ACLU National

Women make up almost half the workforce today, and, if they become pregnant, most will work throughout their pregnancy. Given this reality, you probably think the stories below are works of a bygone era. Well, you’d be wrong.

• A woman was 16 weeks pregnant and worked as a cashier at a large retailer in New York City. One day she fainted and was taken to the emergency room. Despite doctor’s orders that she remain vigilant about drinking water, she was severely dehydrated. When the physician asked why she was not drinking enough fluids, she said that her boss would not allow her to drink water while working at the cash register.
• When Shelly (not her real name) became pregnant, she was working two jobs in Indiana to support her family: the overnight shift stocking shelves for a major national retail chain and the day shift packing items to ship for a medical supply company. Her doctor advised her not to lift more than 20 pounds. The medical supply company immediately accommodated these restrictions, but the major national retailer refused to modify her duties. She experienced a lot of pain while doing the heavy lifting and miscarried shortly thereafter.
• An airline ticket agent in Louisiana was told by her doctor not to lift anything heavy at work. Her employer refused to provide her with a “light duty” assignment and told her that she would be placed on unpaid leave if she brought a doctor’s note. Not having an income wasn’t an option, so throughout her pregnancy, she continued to lift heavy bags and spent 10- and 12-hour days on her feet. Toward the end of her pregnancy, she suffered stress-induced toxemia and went into labor prematurely. Her child suffered numerous health complications.
• Julie worked as a full-time driver at UPS. During some months, the size and weight of the packages explode and the work can be physically exhausting. When she became pregnant, she requested a light duty position, just as she had done when she had been injured on the job. But UPS refused to accommodate her and put her on unpaid leave for the rest of her pregnancy.

Stories like these are all too common, and that’s why we need the Pregnant Workers Fairness Act (PWFA), which was introduced in Congress today.

Despite the passage of the Pregnancy Discrimination Act over 30 years ago, which prohibits discrimination based on pregnancy, childbirth, or related medical conditions, some employers continue to deny pregnant women the minor job modifications that could protect not only a woman’s pregnancy but also a family’s economic security, forcing pregnant women out of their jobs.

The PWFA would make it crystal clear to employers that they can’t treat pregnant women worse than other workers who have certain job limitations and instead must make reasonable accommodations if doing so doesn’t pose an undue hardship on the business.

Even though Mother’s Day is over, do one more thing for your mom and all the other moms out there: call your members of Congress and ask them to co-sponsor the Pregnant Workers Fairness Act today.

You can find the phone number for your representative here and your senators here.

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The hunger strike in Guantánamo is now in its fourth month. At the military’s latest count, 100 of the 166 prisoners are on strike, motivated in large part by their indefinite imprisonment without charge or trial. Twenty-nine of those men are being force-fed, the largest number yet during this hunger strike. Force-feeding in Guantánamo is a brutal, degrading experience.

On Monday, the ACLU and 19 other organizations sent Secretary of Defense Chuck Hagel a letter stating our opposition to the ongoing force-feeding. As the letter makes clear, the Guantánamo force-feeding procedures constitute cruel, inhuman, and degrading treatment:

The prisoner is strapped into a chair with restraints on his legs, arms, body, and sometimes head, immobilizing him. A tube is inserted up his nostril, and snaked down his throat into his stomach. A liquid nutritional supplement is then forced down the tube. The prisoner is restrained in the chair for upwards of two hours to prevent him from vomiting. As Guantánamo hunger-striker Samir Naji al Hasan Moqbel explained recently: “I can’t describe how painful it is to be force-fed this way. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat and stomach. I had never experienced such pain before.” Debilitating risks of force-feeding include major infections, pneumonia, collapsed lungs, heart failure, post-traumatic stress disorder and other psychological trauma.

The most recent standard operating procedure (SOP) used by the military in Guantanamo regarding hunger strikes was published yesterday by Al Jazeera. The newest version of the SOP, which was previously updated in 2005, was adopted in March 2013, and makes a few key changes. Critically, the chief medical officer in Guantanamo no longer makes the final call as to who is labeled a hunger striker. Now, the military commander of the base – who is not a doctor – makes that determination. Deleted is the 2005 SOP’s language directing military personnel to make “every effort … to allow detainees to remain autonomous” up to the point the military believes force-feeding is necessary. The current SOP does not mention autonomy even once. Whereas the 2005 version required personnel to “make every effort to convince the detainee to accept treatment,” the current SOP only requires “reasonable efforts.”

When the Defense Department released the 2005 SOP pursuant to a Freedom of Information Act request, it withheld the actual force-feeding procedures, claiming (quite questionably) they were “related solely to the internal personnel rules and practices of an agency.” The SOP published yesterday, however, is unredacted, and provides graphic detail. It describes the mask put on the men before they are strapped into the force-feeding chair, the full array of restraints used against them, the denial of access to water immediately after feeding, and how if the men vomit – even if involuntarily – after force-feeding, they are to be strapped back down.

We have also urged Secretary Hagel to immediately investigate Guantánamo prisoners’ recent reports of excessive force, isolation, temperature manipulation, and forced sleeplessness. Standing on their own, the allegations raise serious concerns; combined with force-feeding, they become even more worrying.

Of course, the military should be doing far more than ending cruel, inhuman, and degrading force-feeding and any abuse of the men. It should be working diligently and urgently to release Guantánamo prisoners, starting with the 86 men already long cleared to leave the prison. The ACLU will continue to press on all these matters until the rule of law is restored and ill-treatment in Guantánamo ends.

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FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, media@aclu.org

NEW YORK – The Department of Justice secretly obtained two months' worth of phone records of Associated Press reporters and editors, according to an AP story.

The following statement can be attributed to Laura W. Murphy, director of the American Civil Liberties Union Washington Legislative Office:

"The media's purpose is to keep the public informed and it should be free to do so without the threat of unwarranted surveillance. The Attorney General must explain the Justice Department's actions to the public so that we can make sure this kind of press intimidation does not happen again."

The following statement can be attributed to Ben Wizner, director of the ACLU Speech, Privacy, and Technology Project:

"Obtaining a broad range of telephone records in order to ferret out a government leaker is an unacceptable abuse of power. Freedom of the press is a pillar of our democracy, and that freedom often depends on confidential communications between reporters and their sources."

I am a high school senior at Red Lion Area High School in Pennsylvania.  As a student who happens to be transgender, my life isn’t all that different from other students in my class, except that I came out the summer before my junior year and have been going by my male name ever since.  I try hard to make good grades, work at a part –time job, and have a wonderfully supportive family and an awesome girlfriend.  My high school, like any other, has a senior prom. Our prom always has a king and a queen, and every senior gets a spot on the ballot for royalty. This year was my turn to get a chance at king like every other boy in my class. 

