CCA Continues to Cite Misleading Study It Funded

July 3rd, 2014 No Comments   Posted in ACLU Nationwide
By Christopher Petrella, Researcher, U.C. Berkeley

As an academic, it’s my job to be a skeptic. 

That’s why, when two researchers at Temple University published a study last year claiming that for-profit prison companies can save states lots of money, I wanted to know how they’d reached their conclusions. 

Well, the answer isn’t surprising: the for-profit prison industry paid for it.

And we’ve seen this type of play before.

Industries, companies, and special interest groups often manipulate “facts” to cast themselves in a positive light. Whether by funding intellectually dubious studies or running misleading advertisements, many have tried to persuade others to buy products based on deception.

And that’s just what the Corrections Corporation of America (CCA) is trying to do here. The company’s promotional materials continually reference the Temple University study as “independent” confirmation of the benefits of private prisons. Moreover, the company uses this study to persuade states to offer them multi-million dollar contracts. 

This is problematic on several levels. First, it’s unethical to claim a study is “independent” when a company pays for favorable results. Second, it’s unscrupulous to curry favor with public officials by citing a bought-and-paid-for piece of research.  And finally, it’s unprofessional for university researchers to publish studies without disclosing their corporate benefactors, as the professors originally did here.

Though an ethics complaint was recently filed against the professors, CCA continues to include the Temple University study in its promotional materials. 

Today, in an Open Letter to CCA, I’m asking them to stop. According to my analysis, the study’s methodology is misleading and its conclusions are inaccurate.    

Here’s just one example. In California, CCA has negotiated a deal to house only 8,600 of the youngest, healthiest, and least expensive California prisoners in their out-of-state facilities. Publicly-run facilities, on the other hand, are responsible for housing individuals who are the most expensive to incarcerate and to treat.

The Temple Study looked at the operating costs of CCA versus publicly run facilities, and concluded that CCA is more efficient – without acknowledging or taking into account at all the fact that CCA and publicly run facilities each house dramatically different populations with significant differences in their cost of care. The striking differences in prisoner health, age, and cost by facility are indisputable and challenge the very legitimacy of the study that the for-profit prison industry funded and continues to publicize.

This is just one of the many reasons why the Temple University study is worth our scrutiny. You can read a more thorough analysis in my Open Letter to CCA.

Our country’s multi-billion dollar for-profit, private prison industry must stop citing a bought-and-paid-for study that is fundamentally misleading.

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Government Privacy Panel: One Step Behind Congress, the Courts, and the American People

July 2nd, 2014 No Comments   Posted in ACLU Nationwide
By Neema Singh Guliani, ACLU Washington Legislative Office

When Congress, the courts, and the American people disagree with you, it's probably time to re-think your position.

Yesterday, the Privacy and Civil Liberties Oversight Board (PCLOB) released its report on the troubling Section 702 surveillance program – a program that falls under the Foreign Intelligence Surveillance Act (FISA). Section 702 is designed to target individuals or groups abroad, but, disturbingly, it is increasingly being used to conduct surveillance on individuals and entities inside the United States.

So, how is the government getting around the apparent intent of Section 702?

When the government targets individuals whom they reasonably believe to be living abroad, the information of individuals inside the United States is frequently swept up, too.  For example, if someone in the United States happens to call or email a person abroad, the government simply makes a mistake and inadvertently collects a communication, or a communication abroad is "about" a person in the United States – it can all be snapped up under the purview of Section 702.

Once the government has collected this information, it stores it in enormous databases and can — through the "backdoor" search loophole — search it specifically for information about persons in the United States. In other words, even if officials claim they didn't intend to collect information about you, once they have it, they can deliberately comb through it.

All this happens with no real oversight. The Foreign Intelligence Surveillance Court never makes a determination that there is probable cause to believe the person being targeted lives outside the United States or is an appropriate target. And it does not determine whether searching the information collected for communications of U.S. persons is warranted.

