Fifty years ago this week, President Kennedy signed the Equal Pay Act in the East Room while surrounded by leaders of the women's rights movement. And on Monday, President Obama celebrated its 50th anniversary with a ceremony in the East Room, and we were lucky enough to be invited.
In front of a crowd filled with everyone from women's rights advocates to celebrities to Attorney General Eric Holder, President Obama gave an impassioned speech about how far we've come and how far we have to go on equal pay:
Just last week, a report confirmed what we already know: that women are increasingly the breadwinners for American families. Women are now the primary source of income for nearly 40 percent of American families… That's not something to panic about, or to be afraid about -– that's a sign of the progress and the strides that we've made. But what it does mean is that when more women are bringing home the bacon, they shouldn't just be getting a little bit of bacon.
While the bacon line got a good laugh from the crowd, the President raises an interesting point. Regardless of whether 40% or 4% of breadwinners are women, no woman should make less than she earns because of her gender, but the wage gap is even more ridiculous in today's world of Marissa Mayers and Sheryl Sandbergs.
Fortunately we can fix it. The President got one of the biggest cheers of the day when he mentioned the solution that's currently sitting in Congress:
As long as this gap persists, we're going to have more work to do. And now is the time to keep up the work that all those trailblazers started 50 years ago. Now is the time for Congress to step up and pass the Paycheck Fairness Act so women have better tools to fight for equal pay for equal work.
Despite the persistent wage gap, Monday's ceremony was a celebration of one of the landmark laws of the last century and, as the President put it, "the heroes who made that law possible." The men and women in the audience were fired up about the chance we have to right this historic wrong, and I'm confident that passion will continue for the next 50 years as we end the wage gap and make sure everyone brings home the bacon they've earned.
Now, if you excuse me, all of this talk about bacon has me pretty hungry…
Want to do something about the wage gap? Ask Congress to pass the Paycheck Fairness Act.
In the wake of revelations that the Obama administration is tracking virtually every single phone call of every single American, the administration has trotted out an unsurprising defense: we're not listening to your phone calls, just snatching the metadata!
What is metadata? My colleagues Ben Wizner and Jay Stanley explained it well in this op-ed.
But don't take our word on how sensitive metadata is. Here's then–Senator Joe Biden, in a clip featured on The Daily Show Monday night, criticizing a similar call record-collection program revealed in 2006 under the Bush administration, and explaining how studying your call habits can be "very, very intrusive":
Privacy statement. This embed will serve content from mtvnservices.com.
How intrusive is it for the government to collect all of your metadata, for years at a time? Just like Biden says, it's incredibly intrusive. Often the government can learn just as much about you by analyzing whom you're calling, when, and from where, as by actually listening in. As Ben and Jay explained in their op-ed: "If a politician were revealed to have repeatedly called a phone sex hotline after 2:00 a.m., no one would need to know what was said on the call before drawing conclusions."
Click here for more updates and analysis on the NSA surveillance program.
I’d like to make one major point about the NSA surveillance scandal that many people have made indirectly, or implicitly, or seem to have assumed, but have not stated baldly and explicitly. That point is how this incident has laid bare the arrogance of our national security officials.
Because there are really two separate issues behind last week’s revelations. The first is, how much surveillance of the American people should the government conduct? The second is, who should decide how much surveillance of the American people the government should conduct?
And on that second question, the government has arrogated to itself the power to make that decision, unilaterally, in secret, on behalf of the American people.
In his only comments on this scandal, President Obama said,
I think it's important for everybody to understand—and I think the American people understand—that there are some tradeoffs involved. … But I think it's important to recognize that you can't have 100 percent security and also then have 100 percent privacy and zero inconvenience. We're going to have to make some choices as a society.
Apparently by “we” in that last sentence, the president meant “my national security team,” not “we the American people.” Because they had already made those choices when we found out about all this.
Director of National Intelligence James Clapper insists that “discussing programs like this publicly will have an impact on the behavior of our adversaries.” But public discussion of this kind of program is what it means to live in an open democratic society. So national security officials have decided that the increased threat of terrorism that would come from upholding the democratic process is so great that it is worth sacrificing that democratic process? First of all, count me skeptical. Second, after all this country has sacrificed in its history to defend democracy, who are these officials to make the judgment that we ought to sacrifice some of that democracy?