I took all the proper steps to secure my name on the list where it belongs: the boys’ ballot. But on the day voting started, without warning, I found that I wasn’t on the boys’ ballot – instead, my old female name was listed under candidates for prom queen.  It was the most humiliating and hurtful thing that has ever happened to me at school.  Soon after, I learned that my school’s principal had stepped in and changed it because he was “uncomfortable” with me being listed as a boy. What’s more, when my girlfriend complained about this on Facebook, the principal threatened to not let her go to prom with me unless she took down her statements calling him out for discrimination.

With the help of the ACLU, we got the school to back down from that threat, and even though there wasn’t enough time to correct the ballots, my girlfriend and I still had a great time with our friends at prom a couple of weekends ago.  But that doesn’t make up for the humiliation I experienced, and doesn’t mean that other transgender students at Red Lion won’t be treated just as disrespectfully in the future.  I’ve asked for a public apology and for new policies to protect future students from gender identity discrimination at my school.  And for our graduation, which is coming up on June 7, I’ve asked to be allowed to wear the boys’ cap and gown and for my male name to be read aloud when I cross the stage to pick up my diploma.

The school has agreed to let me wear the boys’ cap and gown, but won’t budge on anything else.  They refuse to promise to do anything to help other kids like me, as if pretending I’m the only transgender student they’ll ever have at their school will make it so.  They refuse to apologize to me, even though they know the principal’s actions were mean-spirited and hurtful.  And they insist on reading my female name at graduation, even though I’m working on getting my name legally changed and most people have been calling me Issak for almost two years now.  Reading my male name at graduation wouldn’t hurt anyone, but they KNOW that reading my female name only serves to hurt me more.  Obviously, it’s more important to them to push around an 18-year-old than it is to make the school a safe space for its students.  The students at Red Lion Area High School deserve better treatment and better adult role models than this.

While it’s too late for me to have a chance at Prom King, it’s not too late to show my school that the way it has treated me is unacceptable.  My friends and I are asking supporters to sign this petition, which we’re going to present to the school board at its meeting this Thursday.  ALL schools should try to be safe, welcoming spaces for all of their students.  And my school should be no different.

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This is the story of two couples; two couples who come out of the same post-war generation, and who built their lives around the same emotional core of love, commitment, and devotion to one another. And yet, their relationships were marked very differently by history and by the laws that governed their lives.

Both relationships begin with a dance.

To hear my father tell it, my mother first caught his eye as she ran to catch the morning commuter train out of Rockville Center. She would be wearing a chartreuse raincoat and would be rushing off, as he would later learn, to her secretarial job in Manhattan. They would eventually meet at a St. Patrick's Day dance at a nearby Catholic church. Six months later, in the fall of 1947, they were married.

When Edie Windsor tells the story of her life with Thea Spyer, she always begins with a dance. It was 1963, at a restaurant in Greenwich Village where Thea first caught Edie's eye. Dancing followed dinner, and they danced until Edie wore a hole in her stocking. After that first night, they would look for as many opportunities as possible to dance with one another. Four years later, they moved in together. And while marriage was not an option for two women in 1967, they knew that they wanted to spend the rest of their lives together. To avoid unwelcome scrutiny, when Thea proposed to Edie with a diamond brooch, they only shared the news with a small circle of trusted friends. And thus began their very long engagement.

In many ways, my parents and Edie and Thea lived parallel lives. My parents eventually settled on the North Shore of Eastern Long Island, buying a two-story colonial and raising four children. They had a storybook marriage, almost literally something out of an Ozzie and Harriet script. My dad was a banker and my mom was a stay-at-home mother. As children of the Depression, they focused on securing our future. They worked to ensure that we had what we needed, and they saved so that we could go to college and they could retire without becoming a burden to their children. Most of all, they taught us the value of hard work and of treating others the way you would want to be treated. For my father, in particular, treating people fairly was a guiding principle.

I now know that one of the most remarkable things about my parents was their marriage and the bond that they so clearly shared. It was a gentle and respectful bond. Every night, when my father got home from the office, they would sit down together at the kitchen table and talk about their respective days. I was not interested in their conversation at the time, but I did count on seeing them together at the table, punctuating our day with their companionship.

I see that same enduring companionship in Edie and Thea's life. Edie was a successful computer programmer at IBM, and Thea -- Dr. Spyer -- was a clinical psychologist with an active private practice. They worked hard, paid taxes, traveled the world together, and entertained friends in their Manhattan apartment and their modest summer home in the Hamptons. Granted their lives were perhaps more glamorous than that of my suburban family's in the 1960s and 70s, but like my parents, they were there for each other at the beginning and the end of each day. They shared their joys, their challenges, and their sorrows. To this day, four years after Thea's death, Thea is the first person Edie wants to talk to when something ordinary or extraordinary happens in her life. I am quite certain that my mother -- six years after my father's death -- knows exactly how Edie feels.

And here again, I see my mother and Edie, despite their obvious differences, sharing a very important life thread. Both stood by as the love of their life struggled through a debilitating illness. For my parents, it was Alzheimer's. For Edie and Thea, it was multiple sclerosis (MS).

In 1977, Thea was diagnosed with MS which gradually caused progressive paralysis. For decades, Edie helped Thea manage as she went from using a cane, to crutches, to a manual wheelchair, to a motorized wheelchair that she could operate with her one working finger. According to Edie, it was like MS happened to both of them. It gradually changed their lives, but they faced Thea's illness together. MS eventually limited their options, but it never stopped them from dancing or diminished the love and admiration they had for one another.

As Thea's condition worsened, Edie would periodically ask Thea if she wanted to finally get married. Though getting married would have fulfilled their lifelong dream, Thea wasn't sure she had the physical stamina to see that dream become a reality. But when it became clear that she would not likely live more than a year, she faced her prognosis by once again proposing to Edie: "Do you still want to get married?" Edie joyfully replied, "Yes!"

But it was 2007 and they could not yet marry in New York as they had always planned. Instead, joined by a physician and several close friends, they flew to Toronto, where they were married on May 22, 2007.

Edie and Thea spent the next two years happily married in spite of the toll that MS and Thea's developing heart condition was taking on them. Edie will tell you, "It was a love affair that just kept on and on and on," even as Thea's condition got profoundly graver. Thea would ask Edie, "I'm dying, aren't I?" Edie would gently comfort her, "We're both dying honey. We're old ladies after all." They were old ladies who had spent more than 40 years loving and caring for each other. Now was no different: Three weeks before Thea Spyer died, she turned to Edie and said, "Jesus, we're still in love aren't we?" And they were.