Unfortunately, the PCLOB, Congress, and the NSA apparently have no idea how often the information of people inside the United States is collected. What we do know, however, is that in 2013, over 250 million internet communications alone were swept up under Section 702. And, in 2013, the NSA conducted approximately 9,500 searches involving terms associated with U.S. citizens or legal residents.  That number doesn't include queries by the CIA and FBI.

The PCLOB concluded that backdoor searches are permitted under Section 702, but came to no consensus regarding the additional protections that should be put in place to protect privacy. Some board members recommended that the FISA courts be required to approve these types of searches, though under a relatively low standard of proof.  Others simply thought additional procedures at the relevant agency were needed (and we know how that's worked out).

Fortunately, few outside the PCLOB agree that these minimal reforms are enough.

Just last month, Democrats and Republicans in the House overwhelmingly agreed to close the backdoor search loophole. Moreover, the American public appears to be increasingly concerned by surveillance potentially conducted under Section 702. A September 2013 poll found that 71 percent of Americans do not want the government eavesdropping on their phone calls without court warrants. And, a November 2013 poll found that 57 percent of Republicans, 53 percent of Democrats and 56 percent of independents think it is unacceptable to monitor the phone calls of allies abroad, such as German Chancellor Merkel.  Just recently, in Riley v. California, even the Supreme Court acknowledged that internal oversight is a weak substitute for the requirements of the Fourth Amendment.

It's just time for the PCLOB to catch up to the rest of us.

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The Privacy Oversight Board Should Have Listened to Senator Obama

July 2nd, 2014 No Comments   Posted in ACLU Nationwide
By Alex Abdo, Staff Attorney, ACLU National Security Project

In 2008, Barack Obama, then a U.S. senator, realized that if an important surveillance law were to pass, Americans’ right to privacy in their international communications would be (in the later words of the Department of Justice) “significantly diminished, if not completely eliminated.”

That law was the FISA Amendments Act — often referred to as the FAA or Section 702 — which was enacted that year and which gives the government nearly unfettered authority to monitor Americans’ international calls and emails. Today, the government’s independent Privacy and Civil Liberties Oversight Board issued a disappointingly weak report on the warrantless wiretapping of Americans’ international communications under the FAA.

There are many problems with the report. Most importantly, it fails to address whether the supposed benefits of the government’s sweeping surveillance could be achieved with a requirement that the government get a warrant before accessing Americans’ calls and emails.

The government has defended its warrantless surveillance under the FAA by arguing that its surveillance targets only foreigners overseas. But, as the privacy board recognized, one of the government’s primary uses of the statute is to collect those foreign targets’ communications with Americans.

In other words, the government uses the FAA to spy on Americans’ international communications — without a warrant and without suspicion of wrongdoing.

It does not have to be this way.

In 2008, then-Senator Obama co-sponsored an amendment to the FAA that would have prohibited the NSA from acquiring or looking at communications to or from someone in the United States without specific court approval. Though not perfect, it would have erected a reasonable yet critical barrier between the communications of law-abiding Americans and the all-seeing technology of the NSA.

Senator Obama’s amendment would not have prevented the government from wiretapping Americans’ cross-border communications, but it would have required the government to get a warrant before acquiring or reading them. The amendment ultimately failed, but it reflects a commonsense limit on the NSA’s nearly unlimited monitoring of Americans’ international calls and emails.

You would expect the privacy board to consider whether the supposed benefits of the FAA would be thwarted by such a commonsense protection for privacy. But it didn’t.

Instead, the privacy board trotted out the government’s success stories with the FAA. The short summary: When the government collects hundreds of millions of communications a year, some of those communications turn out to be useful. That’s not terribly surprising. The FBI could surely catch criminals if it had a free hand to break down every door in the country without a warrant.

The real question, though, is whether such limitless surveillance is necessary, and, in particular, whether demanding the procedural protections that the Fourth Amendment has historically required would prevent the government from doing its job. There is no reason to think that it would, and on that question both the privacy board and the government have been conspicuously silent.