There was certainly no broad awareness that the NSA was engaged in dragnet surveillance of Americans’ communications, either outside of Congress or within it. Indeed, the activities went far beyond what most people understood the Patriot Act to authorize. As my colleague Patrick Toomey pointed out Monday, the government won’t even be transparent about how it is interpreting the authorities Congress supposedly gave it. For example, Section 215 of the Patriot Act allows the government to compel production of records relevant to foreign intelligence or terrorism investigations. But how could all phone records possibly be relevant to such investigations? Far from deferring to democratic discussion about the Patriot Act’s powers, the government has aggressively pushed those powers to their limits and beyond, and refused to share its deliberations or interpretations with the public.
At the ACLU we feel strongly that mass surveillance is not worth the trade-offs involved, being of questionable effectiveness while violating our core privacy traditions. But even someone who disagreed with us on that matter should agree that whether or not to permit this kind of mass surveillance is a core values judgment of our civilization—a decision that goes directly to the heart of what kind of country we want to live in. That is a decision that should be made by all of us democratically after full and open debate, and is not one that executive branch officials have any business deciding on their own in secret. Yet these officials decided to substitute their own judgment for the judgment of the American people. And it’s not as if they are neutral parties in the decisions they made, which just happen to give them more power.
In the wake of the past week's revelations about the NSA's unprecedented mass surveillance of phone calls, today the ACLU filed a lawsuit charging that the program violates Americans' constitutional rights of free speech, association, and privacy.
This lawsuit comes a day after we submitted a motion to the Foreign Intelligence Surveillance Court (FISC) seeking the release of secret court opinions on the Patriot Act's Section 215, which has been interpreted to authorize this warrantless and suspicionless collection of phone records.
Last week, The Guardian released an order issued by the FISC that compelled a Verizon subsidiary—Verizon Business Network Services (VBNS)—to hand over, on an "ongoing, daily basis," details for every phone call placed on its network for a prospective three-month period. Collecting those details—"metadata" that reveals who people talk to, for how long, how often, and possibly from where—allows the government to paint an alarmingly detailed picture of Americans' private lives. The FISC order cited Section 215 as its legal basis, yet the breadth of the authority it granted to the government is simply incompatible with the text of the statute.
As an organization that advocates for and litigates to defend the civil liberties of society's most vulnerable, the staff at the ACLU naturally use the phone—a lot—to talk about sensitive and confidential topics with clients, legislators, whistleblowers, and ACLU members. And since the ACLU is a VBNS customer, we were immediately confronted with the harmful impact that such broad surveillance would have on our legal and advocacy work. So we're acting quickly to get into court to challenge the government's abuse of Section 215.
The ACLU's complaint filed today explains that the dragnet surveillance the government is carrying out under Section 215 infringes upon the ACLU's First Amendment rights, including the twin liberties of free expression and free association. The nature of the ACLU's work—in areas like access to reproductive services, racial discrimination, the rights of immigrants, national security, and more—means that many of the people who call the ACLU wish to keep their contact with the organization confidential. Yet if the government is collecting a vast trove of ACLU phone records—and it has reportedly been doing so for as long as seven years—many people may reasonably think twice before communicating with us.
The kind of personal-data aggregation accomplished through Section 215 also constitutes an unreasonable search and seizure under the Fourth Amendment. Last year, in a case on GPS tracking by police, five members of the Supreme Court indicated support for the common-sense notion that government collection of individual bits of seemingly innocuous personal information over a long period of time could amount to such a complete invasion of privacy that it would be unconstitutional. The surveillance program that came to light with the release of the FISC order constitutes precisely that kind of unreasonable incursion into Americans' private lives.
Finally, the ACLU's complaint charges that the executive branch's use of Section 215 violates the plain language of the statute itself. The statute requires that records seized under its authority be "relevant" to an authorized foreign-intelligence or terrorism investigation. But while that language imposes a real limitation on when the government can use Section 215, the FISC order covering all VBNS customers demonstrates that this "relevance" restraint is shockingly inadequate. Similarly, the FISC order shows that the government—with the FISC's secret approval—is acquiring future records of telephone subscribers based on the same "relevance" requirement, even though the statute uses words that clearly show it was only meant to cover "tangible things" already in existence.