For my parents, after more than 50 years of marriage, my father started to show signs that something was not quite right. First little things, like words forgotten, then bigger things like not knowing how to put toothpaste on a toothbrush, or lying in bed late at night and imploring my mother to take him home; they were of course home already. For years, my mother cared for him. For too long, she shielded us from what was really going on. But eventually the disease progressed to a point where even my tough- as-nails mother could no longer care for him at home. My father spent the last two years of his life in a Veteran's home, confined to a wheelchair, and gradually losing the ability to do anything on his own. My then-80 year old mother would visit him and spend every day by his side. Though he could no longer communicate with us, it was clear that he knew somehow that he belonged to us and even the Alzheimer's could not erase the years of companionship my parents had shared. Their love had left an indelible mark on their hearts. Two days before my father took his last breath, my mother leaned over and kissed him goodbye for the evening as she always did. "I love you, Jim." He reflexively kissed her back, and then, looked at her and said, "I love you too, Mary." Those were his last words.

At roughly the same time, Edie and my mother had to face their lives without their respective spouses, the people they had shared every aspect of their lives with for decades. Soon after Thea's death, grief-stricken, Edie suffered a severe heart attack and received a diagnosis of stress cardiomyopathy, or "broken heart syndrome." My mother's broken heart did not manifest itself in sickness, but her sadness was palpable for months. Gradually, with her grandchildren and children circling around her, she found a way out of her grief. And while she still misses my father tremendously, she has found joy again in her life.

For Edie, the road has been harder, due in large part because of a legal system that treats same-sex couples like Edie and Thea very differently from how it treats heterosexual couples like my parents. When Thea died, she left all of her possessions to Edie, but because of the Defense of Marriage Act (also known as DOMA), Edie was forced to pay more than $360,000 in federal estate taxes. When my father died, he too left all his possessions to my mother, and though there was certainly a mountain of paperwork to wade through, my mother did not owe the federal government a dime.

When it came to these two marriages both built on love, commitment, and devotion, because of DOMA, our federal government failed to treat them equally. Until 1996, federal law contained no comprehensive definition of the words "marriage" or "spouse." DOMA changed this by restricting the definition of marriage to "only a legal union between one man and one woman as husband and wife." For all intents and purposes, DOMA designated Edie and Thea strangers, burdening Edie with an enormous tax bill on top of her grief.

My father and I never talked about marriage for same-sex couples, but I know that he would have understood the shameful lack of fairness that DOMA enshrines.

Edie found a way out of her grief by standing up to the injustice of DOMA. In 2010, she challenged the constitutionality of DOMA in federal court. In March, Edie brought her case before the nine Justices of the U.S. Supreme Court, which will issue a decision by the end of June. As the Justices consider Edie's challenge, I hope that they can see Edie and Thea's marriage for what it truly was: a love story for the ages, and that they will duly honor that love by finally overturning this unjust law.

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Former Senator Joseph Lieberman recently charged that mistakes by U.S. security agencies were responsible for failing to stop the Boston Marathon bombing. I recently wrote about how mass surveillance makes this kind of recrimination inevitable, because once a government agency spies on a person, they become in a sense responsible for any actions that that person takes. To paraphrase Colin Powell, we might sum it up as “You surveil him, you own him.”

I recently came across a good analogy for why it’s deceptively hard for security agencies to detect and stop out-of-nowhere terrorist attacks like the Boston bombing—and why mass surveillance isn’t likely to help. It comes from the book The Drunkard’s Walk: How Randomness Rules Our Lives, by the physicist and writer Leonard Mlodinow, in a discussion of Brownian motion.

Brownian motion, you may recall, is the random jiggling of molecules in a liquid or other substance. A dye molecule floating in a seemingly still glass of water will randomly move about, covering about an inch in three hours, buffeted by random collisions with the smaller water molecules that surround it.

What would it take to actually explain the motion of that molecule? This is where the parallel to anti-terrorism efforts comes in. Mlodinow points out, “In any complex string of events in which each event unfolds with some element of uncertainty, there is a fundamental asymmetry between past and future.” He elaborates:

Now suppose we dig into [a] molecule’s past. Suppose, in fact, we trace the record of all its collisions. We will indeed discover how first this bump from a water molecule and then that one propelled the dye molecule on its zigzag path from here to there. In hindsight, in other words, we can clearly explain why the past of the dye molecule developed as it did. But the water contains many other water molecules that could have been the ones that interacted with the dye molecule. To predict the dye molecule’s path beforehand would have therefore required us to calculate the paths and mutual interactions of all those potentially important water molecules. That would have involved an almost unimaginable number of mathematical calculations, far greater in scope and difficulty than the list of collisions needed to understand the past. In other words, the movement of the dye molecule was virtually impossible to predict before the fact even though it was relatively easy to understand afterward.

Bingo. “Impossible to predict before the fact even though it was relatively easy to understand afterwards.” That pretty much sums up the problem with attempts to prevent terrorist attacks through suspicionless mass surveillance. Just as attempting to predict the path of the dye molecule would have involved “an almost unimaginable number of mathematical calculations,” so too would an attempt to predict a terrorist attack involve an almost unimaginable amount of surveillance and analysis of people’s everyday activities. Each water molecule that could even possibly collide with the dye molecule—and all the other molecules that could affect the paths of each of those molecules—would have to be traced in an endless receding tree of causation. Similarly, think of the endless, unpredictable tree of causation required to predict how, of all the angst and trouble faced by all the human beings among us, one will be somehow moved to engage in terrorist atrocities.

Sen. Lieberman in his written testimony told the House that

an attack like this had been predicted for years, which leads me to conclude that the success of these attacks was the result of errors made within our existing homeland security system—both public and private—and by a failure to do enough at the federal, state, and local levels to counter homegrown terrorism…

We can now see what is wrong with Lieberman’s logic. Even given certain knowledge of the statistical likelihood of an attack, it does not follow that failure to predict and stop it was the result of “errors” on the part of anybody.

I make this point not to defend the FBI or other agencies or argue that they did everything right. Rather, I am trying to combat the naïve view—on display both inside our security agencies and outside them—that we can stop terrorism or other crimes in proportion to how closely we watch everybody all the time. And I do so because there is a significant danger that, because it can seem so easy to see how the elements of a terrorist attack came together after the fact, people will think that it should be that easy to spot those elements in advance. The dots always connect in hindsight.

