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

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

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

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

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

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

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

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

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

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

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

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

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Uncle Sam’s Databases of Suspicion

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

This piece originally ran at

It began with an unexpected rapping on the front door.

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

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

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

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

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

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

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

And it wouldn't end there for Gill.

The Architecture of Mass Suspicion

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

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

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

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

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

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

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

When the Mundane Looks Suspicious

The SAR program provides striking evidence of this.

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

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

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

Counterterrorism Accounting

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

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

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

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

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

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

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

Twenty-First-Century Blacklists

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

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

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

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

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

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

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

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

Suspicion First, Innocence Later... Maybe

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

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

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

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

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

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

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

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

No matter the verdict, suspicion lasts forever.

Shadow ID

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

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

And they could be you.

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

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The Fight to Take Back Our Genes Moves to Canada

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

The fight against gene patents has migrated north.

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

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

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

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

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

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

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

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

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

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

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

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Voters Tell Politicians, "Just Let Us Vote"

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

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

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

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

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

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

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

Politicians, are you listening?

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Keep it Simple With Net Neutrality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yep, Uncle Sam Still Wants to Log Your Calls

November 4th, 2014 No Comments   Posted in ACLU Nationwide
By Rachel Nusbaum, Media Strategist, ACLU Washington Legislative Office

Today, in a hushed courtroom in Washington, D.C., not far from the now-empty halls of Congress, a federal appeals court heard arguments in Klayman v. Obama, a challenge to the NSA's bulk collection of telephone metadata first revealed by Edward Snowden. If you have ever made a phone call, or received a phone call, this case has implications for your personal privacy and you should pay close attention to what happens next.

The appeal follows a December win for Larry Klayman, a conservative lawyer and activist and the plaintiff in the case, where a district court judge ruled the program was likely unconstitutional. Today, government lawyers attempted to argue that this program should be allowed to continue.

The arguments hinged on a central question: Is the warrantless, non-targeted surveillance currently being conducted by the NSA, which is scooping up data on all (or almost all) calls made or received on U.S. telephone networks, a violation of the Fourth Amendment?

The government tried to argue that it is not. They claim that their searches of this massive call record database are reasonable, and that there is no reasonable expectation of privacy in the numbers one dials.

But, as EFF Legal Director Cindy Cohn argued on behalf of both EFF and the ACLU as friends of the court, the government has no right to scoop up such a massive amount of personal information about Americans in the first place.

(To read the ACLU and EFF's amicus brief in Klayman v. Obama, click here.)

The truth is, the NSA's bulk collection of the phone records of all Americans is fundamentally different than putting a trace on the phone of an individual suspected of wrongdoing. The sheer scale of this program means that we are all suspects, or at least potential suspects, in the eyes of our government.

Think about the impact of knowing that your every phone interaction is being logged by the government. This kind of surveillance has even greater implications for lawyers and journalists, who have to worry about protecting the confidentiality of clients and sources. The phrase "chilling effect" seems insufficient to describe the potential loss to our society, to our whole way of life, as we slowly begin to censor ourselves because we know that the government is always monitoring our communications.

This is contrary to the very nature of a democracy, where people are supposed to hold their government to account. Who will be willing to speak out against an abusive government when that government knows all our deepest, darkest secrets?

Governments are by nature interested in acquiring more power, and today, more than ever, information is power. We should not be surprised that the government wants to know who Americans are speaking with, and for how long, and how often. We rely on the Constitution, and on the other branches of government, to provide a check on that desire.

Today, we asked the court to provide that check and to declare bulk collection of American's telephone metadata unconstitutional.

The ACLU has also filed its own challenge to the constitutionality of this program, ACLU v. Clapper. An appeals court decision is pending in that case.

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Ferguson’s No-Media Zone Extended to the Skies

November 4th, 2014 No Comments   Posted in ACLU Nationwide
By Sonia Roubini, ACLU Speech, Privacy, and Technology Project

It appears the Federal Aviation Administration may have fallen into the "constitutional sinkhole" that is Ferguson, Missouri.

Earlier this week, the Associated Press released an alarming set of documents revealing the FAA's decision to approve a no-fly zone over Ferguson – a no-fly zone requested by local police in order to muzzle media coverage of protests in the wake of the killing of unarmed black teenager Michael Brown.

The FAA allowed commercial traffic to travel freely within this no-fly zone, making clear that the aerial ban singled out the media for unfavorable treatment in direct violation of its First Amendment rights.