With today's lawsuit, the ACLU is now attacking Section 215 on three legal fronts: in our ongoing FOIA litigation seeking the government's secret interpretation of the law; in the FISA Court through yesterday's public-access motion; and now, in a constitutional lawsuit in federal court. When the government is claiming such chillingly expansive surveillance powers, it's all hands on deck. Stay tuned.
The ACLU, a Verizon Customer, Says Government Data Collection Violates Its First and Fourth Amendment Rights
June 11, 2013
FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, firstname.lastname@example.org
NEW YORK – The American Civil Liberties Union and the New York Civil Liberties Union today filed a constitutional challenge to a surveillance program under which the National Security Agency vacuums up information about every phone call placed within, from, or to the United States. The lawsuit argues that the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act.
"This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens," said Jameel Jaffer, ACLU deputy legal director. "It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy."
The ACLU is a customer of Verizon Business Network Services, which was the recipient of a secret FISA Court order published by The Guardian last week. The order required the company to "turn over on 'an ongoing daily basis' phone call details" such as who calls are placed to and from, and when those calls are made. The lawsuit argues that the government's blanket seizure of and ability to search the ACLU's phone records compromises sensitive information about its work, undermining the organization's ability to engage in legitimate communications with clients, journalists, advocacy partners, and others.
"The crux of the government's justification for the program is the chilling logic that it can collect everyone's data now and ask questions later," said Alex Abdo, a staff attorney for the ACLU's National Security Project. "The Constitution does not permit the suspicionless surveillance of every person in the country."
The ACLU's 2008 lawsuit challenging the constitutionality of the FISA Amendments Act, which authorized the so-called "warrantless wiretapping program," was dismissed 5–4 by the Supreme Court in February on the grounds that the plaintiffs could not prove that they had been monitored. ACLU attorneys working on today's complaint said they do not expect the issue of standing to be a problem in this case because of the FISA Court order revealed last week.
Yesterday, the ACLU and Yale Law School's Media Freedom and Information Access Clinic filed a motion with the FISA Court, requesting that it to publish its opinions on the meaning, scope, and constitutionality of Patriot Act Section 215. The ACLU is also currently litigating a Freedom of Information Act lawsuit, filed in October 2011, demanding that the Justice Department release information about the government's use and interpretation of Section 215.
"There needs to be a bright line on where intelligence gathering stops," said NYCLU executive director Donna Lieberman. "If we don't say this is too far, when is too far?"
Attorneys on the case are Jaffer and Abdo along with Brett Max Kaufman and Patrick Toomey of the ACLU, and Arthur N. Eisenberg and Christopher T. Dunn of the NYCLU.
An interactive graphic examining the secret FISA Court order revealed last week is available here.
Today's complaint is at:
The House Armed Services Committee just voted to approve HR 1960, otherwise known as the National Defense Authorization Act for Fiscal Year 2014. Among the myriad national security issues that compete for attention in this bill is the prison at Guantánamo Bay, which Congressman Adam Smith (D-WA) has repeatedly characterized as an "international eyesore." It is, of course, also a human rights disaster.
In Guantánamo, 104 men are on hunger strike to protest their indefinite detention. Forty-one are being force-fed through tubes, and four have been hospitalized. As President Obama himself said recently in a speech at the National Defense University, this is a prison that should never have been opened.
Yet while this moral and rights crisis continues to heat up, it may well be the fiscal crisis that boils over. According to Congressman Smith, who offered an amendment to lift the ban on transfers of detainees to the United States for detention and trial, it costs American taxpayers a whopping $1.6 million per detainee at Guantánamo - nearly 50 times the cost of holding inmates in federal Bureau of Prisons facilities.
Unfortunately, Congress didn't get it. The amendment was rejected by a vote of 23-38, which means that unless the President begins the process of transferring detainees out of Guantánamo and the prison is closed, Americans will ultimately have to foot the bill to maintain Guantánamo into the foreseeable future. This will require the construction of permanent facilities on the island. According to funds appropriated in the proposed bill, that will cost an additional $61 million beyond the amount requested by the Department of Defense, making for a grand total of $247.4 million that could be approved to make permanent a prison that virtually everyone agrees must be closed.