And to be clear, I’m not arguing that our security agencies shouldn’t chase down real evidence of wrongdoing and other genuine leads—shouldn’t work outward from known evidence using traditional investigative techniques. That works. What the Brownian motion metaphor speaks to is the approach to fighting terrorism that relies on trying to keep tabs on large numbers of people en masse, not based on individualized suspicion. If we pursue that approach, the outcome is predictable: many more incredulous senators, amazed that our security agencies failed to thwart attacks when all the signs seemed so “clear” in advance. And a continued slide towards an unrecognizable surveillance society.

Only a few short weeks ago, the so-called Senate Gang of Eight – four Republicans and four Democrats committed to producing a bipartisan immigration reform bill – released a bill exceeding 800 pages representing work dating back to November.  Last week, the Senate Judiciary Committee convened for the first day of mark-up – a process whereby all committee members have the chance to offer amendments to the bill before it proceeds to consideration by the full Senate.

This reform package is so important that the Committee has taken the very rare step of scheduling mark-up sessions to last for three full weeks.  That will be necessary to deal with the 300 amendments offered by Senators on the Committee.

On the first day, Senator Patrick Leahy (D-Vt.) called for all amendments impacting Title I of the bill, which focuses on border security issues.  In recent years, the Southwest border has been the focus of intense federal law enforcement build-up.  Staffing by Department of Homeland Security personnel has skyrocketed, and the Obama administration deported more individuals during its first term than in any other single presidential term – on the order of 400,000 individuals per year.  But the heavy militarization of our border hasn’t been enough and some on the right have insisted on further build-up as a price to pay for a fair road to citizenship for those aspiring Americans who have been living and working in this country for years. 

Thursday was the day for all manner of attempts to make the border security provisions of the bill even more onerous than they already are.  Never mind that conservatives and liberals alike agree that additional enforcement measures would be not merely wasteful, but abusive.  Even the Wall Street Journal took issue with the folly of throwing more money at the already over-policed border.   In truth, some of those attempts were really designed to gut the bill and stop it in its tracks.  Fortunately, those provisions largely failed.

The ACLU recommended votes for or against 23 different amendments.  We supported amendments that would curtail heightened law enforcement surveillance authority without judicial oversight extending fully 100 miles from the border, require humane conditions of confinement for children in the custody of the Border Patrol, and improve due process by providing additional resources to an overtaxed judicial system.  We opposed other amendments that would further the militarization of the border, make it harder for the citizenship program to take effect, or water down requirements to provide training to avoid use of excessive force.

At the end of Day One, the bill was altered, but not fundamentally so.  Highlights and lowlights?  Proponents of efficient and fair law enforcement were disappointed at the adoption of Senator Grassley’s (R-Iowa) amendment extending border security mandates to the entire Southwest border region and not limiting them to high-risk areas.  On the other hand, opponents of discriminatory practices were heartened at the adoption of an amendment offered by Senator Blumenthal that would bar federal funding of prosecutions arising out of unlawful law enforcement conduct, such as profiling.

The mark-up of this massive bill resumes Tuesday morning.  Next up?  Title IV of the bill, which deals with reforms to non-immigrant visa programs.

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This piece was originally posted on CNN.com.

The extraordinary revelation this week that the Internal Revenue Service targeted tea party groups for more aggressive enforcement highlights exactly why caution is needed in any response to the much-vilified Supreme Court decision in Citizens United v. FEC.

It also shows how all Americans, from the most liberal to the most conservative, should closely guard their First Amendment rights, and why giving the government too much power to limit political speech will inevitably result in selective enforcement against unpopular groups.

To the agency's credit, Lois Lerner, a senior official at the IRS, apologized on Friday for these unconstitutional practices, which are as unseemly as the Bush administration's targeting of the NAACP and the House of Representatives' defunding of Planned Parenthood on purely political grounds.

Lerner said that career IRS staff who were reviewing applicants for tax-exempt status took a harder look at applications with "tea party" or "patriot" in their names.

Read more on CNN.com >>

The Supreme Court of which state granted a stay of execution to Willie Manning, who may be innocent of the crime for which he was convicted?

True or false? Eye-tracking technology could pose a risk to privacy if inappropriately used to discover drug and alcohol use, mental and psychological illnesses, sexuality and other traits and behaviors.

Documents released this week suggest that which federal agencies read private emails without obtaining a warrant first?

Which federal agency has continued to increase its surveillance of Americans in the past year, according to the Department of Justice’s annual report?

A report by which organization shows the racial gap in U.S. wealth creation grew substantially during the Great Recession?

Willie Manning Is Scheduled To Die. Shouldn't Mississippi Find Out If He's Innocent First?

Willie Manning was granted this Tuesday a stay of execution by the State Supreme Court. Mississippi was steamrolling toward execution despite compelling evidence that Willie Manning may be an innocent man.

Manning's case has many of the hallmarks of those of other innocent death row exonerees: false snitch testimony, junk science, and racial bias. The prosecutors in Manning's case, like in all too many cases, stacked the deck by systematically removing African-American jurors from Manning's trial. Manning, an African-American man, was convicted of the murders of two white college students.

The Privacy-Invading Potential of Eye Tracking Technology

Eye-tracking technology received new attention recently due to its inclusion in the Samsung Galaxy IV phone, where it can (with mixed results, according to reviewers) let users scroll the screen with their eyes or dim the screen when they look away. Clearly this is a technology that has the potential for a lot of clever applications. But what are the privacy implications?

FBI Documents Suggest Feds Read Emails Without a Warrant

New documents from the FBI and U.S. Attorneys’ offices paint a troubling picture of the government’s email surveillance practices. Not only does the FBI claim it can read emails and other electronic communications without a warrant—even after a federal appeals court ruled that doing so violates the Fourth Amendment—but the documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content.

They’re Watching: FBI Business Records Requests Jump 900 Percent Compared to 2009

Last week served as yet another reminder of the threats posed to Americans' privacy by the post-Patriot Act surveillance state. According to the Department of Justice's annual report, FISA applications to the secretive Foreign Intelligence Surveillance Court (FISC) in 2012 revealed a continued increase in the FBI's surveillance of Americans. The report covers the Bureau's requests for electronic and physical surveillance, secret court orders under Section 215 of the Patriot Act, and National Security Letters (NSLs).