Although the board’s report is disappointing, it is by no means the last word. Congress has already heard Americans’ outrage in the aftermath of the revelations of the last year and considered legislation that would rein in some of the NSA’s most abusive practices. Congress should keep the momentum going by prohibiting the NSA from collecting and searching our international calls and emails unless it has a specific order allowing it to do so. 

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The Civil Rights Act at 50: A Conversation with Rep. John Conyers

July 2nd, 2014 No Comments   Posted in ACLU Nationwide
By Deborah J. Vagins, ACLU Washington Legislative Office

Listening to Rep. John Conyers (D-Mich.) speak is like having a real life history lesson. Mr. Conyers is the second-longest serving member of Congress, having been in office for nearly 50 years.  After participating in the March on Washington in 1963, he entered Congress in the middle of the fight for civil rights and, as a leading civil rights activist himself, has played a key role in passing, protecting and expanding the our nation’s most vital civil rights laws.

Today is the 50th anniversary of the Civil Rights Act of 1964. This landmark law made it illegal to discriminate on the basis of race, color, national origin, religion, and gender. It began to provide equal opportunities in areas like employment, voting, public accommodations, and education. Many know it better as the law that integrated lunch counters and created the Equal Employment Opportunity Commission to protect American workers from discriminatory workplace practices.

I had the honor of speaking to Mr. Conyers about this groundbreaking law. We spoke about what it was like running for office while Congress was debating the bill, the atmosphere in Washington immediately after its passage, what this law means for our country, and what is left to do to fulfill its promise.

The interview has been edited for space. The views expressed in this interview are Rep. Conyers’ own.

Let’s go back to the early days of the Civil Rights Act. You were campaigning for your first term in Congress while the bill was being debated. What do you remember about that time?

Many people don’t remember how violent and dangerous it was in the South at that time. This bill was the culmination of a long list of incidents going on all over America, particularly in the South. The general public was exhausted. The passage of the act was successful because many people, if not most people in the country, were tired of and embarrassed by the violence that accompanied resistance to ending segregation. That message got to a lot of the members in Congress.

I know that some in Congress thought they could undermine the bill’s chances of passage if they added protections for gender, but it passed anyway.

Yes, gender equality and equal treatment of the LGBT community were very remote in those days. But they were [both] recognized in the breadth of the Civil Rights Act.

How did President Lyndon Johnson convince Members who had not been active in civil rights to support this bill?

I think the loss of John Kennedy emboldened Lyndon Johnson to say, “Now the time has come.” Everyone was watching [him], because he hadn’t been that conspicuously in support of civil rights and voting protections as a senator. But he helped persuade a number of senators to calm down and get it over with in as dignified a way as possible. He did a good job in that regard.

Did the presence of the Civil Rights Act change the dynamic in Congress after its enactment?

There were two schools of thought in American politics during that time. There were those who were not willing to throw in the towel and agree that we were coming into a new era. The Southern senators—who were then Democrats—were going to resist to the bitter end bringing about any kind of social equality, and they meant it. One senator filibustered for 14 hours before he finally gave in.

This [division] wasn’t over because we passed the Civil Rights Act of 1964. These were very turbulent times, and even Washington, D.C. itself was still in the process of fully desegregating. It was very clear to a lot of people that this was something that had to change and it couldn’t go on any longer. But it also meant that there were a large number of people that weren’t for the change.

Has the Civil Rights Act fulfilled its promise 50 years later?

It’s become clear that this struggle isn’t over. Much of the violence is gone, which provoked and embarrassed so many people, but we’re still trying to make sure that we aren’t losing rights. Traditional civil rights groups [like] the NAACP [and] the ACLU are making sure we continue this and we don’t let the Act be treated as a bit of unsavory history in that past.

The voting rights battle, the battle for gender equality, all of these fights find their basis in the Civil Rights Act. And there’s been a few setbacks in recent years, but it’s clear that the president and his administration are relentless in fighting for these rights.

Turning to next year, we’re coming up on the 50th anniversary of the Voting Rights Act. You’re one of the biggest champions for updating and modernizing the law after one of its most powerful provisions was struck down by the Supreme Court last year. What was it like being in Congress when that passed originally in 1965?