In response to this exorbitant price tag, Congressman Robert Andrews (D-NJ) offered an amendment eliminating the proposed increase and effectively barring the construction of permanent facilities at Guantánamo. Additionally, the Andrews amendment makes all funding for Guantánamo contingent upon Congress receiving a full report on the complete historical and future costs. As Congressman Andrews said, it makes no sense to "pay bills now and ask questions later." The committee rejected this amendment as well, approving instead a revised version (also known as a "perfecting amendment") offered by Congressman Whitman (R-VA), which does not strike the additional funding and retains only a superficial reporting requirement.
If Congress approves this funding, starting next year we will be paying close to 100 times as much to house detainees in Guantánamo as we do inmates in federal prisons in the United States, at a rate of roughly $3 million per detainee. Even in a time of budget surplus, let alone our current financial crisis, that ought to make all of us – and especially lawmakers – take a pause. As Congressman Smith pointed out last week, our maximum security facilities have successfully housed convicted felons – as well as individuals convicted of acts of terrorism, including Richard Reid (the "shoe-bomber") and Zacarias Moussaoui – without posing any of the dangers that Dick Cheney and others predicted.
For 12 years, the existence of Guantánamo has deprived the men held there of their human rights, chipping away at our moral standing in the world, our relationships with our allies, and the foundations of our system of justice, which demand that the only people who should be deprived of their liberty are those who have been charged, tried, and found guilty of a crime in federal criminal court. All others should be sent home, or to another country if there is any danger of torture or abuse.
These reasons alone more than justify closing the prison without delay. The financial burden only adds to those imperatives. It is time we ask ourselves how much we are willing to pay to perpetuate a human rights crisis and indefinitely detain 166 men – 86 of whom have already been cleared for transfer - and some of whom may literally be dying to be free.
I recently learned about a group of young people who did something extremely brave. They were invited to lunch with Nebraska's Governor, Dave Heineman, who honored them for winning Nebraska's Soccer State Championship. At the end of the lunch, they politely handed the Governor a letter asking him to reconsider his decision about driver's licenses for DREAMers. The idea to write the letter originated with three of the players, two of them deeply affected by the Governor's decision.
Like the two brave soccer players, I and thousands of other young Nebraskans have been denied a simple privilege given to many: a driver's license. After the Deferred Action for Childhood Arrivals (DACA) program was announced by President Obama last year, a weight was lifted off my shoulders. It was an immense feeling of relief and joy. I would be able to do what I have always wanted to do and do so without fear: achieve a career, fully give back to my community and my parents, and lastly -- be independent.
The State of Nebraska, through Governor Heineman's decision to deny me and other DREAMers a license, has made it difficult for me to acquire a job, obtain funding for my education, and even do the simplest things, like give a ride to my sister. It seems trivial, but it means a lot to her. At the same time, Nebraska is my home, and it has provided me with so many opportunities.
I came to Omaha at the young age of five. I attended school in Omaha starting with first grade up until my graduation from Central High School with honors. The simple fact that I graduated from high school is a basic opportunity that was given to me -- an opportunity that would have been costly and difficult in Mexico.
During my school years in Omaha, I was given the chance to expand my comprehension in several subjects like science and math and to express my creativity. I took a drafting class and learned the basic concepts of the architectural world. This made me think about how houses were designed and I realized I wanted to study architecture in college. Dedicated teachers that wanted to see me succeed challenged me and supported me. They knew I would face hardships as an undocumented student that could even make it difficult for me to graduate. I had to work hard. I was also given the beautiful opportunity of attending school at the University of Nebraska at Omaha with the tuition rate of a Nebraskan resident. If I lived in another state, I would have had to pay an international student's tuition, which was beyond my financial budget. Once I got to UNO, I discovered I was more interested in the technical rather than the creative aspects of architecture so I am studying engineering. I hope to get my master's degree at UNO as well.
Like those young soccer players at Governor Heineman's lunch, I realize that it's important to be thankful for the recognitions and opportunities I've been given, but that doesn't mean I won't stand up for myself and others when I see an injustice. That's just as much part of being an American as appreciating what you have and how others have helped you.
Omaha, Nebraska is my home, and I intend to continue living here, creating my legacy, and giving back to my community. I'm proud to be standing up for myself as a plaintiff in the ACLU's lawsuit to obtain driver's licenses for myself and other Nebraska DREAMers.