The Racial Wealth Accumulation Gap and Why ACLU is Suing Morgan Stanley for Racial Discrimination

This month, the Urban Institute joined an emerging consensus of researchers and social scientists with a new report revealing, in the starkest terms, our nation's vast and widening racial gap in wealth creation. With this report, Less than Equal: Racial Disparities in Wealth Accumulation, the Urban Institute joins a growing body of research showing that in America today, wealth is not colorblind and that during the recession this gap has widened.

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Today, the U.S. has the highest incarceration rate of any country in the world. With over 2.3 million men and women living behind bars, our imprisonment rate is the highest it’s ever been in U.S. history. And yet, our criminal justice system has failed on every count: public safety, fairness and cost-effectiveness. Across the country, the criminal justice reform conversation is heating up. Each week, we feature some of the most exciting and relevant news in overincarceration discourse that we’ve spotted from the previous week. Check back weekly for our top picks.

Previous posts have surveyed the many reform bills in play across the country. This week, we’ll take a more detailed look at a recently enacted reform bill, Indiana’s HB 1006. The massive new law, which was signed by Gov. Pence this week, makes a long list of changes to the state’s criminal code. Some of those many changes will mean fewer prisoners; some will have the opposite effect. Altogether, though, the state thinks the bill will mean slightly fewer prisoners over the next 5-6 years.

The most significant aspect of the bill is the new set of felony classifications. The bill replaces Indiana’s four felony tiers with six, which in practice should lower the sentence lengths for the majority of felony defendants. An analysis of the bill applied the new felony tiers to felony convictions from 2008-2012; over 80% of defendants would have faced a lower minimum sentence, a lower maximum sentence, or both if the six-tier system had been in place. Hundreds would have been convicted of a misdemeanor instead of a felony.

A big win for common sense in the bill is the establishment of a felony threshold for theft. Currently, Indiana is the only state for which theft is a felony no matter how small the stolen item’s value. That will change on July 1 of next year, when the felony threshold gets set at $750. If this law had been in place in 2009, 650 people wouldn’t have gone to prison for petty theft. In the meantime, however, it will still be possible to be charged with a felony for stealing a pack of Oreos or sneaking into a movie in Indiana. (Also, note that the $750 line is modest; in tough-on-crime Texas, theft of property valued at less than $1,500 is a misdemeanor).

Also in the bill are a number of changes to drug-offense sentencing. Possession of most substances will be a misdemeanor, and sentences for most sale or manufacture offenses will be reduced. The area near schools within which drug offenses carry longer sentences is reduced from 1,000 feet to 500 feet, and such enhancements will only apply while a person under 18 years of age was reasonably expected to be present.

On the other hand, prisoners will be able to earn less time off their sentences through good behavior or participation in programs that tend to reduce recidivism. The bill also increases sentence lengths for more serious offenses. These provisions will mitigate the bill’s downward pressure on the state’s prison population.

Indiana’s prison population has grown fairly aggressively over the last decade, up more than 20% over a period when some states have actually begun to shed prisoners and close prisons. HB 1006 should be a step in the right direction: backward.

Here are some other interesting items from the past week:

• Colorado’s legislature passed a ton of smart criminal justice bills as its session closed, including SB 250, which makes broad reforms to the state’s drug laws. Check out the Colorado Coalition for Criminal Justice Reform’s legislative wrap-up to learn more.
• The House of Representatives announced the creation of the Over-Criminalization Task Force of 2013. Mike Riggs at Reason hopes that the bipartisan group will tackle drug law reform. More on the group here.
• Last week, the California Senate passed a bill that would allow prosecutors to charge the simple possession of any controlled substance as a misdemeanor.
• You can review recent activity in state legislatures to reduce prison populations, with contextual information about each state, on our new map.

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Earlier this year, I wrote about being pushed out of my job because I was pregnant. It’s still hard for me to believe that I was put in the position of choosing between staying on the job while pregnant, and the health of my baby.

I have a good job at United Parcel Service (UPS) and had worked there for almost 10 years. I am a full time driver, and that work can be very demanding and strenuous. I often work up to 14 hours a day, and during the rush seasons, like Mother’s Day, the size and weight of the packages explodes. Despite that, I like my job and am glad to be able to support myself and my family.

But all of that changed when I became pregnant. When I learned about my pregnancy, I informed my supervisors. Because I was worried about the health of my pregnancy, I asked them, on numerous occasions, for a temporary light duty position. UPS told me that none were available. I was shocked because I know that UPS had offered temporary work assignments to several other people. In fact, when I was injured in the past, UPS allowed me to do light duty assignments like washing windows and administrative work.

I simply couldn’t understand why UPS wouldn’t make the same accommodation when the health of my baby was at stake. Instead, I was forced to leave work altogether for the duration of my pregnancy, even though I was willing and able to keep working.

Julie Mayer and her daughter.

This is wrong and unfair. UPS shouldn’t have made me choose between my salary and benefits and the health of my pregnancy, especially when they have the ability to provide me and other mothers-to-be with a temporary accommodation.

There are laws, like the Pregnancy Discrimination Act, which prohibit sex discrimination on the basis of pregnancy but some companies like UPS are ignoring the law. And that’s why we need the Pregnant Workers’ Fairness Act (PWFA).

I’m glad to hear that the PWFA is being introduced in Congress next week and I hope every member of Congress will support it. This bill would allow women continue to do their jobs and support their families by requiring employers to make the same reasonable accommodations for pregnancy as they do when a worker is injured. It will make it crystal clear to employers that they can’t push women out of the workforce when they are pregnant.

A woman should never have to choose between earning a living and a safe, healthy pregnancy. Every member of Congress should co-sponsor the Pregnant Workers Fairness Act. Will yours?

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The FBI doesn't think it needs a warrant to read emails and other electronic communications – despite the fact that a federal court has ruled that doing so violates the Fourth Amendment. Ben Wizner appeared today on Democracy Now! to discuss this and other ACLU revelations regarding government surveillances practices.

The ACLU this week released documents that paint a disturbing picture of the authority the government claims to access a wide range of our communications – from emails to Facebook messages and much more. These latest developments reinforce what has long been clear: it is well past time to modernize ECPA, the egregiously outdated law that governs our electronic privacy but hasn't been updated since 1986, before the World Wide Web was even invented. As Wizner said:

There's no reason why your emails should have different constitutional protections than a letter that you write. People expect when they send an email to someone that it is private, that it shouldn't be treated as some kind of business record that the government can obtain without good reason.

Wizner also discussed FBI plans to vastly increase its online surveillance capabilities by requiring that companies build in to their systems the capacity to comply with wiretap orders. Beyond the fact that "our government wasn't created to make sure that law enforcement can spy on every single communication," the cybersecurity implications of such a plan are enormous (and quite terrifying). Watch the video in full to learn more:

Privacy statement. This embed will serve content from youtube.com.