The ACLU sent a letter to the FAA today, in protest of its complicity with local Missouri police in obstructing the media's ability to do its job. As we wrote:

Aerial newsgathering provides a unique and important perspective on breaking news, allowing for coverage that journalists are unable to obtain on the ground. This is particularly true in Ferguson, where in addition to repeat violations of First Amendment rights on the ground, there is extensive evidence of racial profiling, excessive use of force, and an overly militarized police force. The failure to allow press in the airspace above this unfolding national news event risks obscuring potentially unconstitutional police practices involving use of force and detentions, and thus risks preventing the public and advocacy groups from adequately addressing such practices.

Law enforcement officers in Ferguson have repeatedly violated the First Amendment rights of the public, media representatives, and photographers to document the public protest and police reaction following Michael Brown's killing. Ferguson police systematically ordered protesters to turn off cameras and cell phones recording law enforcement, journalists were arrested by roving SWAT teams, and tear gas canisters were aimed directly at members of the press.

This effectively turned Ferguson into a "speech-free zone" – one that cannot coexist with our constitutional principles. The ACLU demands that the FAA deny future requests to participate in such violations of the First Amendment, and that it take pains to comply with and uphold the principles of our Constitution.

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The Government is in Pursuit of a Less Secure Internet

November 4th, 2014 No Comments   Posted in ACLU Nationwide
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project

A government proposal to change the rules for obtaining search warrants risks making all of us more vulnerable to cyber-attacks.

The FBI wants to be able to infect computers with malware when it doesn't know where exactly they're located. The implications for computer security, and for constitutional limits on the government's search powers, are drastic.

The Department of Justice is asking a judicial committee to amend Rule 41 of the Federal Rules of Criminal Procedure, which generally permits magistrate judges to issue search warrants to the government only for searches within their judicial district. The government wants to lift the geographical limitation to allow it to conduct electronic surveillance of devices whose locations are unknown.

The Advisory Committee on Criminal Rules, which includes mainly judges, is holding a hearing tomorrow to consider the government's proposal. The ACLU will explain at the hearing why the proposed rule could be a game changer in degrading online security and how it could green light systemic constitutional violations.

We know that the FBI – and possibly other law enforcement agencies – have been infecting the devices of criminal investigative targets since at least 2001. But if the proposed amendment is adopted, it will throw the doors wide open to an industry peddling tools to undermine computer security, and make the U.S. government an even bigger player in the surveillance software industry. That's cause for concern when you consider the government's own track record on data security. As we noted in a comment we submitted last week to the committee ahead of tomorrow's hearing, "Agencies struggle with the most basic security practices, such as using good passwords, updating anti-virus software, and encrypting internet traffic on their websites." Federal agencies reported a staggering 25,000 data breaches in 2013, and foreign governments and hackers have repeatedly penetrated federal systems – the White House's network being the latest.

Flaws in surveillance software used by the U.S. government could expose targets' devices not just to American law enforcement agents, but to foreign governments and malicious parties eager to exploit vulnerabilities to collect sensitive information. And the government's record when it comes to assessing the reliability of technology it has purchased doesn't exactly inspire confidence (think

Possibly even more disconcerting, however, is the market for vulnerabilities the amendment would encourage. In order to successfully infect the computers of targets, law enforcement agencies are increasingly seeking to purchase or so-called "zero-day" software exploits. Zero-day exploits take advantage of software vulnerabilities that are unknown to the software's manufacturer. Governments pay big bucks – reportedly into the hundreds of thousands of dollars – to acquire them, resulting in a largely unregulated market for these tools. Since the use of a given zero-day exploit depends on the continued existence of the vulnerability it's exploiting, governments withhold their existence from the manufacturer.

That is, quite simply, frightening. Government officials often say that cyber-attacks are one of the biggest threats faced by this country. Given that assessment, shouldn't government be fixing, not exploiting, insecurities in widely used technologies? Indeed, a panel appointed by the president to review the NSA's surveillance programs wrote that "it is in the national interest to eliminate software vulnerabilities rather than to use them for US intelligence collection." But by codifying law enforcement's ability to use malware to remotely access targets' computers, the proposed amendment to Rule 41 would be a major boost to the zero-day market, further commodifying vulnerabilities and incentivizing the government to stay mum when it discovers them.

The constitutional concerns raised by the amendment are no less serious, and go beyond the kinds of procedural questions generally addressed by the committee. There are strong arguments that zero-day exploits are too intrusive, destructive, or dangerous to be reasonable under the Fourth Amendment, considering they endanger far more computers than those they target. For example, Stuxnet, the exploit launched by the United States and Israel apparently to target facilities in Iran, spread far beyond the targeted computer systems, infecting the networks of major U.S. companies. Similar questions arise for far less dramatic methods for infecting targets' computers.