Because of the extraordinary revelations last week by the Guardian, Congress and the American people now know that the Patriot Act is being used by the National Security Agency to collect the phone records of all Americans, every day. There's no more debate about whether the government, and the military at that, is spying on us: only whether Congress is going to stop them.
Section 215 of the Patriot Act allows the government to obtain ‘any tangible thing' relevant to an investigation. According to Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, this authority has been used to collect all phone records in the U.S., even those of law-abiding citizens who have no connection to crime or terrorism whatsoever. The administration and a few members of Congress have confirmed and defended this practice as necessary to protect national security.
But there's no reason to believe that the government's collection efforts stop there.
Read the rest of the piece at POLITICO: http://www.politico.com/story/2013/06/roll-back-the-surveillance-state-92550.html
In the best tradition of educators who manage to be both entertaining and enlightening, Duke sociology professor Kieran Healy has posted “Using Metadata to Find Paul Revere”—a fascinating demonstration of just how revealing metadata can be when subject to certain quite simple but powerful number-crunching techniques. Using simple information about 260 colonists in the years before the American Revolution (what organizations they belong to), he shows step by step how the lowest analyst at the “Royal Security Agency” could use that data to build powerful insights into what might be going on among the rebellious colonists.
The scariest thing about this is just how small and simple the starting data set is. Healy concludes:
I must ask you to imagine what might be possible if we were but able to collect information on very many more people, and also synthesize information from different kinds of ties between people! For the simple methods I have described are quite generalizable in these ways, and their capability only becomes more apparent as the size and scope of the information they are given increases. We would not need to know what was being whispered between individuals, only that they were connected in various ways. The analytical engine would do the rest!
In other words, this demonstration has just show us a hint of what an organization like the NSA can probably do with metadata.
More evidence that (as we have argued at greater length elsewhere) those downplaying the intrusiveness of metadata are way behind the times.
Today is the 50th anniversary of the Equal Pay Act. On June 10, 1963, Congress enacted the first law to require employers to pay women the same salaries that they pay men. When the law was enacted, I was not quite one month old.
My mother fought for passage of the EPA. She brought me, her newborn baby, to a march on Washington to demand equal pay for women. My childhood was permeated with debates about "Women's Lib." Although she, like my father, was a university professor, prior to passage of the EPA, Columbia University could pay her less than it paid my dad, simply because she was a woman. Passage of the Equal Pay Act was the first major victory of the "second wave" women's movement.
May 17, 1963: the day Lenora was born
Unfortunately, the promise of equality the EPA represented continues to remain elusive. Although equal pay has been the law of the land for 50 years, women, on average, still earn only 77 cents for every dollar earned by men. This is a mere 18 cents increase from the green 59 cents pins I remember wearing as a child, during those wonderful marches on Washington I attended almost annually with my family, demanding equal pay for women and other civil rights.
To address the myriad factors that contribute to the gender wage gap, today the ACLU, along with 15 other national and state-based women's rights organizations, is launching the Equal Pay Today! campaign - an effort aimed at achieving women's equal pay by reforming policies and practices at the state and federal level that contribute to the gender wage gap. This exciting campaign will, for the first time since the Second Wave Women's Movement of the 1960s and ‘70s, bring together the leading women's rights organizations throughout the U.S. in a collaborative effort to jointly work to close the gender wage gap through state and federal policy reform and litigation. Today, we are sending letters to the governors of every state in the country asking them to stand with us and support women's equal pay. Specifically, we're asking all 50 governors to pledge to work with their state legislatures to enact necessary legislation and with their executive branch agencies to enforce extant laws in order to finally close the gender wage gap. In addition, through litigation, we hope that courts around the country, including the U.S. Supreme Court, will issue decisions recognizing the many factors that contribute to the gender wage gap such as employers' refusal to provide minor job modifications for pregnant women.
Numerous forces contribute to the persistent gender wage gap. Women working in the same job as men continue to be paid less and, due to salary secrecy policies, they - like Lilly Ledbetter – often remain unaware of this disparity. Occupational segregation keeps women out of male-dominated industries, and jobs held primarily by women, such as domestic work, remain at the bottom of the salary scale, often without basic labor protections such as a livable minimum wage and overtime compensation. Finally, women's presumed or actual primary responsibility for family caretaking often results in pregnancy discrimination, discrimination against nursing moms, and discrimination against employees who need flexible work schedules in order to take care of young children or elderly parents - all of which contribute to the ongoing gender wage gap.