The FBI isn't alone – the ACLU recently revealed the IRS also claims the authority to read your emails without a warrant. Read more about that here, and join our call to Congress to update ECPA.

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After fifteen years on Louisiana's death row, Damon Thibodeaux was exonerated, the courts finally recognizing his innocence. He has moved to Minneapolis and is getting on with his life.

Watch the video here.

Damon's birthday and mine are two days apart, and for many years we would "celebrate" together while he was on death row. When I visit him this summer in Minneapolis to carry on our tradition, I expect we will have a MUCH better party.

For more on Damon Thibodeaux, click here. Since 1973, over 140 people have been released from death rows in 26 states because there were found to be innocent. The death penalty in the U.S. is applied largely based on how much money defendants have, the skill of their attorneys, the race of the victim, and where the crime took place. It's time to end this irreparably broken system.

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A few years ago, one of our ACLU state affiliates received a request for help from a man who had set up a marijuana grow operation in his home. He was apparently quite proud of what he built, because he bragged about it not only to his friends, but also to his Facebook “Friends.” Unfortunately, one of his Friends was Friends with a police officer a thousand miles away in Florida. That police officer called up his colleagues in the man’s home town, and they raided his house.

It’s easy to write this guy off as stupid, and perhaps that’s true. But I think that it’s a textbook illustration of a point I’ve made a couple times before: the fact that social networks confuse our privacy intuitions.

The best breakdown of why this is so that I have seen is this 2010 slideshow by a Google user-experience expert named Paul Adams. Adams takes a prototypical user, “Debbie,” and traces how both her offline friends and her online Friends are drawn from different contexts in her life—from Los Angeles where she used to live, from San Diego where she lives now, from her family, and from her work training 10-year-old kids as a swim coach. Here is a slide Adams uses to visualize that:

The problem comes when some of Debbie’s LA friends post pictures of their wild times at a gay bar, and Debbie comments on them—not realizing that this will make the photos visible to all her 10-year-old Friends from a different part of her life.

Adams’s analysis seems to have been reflected in the design of Google+, the “circles”-based architecture that I think matches our privacy intuitions much more than Facebook’s. (Facebook has retrofitted its network with the ability to create different groups—the equivalent of Google+ circles—but it has the feel of an add-on feature rather than core design, and my anecdotal sense is that few people make much use of it.)

What the story of “Debbie” illustrates is that social media can short-circuit the human skill at presenting different versions of ourselves in different situations—the ability to wear different “social masks.” There’s nothing phony about that—it’s a natural and normal part of what it means to be human. In an essay just last month in the New York Times Book Review, the writer Pico Iyer talks about how great writers are able to write in different voices, drawing different aspects of their complex inner selves into each “role.”

To some extent this is true of all of us. Look at your out-box: in the past hour you may have sent e-mails to mother, partner, boss and child, possibly even describing the same party. But each one is likely to have been written in a very different voice, and even to have treated the event quite differently—not to do so would be a form of insensitivity. “A man has as many social selves as there are individuals who recognize him,” as William James had it. It’s the man who doesn’t change his voice according to his audience who seems scary, locked inside his own assumptions.

This is a writer-focused way of expressing the same idea. When those delicate wires are crossed and we present the wrong self to one of our audiences—whether through our own mistakes or through invasions of our privacy—it can quickly become a source of humiliation. Even the most delicate difference in shades of meaning, presented to the wrong audience, can mean disaster.

But the problem is bigger than the fact that Facebook’s architecture encourages people to lump all their Friends together into one big group. What’s also at work here, I suspect, is the nature of online communication itself.

I think there’s a kind of bug in the human software that the digital age has brought to the surface. We are animals that are deeply programmed to adjust our behavior according to who is physically present. If we’re in a room with 40 people, and we’re only interacting with five of those people, we never forget the larger audience of lurkers in that conversation, and adjust our words to match. But if we’re in an electronic forum where 40 people are listening, and we’re only interacting with five of them, we are prone to forget about the other 35 people and come to feel that the five are our sole audience. When we have 1,000 Facebook Friends, which is not that uncommon, that dynamic is magnified. A thousand people is truly just a statistic, and all of the differences in how you would normally present yourself to all the sub-groups among those Friends fall by the wayside as specific people grab all your attention.

I’ve felt this personally, and I’ve seen it in action with colleagues, friends, and Friends. Most people, when they get on a stage in front of several hundred people or more, act in a very formal and circumspect way. That would probably be true even if the audience were entirely made up of various levels of friends, relatives and acquaintances. But on Facebook, many people say things to that large audience that they would never say in an auditorium.

And the same gaps in our intuition that make us prone to losing track of who our audience is, make us prone to forget that unlike in spoken conversation, virtually everything you say online generates a permanent written record—and one that is accessible not only by your Friends, but also by giant, international, advertising-based companies.

And that all holds true even for the minority of people who are on top of their privacy settings. It doesn’t even get to the fact that many people don’t understand the precise settings and defaults for who can see what of your online presence, and may not realize that what they say isn’t even limited to their Friends, but can be viewed by their Friends’ Friends, or even by the whole world if they really don’t have their privacy settings in line.

Perhaps somebody should create an app that takes the photographs of all your Facebook friends and assembles them together in a collage that you can print out and tape up next to your monitor while you share your exuberant opinions with your thousand Friends. That might close the gap between the reality of our online social interactions, and the way those interactions often feel to us.

Today, a federal district judge in Arizona issued a very disappointing decision concerning the government’s obligations to be candid with courts about new technologies they are seeking a warrant to use.

The case involves Daniel Rigmaiden, who is being criminally prosecuted for an alleged electronic tax fraud scheme. The government used a surveillance device known as a stingray to locate Mr. Rigmaiden. A stingray operates by simulating a cell tower and tricking all wireless devices on the same network in the immediate vicinity to communicate with it, as though it were the carrier’s cell tower. In order to locate a suspect, a stingray scoops up information not only of the suspect, but all third parties on the same network in the area. This means that when the government uses a stingray to conduct a search, it is searching not only the suspect, but also tens or hundreds of third parties who have nothing to do with the matter. When the FBI sought court permission to use the device to locate Mr. Rigmaiden, it didn’t explain the full reach of stingrays to the court.