For example, we learned last week that in 2007 the FBI delivered spyware to a suspect by faking an Associated Press story and sending a link to the suspect's MySpace account. When the suspect clicked on the link, surveillance malware installed itself on his computer and initiated a search. What we don't know is whether the suspect unwittingly forwarded the link to other people or shared it via social media. If he did, the computers of numerous innocent people could easily have been secretly infected with malware and searched. In other investigations, the computers of law-abiding citizens could get easily swept up in an attack simply because they visited the same site as a target. That kind of dragnet search is unacceptable by the Constitution's standards.

The committee demonstrated its thoughtful approach to these questions earlier this year, when the DOJ submitted an even broader proposal that would have allowed remote hacking of computers, as well as remote access to cloud-based services (like Gmail or Dropbox) during a search of a physical computer. The committee recognized the concerns raised by privacy advocates, and scaled back that proposal to ensure the government serve warrants on cloud service providers in order to access that information. When we testify tomorrow, we will urge the committee to reject the remaining parts of the government's proposal.

The proposed amendment would expand the government's power to conduct searches of a particularly invasive nature. If such searches are to be allowed at all, they should be carefully regulated by Congress, which is better suited to weigh the constitutional and policy concerns that the proposal raises. We hope the committee recognizes that, and rejects the proposed amendment to Rule 41.

The amendment, if passed, would have enormous implications for the security of each and every one of us. That's a decision our elected representatives – and each of us – should be weighing in on.

Blacking Out the Vote

November 4th, 2014 No Comments   Posted in ACLU Nationwide
By Laura W. Murphy, Director, ACLU Washington Legislative Office

This was originally posted on The Huffington Post.

Voters are facing an ugly surprise on their way to the voting booth on Tuesday. What most people don't realize is that since 2006, some 34 state legislatures have worked diligently to chip away at the fundamental right to vote -- and overwhelmingly, people of color are the target.

This year alone, 14 states have implemented legislation that would end same-day voter registration, limit early voting, and require voters to present forms of ID that many voters lack and cannot easily obtain. What do these measures have in common? Each would disproportionately impact African-American voters, making it more difficult for them to vote or have their vote count in a meaningful fashion.

To make matters worse, the Supreme Court pulled the rug out from under decades of effective voting rights protections in its decision in Shelby County v. Holder. The court's decision gave a free pass to state and local politicians manipulating voting laws for their own gain, allowing them to pick and choose who will be able to vote. That is why the right to vote is in danger across the country.

Some of these state legislatures, while attacking the right to vote, also diminish the value of each vote counted through all kinds of creative methods. Some recent examples include drawing boundaries of an election district to ensure that minority voters cannot constitute a majority, and "packing" minorities in only one or a limited number of districts to ensure they are a majority, which weakens the voting power of minority groups that could otherwise constitute an influential voting bloc. Smaller districts can also be drawn in such a way that the voting power of a minority group is reduced by dividing minorities into several districts that are predominantly white.

I know, the term "voting matters" has probably lost its value over the years because of over use, but it really does matter. Voting isn't just about electing candidates. It's about feeling a sense of dignity and empowering people to take part in the democratic process. It's about influencing policies and holding the federal and state governments accountable for promoting social and economic equity for ALL people.

Withholding the right to vote is a way to impose second-class citizenship on people who threaten the status quo. Throughout our country's history, the right to vote was denied to white men without property, African-Americans, women, Native Americans, Chinese-Americans, and adults under 21 years of age.

While the 15th Amendment was adopted in 1870 and prohibited denial of the right to vote on account of race or color, in reality, African-Americans who wanted to exercise their right to vote were beaten, chased by dogs, bludgeoned by police and sometimes killed. It's somewhat unimaginable that African-Americans were only able to vote within recent memory -- with the passage of the Voting Rights Act of 1965.

But that's all history, right?

Some claim today, that America is no longer plagued by the racial injustice of the civil rights era. Unfortunately, less overt strategies have been implemented more recently to block African-Americans and other minorities from the ballot. I can't believe how close we are to losing what many fought so hard, and sometimes died, to achieve.

Now more than ever, new tools are needed to prevent voter discrimination before it happens. In January 2014, a bipartisan group of lawmakers introduced the Voting Rights Amendment Act (VRAA) to repair the damage done by the Shelby decision. Congress had the opportunity to pass a new, flexible and forward-looking set of protections that work together to guarantee our right to vote -- however, they failed to act on it.

In September, voting rights advocates, including myself, delivered petitions from over 500,000 voters seeking to restore VRA protections to the office of Speaker John Boehner. We found ourselves confronted by a locked door, perfect symbolism for the disenfranchisement many voters of color will experience come Tuesday. Next year the Voting Rights Act will be celebrating a dubious 50th anniversary, unless Congress acts immediately to pass new protections. Next week, voters of color will be immersed in the least protected election since the passage of the act in 1965.

