost all international text-based communications – and many domestic ones as well – for search terms relating to its "targets."
In short, the NSA has cast a massive dragnet over Americans' international communications.
Inside the United States, upstream surveillance is conducted under a controversial spying law called the FISA Amendments Act, which allows the NSA to target the communications of foreigners abroad and to intercept Americans' communications with those foreign targets. The main problem with the law is that it doesn't limit which foreigners can be targeted. The NSA's targets may include journalists, academics, government officials, tech workers, scientists, and other innocent people who are not connected even remotely with terrorism or suspected of any wrongdoing. The agency sweeps up Americans' communications with all of those targets.
And, as our lawsuit explains, the NSA is exceeding even the authority granted by the FISA Amendments Act. Rather than limit itself to monitoring Americans' communications with the foreign targets, the NSA is spying on everyone, trying to find out who might be talking or reading about those targets.
As a result, countless innocent people will be caught up in the NSA's massive net. For instance, a high school student in the U.S. working on a term paper might visit a foreign website to read a news story or download research materials. If those documents happen to contain an email address targeted by the NSA – like this news report does – chances are the communications will be intercepted and stored for further scrutiny. The same would be true if an overseas friend, colleague, or contact sent the student a copy of that news story in an email message.
As former NSA Director Michael Hayden recently put it, "[L]et me be really clear. NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information."
That doesn't sound like much of a limitation on the NSA's spying – and it's not. Like many Americans, the plaintiffs in our lawsuit communicate with scores of people overseas who the NSA likely finds "interesting." For instance, researchers at Human Rights Watch depend on foreign journalists, lawyers, political dissidents, and witnesses to human rights abuses for information crucial to their advocacy and reporting back home. Wikimedia communicates with millions of people abroad, many of whom read or contribute to Wikipedia, one of the largest repositories of human knowledge on earth. We know, thanks to Edward Snowden, that the NSA is interested in what some of those users are reading.
The fact that upstream surveillance is supposedly focused on international communications is hardly a saving grace. Americans spend more and more of their lives communicating over the Internet – and more and more of those communications are global in nature, whether we realize it or not. An email from a woman in Philadelphia to her mother in Phoenix might be routed through Canada without either one knowing it. Similarly, companies like Microsoft and Google often store backup copies of their U.S. customers' emails on servers overseas, again with hardly anyone the wiser. The NSA is peeking inside virtually all of these.
Our plaintiffs have had to go out of their way to take measures, sometimes at a high cost, to protect their communications from their own government. Despite these precautions, the chilling effect is palpable. NSA surveillance makes it harder for the plaintiffs to gather information from sources who believe that by sharing information over the Internet, they are also sharing it with the U.S. government and the intelligence agencies it partners with. The work of human rights and free-knowledge organizations is profoundly undermined by this unconstitutional surveillance, and we're all worse off.
Upstream surveillance flips the Constitution on its head. It allows the government to search everything first and ask questions later, making us all less free in the process. Our suit aims to stop this kind of surveillance. Please join our effort to reform the NSA.
By Jamil Dakwar, Director, ACLU Human Rights Program
The U.N. Human Rights Council could take a big step this month toward protecting privacy rights around the world. At its current session, the HRC plans to vote on whether to appoint an independent expert on the right to privacy, called a "special rapporteur."
The ACLU joined with more than 60 other human rights and civil liberties groups this week in signing a letter urging the HRC to vote in favor of the initiative, which could help strengthen critically needed privacy standards and monitor compliance with those standards worldwide. I will be in Geneva next week to participate in meetings on the matter with members of the HRC and advocate for this important mechanism.
Privacy is one of the most fundamental – and widely violated – human rights not to have its own special rapporteur. While the U.N. General Assembly has recently passed resolutions expressing support for the right to privacy in the digital age, and the U.N. High Commissioner for Human Rights has recently issued a landmark report on the same issue, both of those bodies have a broad range of human rights issues to monitor and address. Privacy needs a dedicated international champion.
Special rapporteurs have played a key role in protecting human rights for decades. Some rapporteurs have "thematic" mandates, focusing on specific rights or issues, like freedom of opinion and expression or violence against women. Other rapporteurs have "country" mandates, meaning they focus on specific states, like Myanmar or Syria.