The ACLU and the Electronic Frontier Foundation filed an amicus brief arguing that when the government wants to use invasive surveillance technology, it has an obligation to explain to the court basic information about the technology, such as its impact on innocent third parties. This is necessary to ensure that courts can perform their constitutional function of ensuring that the search does not violate the Fourth Amendment. Unfortunately, today’s decision trivializes the intrusive nature of electronic searches and potentially opens the door to troubling government misuse of new technology.

In today’s decision denying the motion to suppress, the judge held that information about how the stingray operates – such as the fact that it scoops up third party data – was merely a “detail of execution which need not be specified.” We respectfully but strongly disagree.

If the government has probable cause to believe a suspect lives at a particular address and wants a search warrant, it obviously needs to tell the court if the address is a 100-unit apartment building and that the government intends to search all 100 units until it finds the suspect. Omitting such information would never be considered a “detail of execution.” Law enforcement should be held to the same standard when they conduct electronic surveillance.

The judge dismissed the significance of the stingray’s impact on third parties because the government deleted and did not review the third-party data after it located Mr. Rigmaiden. But the Fourth Amendment does not include a “no harm, no foul” rule. The violation arises from the fact that the government searched people who are not suspected of any wrongdoing. This is a violation even if the government doesn’t later use the information against those third parties.

Finally, the judge held that, under the “good faith” doctrine, suppression would not be the appropriate remedy even if there were a constitutional violation. The judge agreed with the government that the FBI agents “were using a relatively new technology, and they faced a lack of legal precedent.” Today’s ruling missed the opportunity to create an important legal precedent on electronic surveillance.

As new surveillance technology emerges, the government needs to err on the side of providing more, not less, information to magistrates. Technology evolves more rapidly than the law. Today’s decision sends the troubling message to the government that it’s alright to withhold information from courts about new technology, which means that the law will have an even harder time catching up.

(Crossposted on the ACLU of Northern California's blog)

New documents from the FBI and U.S. Attorneys’ offices paint a troubling picture of the government’s email surveillance practices. Not only does the FBI claim it can read emails and other electronic communications without a warrant—even after a federal appeals court ruled that doing so violates the Fourth Amendment—but the documents strongly suggest that different U.S. Attorneys’ offices around the country are applying conflicting standards to access communications content (you can see the documents here).

Last month, in response to a Freedom of Information Act request, the ACLU received IRS documents indicating that the agency’s criminal investigative arm doesn’t always get a warrant to read Americans’ emails. Today we are releasing these additional documents from other federal law enforcement agencies, reinforcing the urgent need for Congress to protect our privacy by updating the laws that cover electronic communications.

The FBI and Electronic Communications: Where’s the Warrant?

The documents we received from the FBI don’t flat out tell us whether FBI agents always get warrants, but they strongly suggest that they don’t.

In 2010, the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement. But that decision only applies in the four states covered by the Sixth Circuit, so we filed our FOIA request to find out whether the FBI and other agencies are taking advantage of a loophole in the outdated Electronic Communications Privacy Act (ECPA) that allows access to some electronic communications without a warrant. Distressingly, the FBI appears to think the Fourth Amendment’s warrant requirement doesn’t always apply.

The FBI provided the ACLU with excerpts from two versions of its Domestic Investigations and Operations Guide (DIOG), from 2008 and 2012. One of the Guides is from before Warshak was decided and the other one is from after, but they say the same thing: FBI agents only need a warrant for emails or other electronic communications that are unopened and less than 180 days old. The 2012 Guide contains no mention of Warshak, and no suggestion that the Fourth Amendment might require a warrant for all emails. In fact, the 2012 Guide states:

In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers. . . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment.

Versions of the Guide from 2008 and 2011 are available on the FBI website, but the 2012 edition has not previously been made public. We would have thought that by 2012, the FBI would have updated its policy to require a warrant for all private electronic communications. Our FOIA request was the FBI’s chance to produce any policy documents, manuals, or other guidance stating that a warrant is always required, but they failed to do so. Instead, the documents we received strongly suggest that the FBI doesn’t always get a warrant.

In fact, confirmation that the FBI is reading some emails without a warrant can be found in a recent opinion issued by a federal magistrate judge in Texas. Most of the opinion concerns whether the FBI is allowed to surreptitiously infect a computer with spyware (the judge refused to grant the FBI a warrant to do so). But tucked inside the opinion is this revelation: “the Government also sought and obtained an order under 18 U.S.C. § 2703 directing the Internet service provider to turn over all records related to the counterfeit email account, including the contents of stored communications.” Amazingly, as recently as March of this year, the FBI went after emails without a warrant. This is an affront to the Fourth Amendment.

A Patchwork of Policies

In addition to the FBI documents, the ACLU also received records from six U.S. Attorneys’ offices (in California, Florida, Illinois, Michigan, and New York), and from the Justice Department’s Criminal Division, which provides legal advice to federal prosecutors and law enforcement agencies. The Criminal Division withheld far more documents than it released. The U.S. Attorneys’ office documents reveal some information, but paint a confusing picture of federal policy. We received two paragraphs from the U.S. Attorney for the Southern District of New York—part of an unidentified document stating that law enforcement can obtain “opened electronic communications or extremely old unopened email” without a warrant. Perplexingly, the agency has not released the cover page or other contextual information from this document, so we don’t know whether it reflects the current policy of that office.

Excerpts from an October 2012 document released by the U.S. Attorney for the Northern District of Illinois show that at least one part of the government understands that the Fourth Amendment protects private electronic communications. The document, a chart titled “Procedures for Obtaining Certain Forms of Electronic Surveillance and Related Evidence,” contains entries setting out the procedures for obtaining text messages, voicemails, and emails stored by internet service providers, as well as stored communications on Facebook and “private tweets” on Twitter. The document says a warrant is required for each of these forms of communication. It even explains that “The Sixth Circuit in Warshak held that the non-warrant methods of obtaining stored emails to be [sic] unconstitutional.” Again, because the document lacks a cover page or other explanatory information we don’t know whether it constitutes binding policy for prosecutors or how broadly it applies. This lack of context is frustrating, but at least the document gets the law right.

The six U.S. Attorneys’ offices also told us in this email that since Warshak, they have not authorized a request to a court for access to the contents of electronic communications without a warrant. But according to the recent Texas magistrate judge’s opinion, one U.S. Attorney’s office apparently authorized such a request this year. Even with today’s documents, the government’s actual position is far from clear.

Time for Reform

If nothing else, these records show that federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email. It has been clear since 1877 that the government needs a warrant to read letters sent via postal mail. The government should formally amend its policies to require law enforcement agents to obtain warrants when seeking the contents of all emails too.