The Voting Rights Act was born from the premise that all Americans have the right to vote -- regardless of race or language proficiency. It was critical to the civil rights movement, turning hateful policies like poll taxes and literacy tests into historical footnotes. We cannot allow those footnotes to be rewritten into modern forms of vote suppression.

If you have any questions about your right to vote in this upcoming election, contact the ACLU at or call the Election Protection Hotline at 866-OUR-VOTE (866-687-8683).

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Victims of Crime No Longer Have to Fear Calling 911 in Pennsylvania

November 3rd, 2014 No Comments   Posted in ACLU Nationwide
By Michaela Wallin, Women's Rights Project, ACLU

No one should be afraid to call 911 when facing danger in their home.

Yet, across the country, towns and cities have passed local laws – often called nuisance or crime free ordinances – that punish property owners and push for eviction of their tenants when residents seek police and emergency aid. Such laws treat crime victims as a nuisance and leave them with an impossible choice: endure threats or violence without police protection, or call 911 and risk homelessness and even greater vulnerability.

A new Pennsylvania law, however, now promises respite from this kind of catch-22, which all too often leads domestic violence victims to remain in unsafe housing for fear of being evicted.

This was precisely the dilemma faced by Lakisha Briggs, a resident of Norristown, Pennsylvania, when the police responded to her home for reported domestic violence. Though they arrested her abuser, the police then told Ms. Briggs that two more calls for help would result in her eviction under a local ordinance.

After this, Ms. Briggs was terrified to call the police despite repeated and escalating attacks by her ex-boyfriend. She even begged her neighbors not to call 911 after she was stabbed in the neck with a piece of glass. Thankfully, each time someone else called for life-saving assistance. While Ms. Briggs survived, Norristown affirmed her fears and aggressively sought her eviction.

Last year, the ACLU filed a federal lawsuit on behalf of Ms. Briggs to challenge the ordinance. In response to arguments that it violated the Constitution and federal law, Norristown repealed the law and settled the lawsuit, paying $495,000 to Ms. Briggs and her attorneys and agreeing not to pass a similar ordinance. Other Pennsylvania cities, including Mount Oliver and Forest City, also recognized the negative impact of these ordinances and repealed them after advocacy from the ACLU and other allies. But Ms. Briggs' story remains far from unique, and the burden has fallen on domestic violence victims to come forward with stories of evictions and violence to prompt this change.

Until today, that is.

Responding to widespread attention on the perverse consequences of these ordinances, lawmakers in Pennsylvania took an important stand and unanimously enacted legislation to ensure that no one facing danger in their home will be penalized for calling 911. This morning, Gov. Tom Corbett signed that bill, providing protection for any resident, tenant, or landlord who faces penalty under a local ordinance because police or emergency services were called or responded to a situation where intervention was needed in response to abuse, crime, or an emergency. Callers who reasonably believe emergency response is necessary to prevent such an event are also covered. The law also authorizes residents and landlords to seek remedies in court against any municipality that violates these protections.

While this legislation is a vital step forward, municipalities across the country are increasingly enacting and enforcing nuisance ordinances. Most municipalities fail to consider the risk that these ordinances will deter people from reporting crime, further endangering crime victims and undermining public safety as a whole. Nor do they consider the devastating and disproportionate impact these laws have been shown to have on victims of domestic violence and communities of color.

The federal government, however, has taken notice. The U.S Department of Housing and Urban Development (HUD), recognizing nuisance ordinances as a fair housing issue, filed a separate complaint against Norristown. After pushing for repeal of the ordinance with the ACLU, HUD entered a conciliation agreement that requires training and ongoing monitoring of Norristown's activities.

These actions by the federal government send an important message: enforcement of similar ordinances may violate civil rights laws and could result in the loss of HUD funding. But state legislatures also must take action.

Pennsylvania has led by example and now joins Minnesota in passing legislation that affirmatively protects tenants' right to call the police. Earlier this year, the New York Assembly unanimously approved a bill that would establish the most comprehensive state protections yet. The full New York Senate did not take a vote on the bill before its term ended, but the ACLU, domestic violence advocates, and many others voiced their support and will continue to advocate for the bill in the upcoming legislative session.

While Pennsylvanians no longer have to choose between safety and housing, access to police and housing security should not depend on where you live. State and municipal lawmakers across the country should act to ensure that local laws do not undermine victim safety by punishing crime victims for violence perpetrated against them.

The ACLU wants to hear from anyone who has been affected by these ordinances, including landlords, tenants, fair housing and domestic violence advocates. If you have a story to share, please fill out oursurvey.

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