Thematic rapporteurs typically gather information from around the world on the state of the right at the center of their mandates, consulting government officials, civil society, relevant experts, victims of violations, and others. They visit different countries and document how well or badly those countries protect and ensure the rights in question. Ultimately, they report back to the HRC on their findings, interpreting and articulating human rights standards for particular rights in the process. Their work has served as a fundamental vehicle for the evolution of human rights law.
A special rapporteur on the right to privacy would help assess and monitor the ongoing implementation of this right, particularly as modern technologies are enabling interferences with privacy on an unprecedented scale. He or she would also be able to provide governments and non-state actors much needed guidance and clarity in interpreting a rapidly developing area of law. Indeed, some of the most important guidelines on human rights law and privacy have come from other special rapporteurs whose thematic issues touch on privacy rights. Imagine how valuable a devoted special rapporteur on privacy could be.
We have been pushing the HRC to establish a mandate for privacy for months. The moment of truth has arrived. The Human Rights Council's choice will have implications for all of us, and you can bet we'll be watching their vote closely.
The Legacies of Slavery and Jim Crow Live on With Exclusion of Home Health Care Workers from Fair Labor Laws
This year, our nation came close to ending a shameful, nearly century-long chapter in history that carried on the legacies of slavery and Jim Crow for domestic workers in the U.S. But on the cusp of finally bringing justice to a neglected class of workers, a federal judge put the brakes on the long-awaited solution.
Since the New Deal era, our labor laws, including those guaranteeing minimum wages and hours, deliberately excluded home health care workers who care for elderly individuals and people with disabilities in their homes. These workers – 90 percent of whom are women and most of whom are women of color – perform strenuous labor for long hours, helping those who need assistance with everything from dressing to meal preparation to eating to going to the bathroom to getting around. Yet until now – and to this very day – these workers are denied the basic protections of minimum wages and overtime pay. They are among the poorest workers in our country, barely getting by on low wages, with 23 percent living below the poverty line.
The exclusion of most domestic workers from our labor laws was a deliberate wrong. It was a legacy of slavery, during which enslaved African-American women provided household care, and the Jim Crow era, when African-American women continued to provide domestic service to white families at poverty wages. The low value traditionally placed on domestic work was also rooted in gender stereotypes that viewed this work as something less than real work, deeming it unworthy of legal protections. When the 1938 Fair Labor Standards Act was passed, guaranteeing minimum wages and standardizing hours, it codified this history of bias, and it was interpreted to exclude domestic workers (as well as agricultural workers, many of whom were African-American and immigrant men, also a legacy of slavery) from its protections.
Congress amended the Fair Labor Standards Act in 1976 to bring domestic workers within its protections, but the law was still interpreted to exclude many long-term care workers. In the decades since then, the home health care industry has exploded into a multi-million-dollar sector. Part of this massive growth is due to the welcome fact that, unlike in decades past, many more people who need care are now living in their homes, rather than in institutions. In addition, the portion of the population that is 65 or older has burgeoned, from 8 percent in 1950 to nearly 13 percent by 2009. Yet the growing workforce providing care is still working under pre-1938 conditions, with no guarantee of minimum pay or overtime.
After years of advocacy, the Department of Labor issued rules in 2013 that would finally bring home health care workers into the economic mainstream and grant them the basic minimum wage protections that most workers take for granted. The rules required workers who are employed by third-party agencies to be paid minimum wages and overtime, and they also narrowed the definition of the casual babysitters and elder companions who would remain exempt from wage protections. The ACLU advocated for these rules and celebrated their announcement.
Early this year, however, a federal judge in the District of Columbia struck down the rules as being beyond the scope of the Labor Department's authority. The government has appealed, and last week the ACLU, along with the ACLU of the Nation's Capital and Legal Momentum, filed a friend-of-the-court brief, joined by many civil rights and women's rights organizations, urging the federal court of appeals to reverse the lower court's decisions and uphold the rules. We argued that the exemption of long-term care workers from the labor laws was wrong, a product of racial biases and gender stereotypes that Congress intended to get rid of and that the department's rules appropriately eliminated.
It was never right to deny predominantly African-American and immigrant women workers fair wages for the work they do providing care at home. It is certainly not right today. Congress and now the federal government have acted to put this shameful legal exemption where it belongs: in the dustbin of history. Now it's time for the courts to do the same.