We hope that New York State may lead the way in finally closing the gender wage gap. On June 4th, a coalition of several hundred organizations rallied in Albany, emceed by Donna Lieberman, the Executive Director of the NYCLU, in support of the New York Women's Equality Act—a package of legislation spearheaded by Governor Cuomo that includes critical protections to achieve pay equity, end family status discrimination, and stop pregnancy discrimination once and for all.
As my ten-year-old daughter, Izzy, and I listened to coverage of the rally on NPR, she commented, "I don't understand why employers wouldn't pay women the same salaries they pay men." I had a difficult time answering her. There really is no good reason - and for 50 years the law has said this is illegal. Hopefully, the New York Legislature will pass the Women's Equality Act, and other governors will follow Cuomo's lead and develop comprehensive bills that will end the gender wage gap in their states.
Lenora Lapidus and her daughter, Izzy
These state-based efforts will complement the ACLU's advocacy in support of the federal Paycheck Fairness Act. Due to loopholes in the Equal Pay Act, many factors that contribute to the gender pay gap go uncorrected. Such loopholes need to be closed, and the federal Paycheck Fairness Act would do just that. However, in case you haven't noticed, not many laws are getting passed in DC these days, and I'm getting tired of waiting.
I don't want Izzy to grow up and still be fighting for equal pay when her daughter turns 10. 50 years after the enactment of the EPA, I think we've had enough of not enough. We demand Equal Pay Today!
Motion Filed Today Cites Public's First Amendment Right to Know the Law, Need for Public Debate
June 10, 2013
FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, email@example.com
WASHINGTON – The American Civil Liberties Union, the ACLU of the Nation's Capital, and Yale Law School's Media Freedom and Information Access Clinic filed a motion today with the secret court that oversees government surveillance in national security cases, requesting that it publish its opinions on the meaning, scope, and constitutionality of Section 215 of the Patriot Act. That section, which authorizes the government to obtain "any tangible thing" relevant to foreign-intelligence or terrorism investigations, was the legal basis for the Foreign Intelligence Surveillance Court order revealed last week by The Guardian requiring Verizon to turn over months' worth of phone-call data.
"The ultimate check on governmental overreach is the American public," said Alex Abdo, staff attorney with the ACLU National Security Project. "For years, the government has secretly relied on sweeping interpretations of its surveillance powers, preventing the very debate it has now belatedly invited on the wisdom and legality of those powers."
In addition to the initial rulings by the court on Section 215, the motion filed today also asks whether earlier opinions have been revisited in light of more recent rulings by other courts, such as the Supreme Court's 2012 decision in the GPS tracking case U.S. v. Jones. Another answer sought by the motion is whether the FISA Court has considered the constitutionality of the "gag order" that bars companies from revealing that they have been ordered to turn over information under Section 215. (In 2008, a federal appeals court agreed with the ACLU that an analogous gag order provision relating to "national security letters" was unconstitutional.)
"In a democracy, there should be no room for secret law," said Jameel Jaffer, ACLU deputy legal director. "The public has a right to know what limits apply to the government’s surveillance authority, and what safeguards are in place to protect individual privacy."
The ACLU is currently litigating a Freedom of Information Act lawsuit, filed in October 2011, demanding that the Justice Department release information about the government's use and interpretation of Section 215. The documents released so far have provided very little information, and the Justice Department has said in court filings that legal opinions from the FISA Court can only be released by that court.
In 2007, the secret court rejected an ACLU request for the release of legal opinions relating to the Bush administration's warrantless wiretapping program. The motion filed today is different because it takes into account the past week's revelations about the NSA's surveillance activities.
Attorneys on the case are Jaffer and Abdo along with Brett Max Kaufman and Patrick Toomey of the ACLU; Arthur B. Spitzer of the ACLU of the Nation's Capital; and David Schulz, director of the Media Freedom and Information Access Clinic at Yale Law School.
Today's motion is available here.
