News & Commentary

“Everyone is aware of race. Dealing with racism is another matter,” said a keynote speaker at Facing Race 2014: A Multi-Racial, Intergenerational Gathering for Racial Justice Advocates.  I joined almost 1,600 people from across the United States and several countries in Dallas last weekend for the conference, which marked the 50th anniversary of the passage of the Civil Rights Act of 1964.

So this “lame duck” Congress may not be so lame after all – at least when it comes to increasing government transparency.

On Thursday, the Senate Judiciary Committee is set to consider a bipartisan measure that, while modest, would be one of the most significant improvements to the Freedom of Information Act in decades. Sponsored by Vermont Democrat Patrick Leahy and Texas Republican John Cornyn, we’re hopeful the committee will send the bill to the full Senate where it has a legitimate chance at passage, even in the politically fraught aftermath of this month's election.

The legislation would take several small but important steps to improve FOIA.

First and foremost, it would enshrine in law President Obama's pledge, made on his first day in office, to change the default response when the government receives a FOIA request to disclosure. While we've been critical of the Obama administration's approach to transparency on things like NSA surveillance, we strongly applauded this "presumption of openness," which stood in marked contrast to the approach of the Bush administration.

The bill would also encourage the release of documents in electronic format and would, for instance, require agencies to release documents electronically if they've been publicly released and requested more than three times. Furthermore, it would require additional reporting by agencies on requests denied and documents released.

Finally, it would clarify in the law that agencies cannot deny requests simply because the information requested would be embarrassing or merely technically fits one of the exemptions to FOIA (that is, the information could be covered by an exemption but release wouldn't result in harm). Additionally and importantly, it would limit FOIA's Exemption Five, which covers a broad range of documents covered by things like the attorney-client privilege and is often overused by agencies. Under the bill, only documents produced in the past 25 years would be eligible for withholding.

The ACLU has long argued that the First Amendment rights of Americans require public access to government information, especially in areas like national security, where the government has an abiding incentive to withhold information about fraud, waste, embarrassment, or illegality. FOIA is the most important mechanism in service of that First Amendment value.

We applaud Senators Leahy and Cornyn for their important legislation to make it a better law.

The ACLU is filing a Freedom of Information Act (FOIA) request today for information about a newly revealed Marshals Service program that uses aircraft to suck up location data from tens of thousands of people’s cell phones at a time.

Members of Congress and donors in cahoots to deceive not only the American voting public but the Federal Elections Commission (FEC) as well? 

If you believe that two men in a committed, monogamous relationship – where neither partner is living with HIV – face the same risks as an individual who has heterosexual sex with a commercial sex worker or someone who they know is living with HIV then the recommendation on Thursday from an advisory committee of the U.S. Department of Health and Human Services (HHS) will make sense.  Otherwise, you might find yourself scratching your head.

Wearing a cowboy costume and a purple bandana, Scott Panetti defended himself at his capital trial in Texas without counsel, where he tried to call the Pope, J.F.K, and Jesus Christ to the witness stand. In Tennessee, Richard Taylor represented himself in his capital trial wearing sunglasses to keep out the police voices and sat completely silent through his trial. Guy LeGrande served as his own lawyer at his capital trial in North Carolina, wearing a Superman shirt and telling the jury to kiss his “natural black ass” in closing argument.

Pew has a new poll out on Americans’ attitudes toward privacy, and it is full of interesting findings. A New York Times blog piece on the poll focused on the so-called “privacy paradox”—people’s seeming willingness to share personal information despite their professed concern over privacy (more on that below). But for me the most striking finding is that Americans’ confidence in the privacy and security of electronic communications is very low, with over half thinking that email, text messages, chat, and social media are “not at all” or “not very secure.” In too many ways, these beliefs are well-founded, and yet these are the mediums that Americans are using more and more to communicate in their everyday lives.

This piece originally ran on Slate.com on November 12, 2014.

NSA reform could be the thorn in the side of the Republican Party next year.