More importantly, Congress also needs to reform ECPA to make clear that a warrant is required for access to all electronic communications. Reform legislation is making its way through the Senate now, and the documents released by the U.S. Attorney in Illinois illustrate that the law can be fixed without harming law enforcement goals. If you agree that your email and other electronic communications should be private, you can urge Congress to take action here.

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CONTACT: 212-549-2666, media@aclu.org

DOVER, Del. – Delaware Gov. Jack Markell signed a law legalizing marriage for same-sex couples today. Markell signed the bill shortly after its passage by the state legislature.

Delaware is now the 11th state, in addition to the District of Columbia, to recognize marriage for same-sex couples. It joins Massachusetts, Vermont, New Hampshire, Connecticut, Maine, Maryland, Washington, New York, Iowa, and as of last week, Rhode Island.

"Today marks a historic day for Delawareans who have shown their support and commitment to fairness and equality," said Kathleen McRae, executive director of the American Civil Liberties Union of Delaware. "We are proud to have worked with so many dedicated partners to reach this moment."

"The fight to achieve the freedom to marry for loving and committed couples across the country took another proud step forward today in Delaware," said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project. "It is incredibly gratifying to see years of hard work paying off as more Americans embrace the idea that all families deserve the recognition and protection that only comes with marriage."

When former White House counterterrorism advisor John Brennan went before the Senate in early February for his confirmation hearing to lead the CIA, he made a startling admission. After reading the 300-page summary of the Senate Select Committee on Intelligence's (SSCI) mammoth 6,000-page report on the CIA's post-9/11 detention and interrogation program, Brennan's belief in the life-saving value of the torture program was shaken.

Responding to a question from Sen. Saxby Chambliss (R-Ga.) about whether the program "saved lives," Brennan replied:

I clearly had the impression, as you say, when I was quoted in 2007 that there was valuable intelligence that came out of those interrogation sessions. That's why I did say that they save lives. I must tell you, Senator, that reading this report from the committee raises questions about the information that I was given at the time, the impression I had at the time.

This power to change minds, particularly those close to the program, is one of the primary reasons why the committee's report deserves to be read by anyone interested in America's resort to kidnapping and torture after 9/11. The report, however, is currently still classified as the committee awaits the CIA's review.

Yesterday, the ACLU along with seven other human rights organizations sent President Obama a letter urging him to ensure that the CIA's review of it isn't the only response from the executive branch that the committee receives. To ensure that doesn't happen, the coalition urges the president to designate a senior White House official to coordinate one executive branch response to the committee's report, which incorporates the views of all its relevant agencies. The SSCI deserves a big-picture view of the torture program, and the White House should provide a response that doesn't give undue deference to the program's creator and defender.

It's important to remember that the CIA doesn't hold the only worthwhile opinion on the United States' descent into the dark side. As our letter reminds the president:

Other agencies—including the FBI, the Department of Defense, the Department of State, and the Office of the Director of National Intelligence—also have relevant knowledge of the CIA program and its effects, as does the White House itself.

During those immoral years, many courageous government officials and employees objected to the torture program on both moral and strategic grounds, particularly its power to stoke anti-American hatred and provide terrorist recruiters with a compelling justification for their own atrocities.

Nevertheless, the torture program has its stalwart defenders, including former senior officials, who continue to peddle the false narrative that these unlawful practices were necessary to save lives and protect the United States from further terrorist attacks.

The only way to effectively combat these lies and inaccuracies is for the report to be made public. Otherwise, it's nearly impossible to correct the record, as SSCI member Sen. Mark Udall (D-Colo.) made plain at Brennan's confirmation hearing.

[I]naccurate information on the...effectiveness of the CIA's detention-interrogation program was provided by the CIA to the White House, the DOJ, Congress and the public. Some of this information is regularly and publicly repeated today by former CIA officials. And although we now know this information is incorrect, the accurate information remains classified, while inaccurate information has been declassified and regularly repeated.

The American people deserve to know what was done in their name. More importantly, they deserve to know that falling far short of our ideals didn't protect national security—it harmed it. American ideals are too often described as an impediment to our security, when in reality our adherence to our values provides for our long-term security.

But our nation won't understand how wrong the torture apologists are until the committee's vital report is available for everyone to read. Only a public reckoning with our post-9/11 past can ensure the United States never takes another ride into the abyss again.

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One of the things in play in the current wrangling over immigration reform is whether we will see the E-Verify work authorization program expanded nationwide and made mandatory. We’ve just put out a white paper summarizing “The 10 big Problems With E-Verify.”

Overall, E-Verify represents a move toward the creation of a “Mother may I” or “permission society” in the United States. In an attempt to stop the tiny percentage of those starting jobs in the United States each year who are unauthorized workers, E-Verify would force everyone to obtain affirmative permission from government bureaucracies before engaging in the core life functions of working and earning a living. That not only inverts the relationship between the individual and government, but will lead to a number of other serious problems, which we set forth in the paper.

Like many women, police officer Annie Balcastro of Wallingford, CT faced an uncertain future when she had to request a light-duty accommodation during her pregnancy. Many pregnant workers whose jobs entail physical activity are pushed out of the workforce when pregnant, even though their employers have provisions in place for other workers who are temporarily unable to do all aspects of their jobs, such as injured workers. Currently, fewer than ten states require employers to provide reasonable accommodations to pregnant employees who want to remain on the job but are unable to perform some aspect of their job during pregnancy.

Fortunately for Annie Balcastro, Connecticut is one of the states whose laws specifically protect the rights of pregnant workers to stay on the job. The state law deems it discrimination for an employer to fail to make a reasonable effort to provide a transfer to any suitable temporary position for a pregnant employee who needs an accommodation. In 2012, Annie Balcastro filed a complaint against the Wallingford Police Department claiming that the Department refused to give her a light-duty assignment or transfer her to a suitable temporary position, instead forcing her to take unpaid leave during her pregnancy. The charge alleged that while police officers could take paid leave for on-duty injuries, pregnant officers had to work full duty or go onto unpaid leave. Last Friday, the American Civil Liberties Union, the ACLU of Connecticut, and the law firm of Outten and Golden LLP, reached a settlement on Annie's behalf with the Department.

A number of other states, including California and Michigan, have similar statutory provisions forbidding employers from pushing pregnant women out of the workplace when they need minor accommodations. Maryland passed a similar protection this year, which will be signed by the governor this month, and New York and other states are trying to pass similar legislation. We encourage workers in these states to make their voices heard, and to enact protections that will protect workers – as Connecticut workers are protected – from having to choose between working and starting a family.

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