The Voting Rights Act of 1965 was the first large measure that I was able to participate in as a member of Congress in my career. At that time, there was a lot of cooperation between Republicans and Democrats. We were working together pretty well. It was a huge vote, and we now are trying to keep it in repair so that we can continue forward with the progress.

Many of us in Congress were stunned by the United State Supreme Court decision in Shelby County vs. Holder, when they knocked out the Voting Rights Act. But the battle isn’t over, and we’re still trying to make sure that everybody under the Civil Rights Act has the ability to vote and make it as easy as possible to vote so that we get more people out.

As one our strongest voices in Congress for civil rights, what advice do you have for this generation in working to protect and expand our rights?

It’s like moving forward with all progressive issues. What we have to do is make sure that people understand that the battle isn’t over. We’ve had some incredible circumstances here.  It means that we have to look and learn and mak[e] people understand that this isn’t over by a long shot. It’s a little bit more sophisticated now, but the struggle continues.

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Drones, Accidents, and Secrecy

July 2nd, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

The Washington Post recently ran some amazing articles on the safety record of drones. The three-part series focuses on the more than 400 large U.S. military drones that have crashed overseas, domestic U.S. crashes of military drones inside and outside military airspace, and the record of incidents of small drones coming dangerously close to civilian aircraft within the United States. Fortunately nobody has been killed in any crashes yet, but it all makes for gripping reading.

One of the dismaying things about the series is the reflexive amount of secrecy that agencies still engage in around the safety record of domestic drones. For example:

  • The military refuses to release data on its domestic drone accidents, and the FAA won’t release it either, saying that the Pentagon provides the data only on condition it remain secret. Through a FOIA the Post did obtain records of 47 major drone crashes, but the military still refuses to provide details about near-misses, or about any crashes that inflict less than $2 million in damage.
  • After a 375-pound drone crashed into an elementary school playground in Pennsylvania, the manufacturer of the drone refused to comment, citing confidentiality provisions of its contract with the Army.
  • When the Navy lost control of a 2,000-pound drone and it flew into the highly restricted Washington DC airspace, it kept the incident secret. Reporters got wind of it, but the Navy still refuses to release its investigative report of the incident.

The Post has done excellent work in uncovering so much about the drone safety record via FOIA and other investigative tools. We’re still enough of an open society that the paper was able to learn quite a bit about many incidents. But it shouldn’t take investigative reporters working for a major newspaper to uncover these facts. As with any new technology, it is inevitable that accidents will happen that will occasionally bring these craft, some of which are as large as Boeing 767s, plummeting to earth (The Post reports that a 767-sized drone crashed in rural Maryland in 2012). Drones are the subject of much public attention and controversy, and the FAA is moving to begin integrating drones into our national air space.

If our skies are to fill with drones, our government and military should be as open and forthcoming as absolutely possible about this technology and its potential pitfalls. We all have an interest in open government when it comes to the safety of this new technology.


5 Things Women Should Know About the Hobby Lobby Decision

July 2nd, 2014 No Comments   Posted in ACLU Nationwide
By Brigitte Amiri, ACLU Reproductive Freedom Project

Since the Supreme Court ruled that Hobby Lobby can deny contraceptive coverage to its female employees, a lot of people have questions about what that ruling means for women. While there are still some question marks, here are five things you need to know:

  1. Most women will not lose their health insurance coverage for contraception required by the Affordable Care Act. While the Hobby Lobby decision is devastating on many levels, most women will continue to have their birth control covered in their health plans without a co-pay or deductible.
  2. The Hobby Lobby decision allows closely held corporations - as defined by state and federal law - with religious objections to providing health insurance coverage for some or all forms of birth control to refuse to do so, even though this is required under the Affordable Care Act. Approximately 60.4 million people are employed by “closely held” corporations in the United States. We have no idea how many companies will take advantage of the Hobby Lobby ruling, but we hope it will not be many.
  3. In addition to the Affordable Care Act, 28 states have laws that require contraception coverage if an employer’s health plan covers other prescription drugs. These laws, however, do not apply to all health plans (self-insured plans are excluded), and unlike the Affordable Care Act requirement, may require you to pay a co-pay or a deductible. The Hobby Lobby decision doesn’t affect these laws.
  4. We don’t yet know what impact the case will have on other areas of the law, including anti-discrimination measures and insurance coverage for other health care. What we can be sure of is that businesses may now feel emboldened to assert religious objections to other laws. The question will then be how the courts will assess these companies’ potential claims.
  5. There is something we can do. This doesn’t end with the Supreme Court. Because the Hobby Lobby decision turned on the interpretation of a federal statute, Congress can fix this decision by changing the law. We call on Congress to do so.

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Four Bad Voter Suppression Measures We Have to Kill in Four Months

July 1st, 2014 No Comments   Posted in ACLU Nationwide
By Dale Ho, Director, Voting Rights Project, ACLU

The clock is ticking.  With just four months until Election Day, we’re fighting to stop four voter suppression measures that would keep Americans from casting their ballots.

For those keeping track at home, and for those of you who aren’t in the know yet, here’s an update:

North Carolina.  North Carolina’s sweeping voter suppression law, among other things, cuts early voting, bans same-day registration, and prohibits the counting of ballots cast at the wrong precinct.  The ACLU and co-counsel, the Southern Coalition for Social Justice, filed suit against this voter suppression, and on May 19 filed a motion to stop the law before the November election.  A hearing on our motion is scheduled in federal court in North Carolina on July 7.

Arkansas.  On April 24, the ACLU of Arkansas won a court order ruling that Arkansas’ strict voter ID law violates the Arkansas Constitution.  The trial court, however, halted the decision, permitting the ID law to go into effect for the primary elections.  That meant nearly 1,000 voters were disenfranchised.  On June 24, the ACLU filed a motion with the trial court to lift the stay, and block the ID law for the November election.  Meanwhile, the case is headed to the Arkansas Supreme Court.

Kansas.  The ACLU is challenging Kansas’s dual registration system, which segregates voters into two separate and unequal classes:  those who can vote in all elections (who need to show a photo ID when they vote), and those who can vote for federal offices only.  On June 27, we filed a motion to stop this illegal system, as a violation of Kansas law.  A hearing on our motion is scheduled for July 11 in Topeka.

Ohio.  The ACLU is challenging Ohio’s elimination of a week of early voting, evening voting hours, all but one Sunday of early voting, and same-day registration.  Yesterday we filed our motion in federal court to stop these cutbacks before the November elections.

In other summer voter suppression news, our successful challenge to Iowa’s unlawful voter purge program is on appeal to the Iowa Supreme Court.  Meanwhile, our successful challenge striking down Wisconsin’s voter ID law is on appeal this summer in the U.S. Court of Appeals for the Seventh Circuit.

We need to end these dangerous voter suppression measures before Election Day. For more information about the ACLU’s fight against voter suppression, go to https://www.aclu.org/voting-rights.

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Americans Deserve an Explanation for Targeted Killings

June 30th, 2014 No Comments   Posted in ACLU Nationwide
By Jameel Jaffer, ACLU Deputy Legal Director and Director of ACLU Center for Democracy

The most important parts of the drone memo are the parts you can’t see.

The memo, released by a federal court on Monday in response to lawsuits filed by the ACLU and The New York Times, addresses the government’s authority to carry out “targeted killings” of American terrorism suspects. Written in the summer of 2010 by the Obama administration’s Office of Legal Counsel, the memo supplied the legal basis for the government’s premeditated killing of Anwar al-Awlaki, an American, in the fall of 2011. 

The memo sets out a legal argument based on stipulated facts – that is, based on facts assumed to be true. Al-Awlaki was a leader of a group “in league with” Al-Qaida, the memo says. The group had a “significant and organized presence” in Yemen, from which it was planning attacks against the United States. Al-Awlaki himself presented a threat that was “continuing and imminent.” Killing him was feasible, but capturing him was not.

Once these facts are assumed, the memo’s ultimate conclusion – if not its legal analysis – follows inevitably. How could it not? No government would disclaim the authority to use force as a last resort against a serious threat that was truly imminent. 

But even if we assume, against the evidence, that the memo is using words like “imminence” and “feasible” in conventional ways, what assurance do we have that the facts the memo accepts as true were actually true? What assurance do we have that Al-Awlaki was who the memo says he was, and that he was doing what the memo says he did?

Read the rest at MSNBC.com.


A Loss for Women Today in the High Court

June 30th, 2014 No Comments   Posted in ACLU Nationwide
By Brigitte Amiri, ACLU Reproductive Freedom Project

The highest court in the country ruled today that it is acceptable for closely held corporations to use their religious beliefs to take away benefits guaranteed to their employees by law – something the Supreme Court has never before sanctioned. Everyone has the right to his or her religious beliefs, but those beliefs cannot be imposed on others.

At issue in today’s case is part of the Affordable Care Act that requires health plans to cover contraception without a co-pay. This law was designed to ensure women’s equality by eliminating the disparities in health care costs between men and women, and to ensure women have the ability to make decisions about whether and when to become parents, which in turns allow them to participate equally in society.

Women who work at Hobby Lobby and other closely held companies with religious objections to providing contraception coverage will now be denied that coverage, which will impact their reproductive health and other aspects of their lives. These women will also face dignitary harm knowing that their employers are singling out health care coverage that only women need.

Most women – including myself – will not lose their contraceptive coverage as a result of today’s decision. But today, we all lost. As Martin Luther King, Jr. said: “Injustice anywhere is a threat to justice everywhere.”

The ACLU will fight to ensure that all women get the contraception coverage they need and deserve.  For starters, we call on Congress to fix today’s decision to rectify today’s injustice. We hope you will join the fight with us.

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Interactive Map: Privacy in the States on Four Key Issues

June 30th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Allie Bohm, Advocacy & Policy Strategist, ACLU

In the last few years, we’ve seen an unprecedented number of privacy battles being waged in state legislatures. Today we’re launching an interactive web map that shows the privacy laws in place across the country on four of those issues:

  1. law enforcement access to electronic communications content
  2. location tracking
  3. automatic license plate readers
  4. domestic surveillance drones

If we can address these four key issue areas, we’ll go a long way toward protecting privacy in the digital age.

Fully 24 states have laws on the books (or binding court decisions) providing at least some privacy protections in at least one of these categories. That’s up from only two states (Maine and New Hampshire) in 2012.

Of course, the devil is in the details of these laws, and some are more protective than others. At the largely inadequate end of the spectrum, there’s Texas’s drones law, which I’ve written about here. That law gets it backwards and provides insufficient protections against government abuse of drones while prohibiting private use in ways that likely violate the First Amendment. Just as bad is Tennessee’s location tracking law, which fails to protect cell phone location information obtained from the phone company (which is the vast majority of cell phone location information obtained by the government), as well as anyone who has “checked-in” on a social networking site in the 24 hours before his or her location was sought by law enforcement. Legislators in these and some other states rightly recognized the need to address privacy in the digital age, but their solutions came up short.

The clear winner for most privacy-protective state is Utah, which not only provides privacy protections against government abuse of location tracking, electronic communications content, automatic license plate readers, and drones, but also for electronic data.

But we should all be winners. If there’s any lesson from this map, it is that in every geographic region in this country—and in every color state—people are clamoring to update privacy laws to keep pace with technology. Congress should be, too. And it should start by passing the E-mail Privacy Act to provide protections for electronic communications content nationwide. If it does so, 25% of the fight (as reflected on our map) will be won—and that bill has enough co-sponsors to guarantee House passage.

In the meantime, here is our interactive state of the states privacy map. If you click on your state, you’ll find links to the actual laws or court decisions there. We encourage you to review the text or check out our blog for more information on just how protective the laws are in your state.


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