Information on the ACLU's FOIA lawsuit is available here.
The ACLU and Yale Law School's Media Freedom and Information Access Clinic filed a motion today with the Foreign Intelligence Surveillance Court (FISC), seeking the release of secret court opinions that permit the government to acquire Americans' phone records en masse. The public has a right to know the legal justification for the government's sweeping surveillance—but, until now, those judicial opinions have remained a heavily guarded secret.
The ACLU filed its motion on the heels of last week's disclosure of an order, issued under Section 215 of the Patriot Act, compelling a Verizon subsidiary to turn over call details for every domestic and international phone call placed on its network during a three-month period. Since then, media reports and statements by members of the congressional intelligence committees have made clear that this order belongs to a much larger surveillance program—covering all the major telephone companies—that has been in existence for the past seven years. When pressed about the program, members of Congress as well as executive officials have emphasized that this mass acquisition of Americans' phone records was reviewed and approved by judges on the FISC.
Section 215 of the Patriot Act allows the director of the FBI to obtain secret court orders from the FISC compelling third parties to produce "any tangible thing" relevant to foreign intelligence or terrorism investigations. The orders are accompanied by a gag order forbidding recipients, like Verizon, from disclosing that they even received a demand for records. As a result, Americans know very little about the authority the government has claimed under Section 215 and the extent of the records acquired by the government under these orders.
But after last week's disclosures, we now know more about this surveillance program—and what we learned has been deeply troubling. Indeed, the fact that the FISC has allowed the government to demand the call details of all Verizon Business customers, and probably those of millions of other telephone subscribers, raises more questions than it answers. For instance, how could all phone records be "relevant" to authorized foreign intelligence or terrorism investigations, as the law requires for the government to demand these records? Likewise, why doesn't the government's seizure of such an immense amount of personal information, belonging to millions of innocent Americans, violate the Fourth Amendment, which protects against unreasonable invasions of privacy? How can Section 215 authorize such a vast and intrusive surveillance program, when almost no one understood at the time Congress passed the law that it had handed this sweeping power to our government?
The FISC's legal opinions presumably shed light on these pressing questions and others. The public is entitled to know the legal basis for such a program and the legal interpretation of Section 215 that supports the government's demand for a complete log of all our phone calls. As the ACLU lays out in its motion for release of these FISC opinions, the public has a First Amendment right to judicial opinions interpreting laws like Section 215. We can have an informed debate about the wisdom of this law only if we know what our courts have taken it to mean and why.
There is no question that these FISC opinions are critical to the public debate over government surveillance that last week's disclosures have sparked. The ACLU has been seeking the same FISC opinions through a Freedom of Information Act lawsuit for nearly two years, with the government stonewalling at every turn.
Now that the cat is out of the bag, public officials have rushed to defend the surveillance program, saying that it is court-approved and Americans only need to understand the safeguards that the government applies after storing this trove of phone records. President Obama himself stated on Friday that he "welcome[s] this debate" and thinks it's "good that we're having this discussion." Director of National Intelligence James Clapper complained that the disclosures "omit key information" about the program, and declared that "it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use." Unfortunately, officials seem to believe that the public's understanding should be based only on information the government selectively releases. Needless to say, this debate has come much too late, as a direct result of the government's secrecy—but the ACLU agrees that the public deserves to know much more.
The release of these FISC opinions is the first step to an informed public discussion of the surveillance powers asserted by the government. It should not be able to shield such a radical and unprecedented intrusion on Americans' privacy behind a secret court issuing secret legal interpretations of our laws.
My mom graduated from a prestigious, small women's college in the 1950s with dreams of graduate school – a true accomplishment for a Jewish girl from a modest economic background. She wanted to go to a scholarly graduate school, which would have given her more options, but her college advisor would only write her a recommendation for a teachers' college, steering her into what girls at the time were supposed to do for a living.
Today marks the 50th anniversary of the Equal Pay Act of 1963 – a landmark law that required equal pay for equal work for women for the first time. On this anniversary, I can't help but think about the impact of this law for women like my mom, who were in the workforce before and after its passage.
I am sure a lot of children say this about their moms, but my mom is truly one of the smartest people I have ever met. Unfortunately, she grew up in a time when a woman's talent was almost irrelevant to her earning potential because her options were limited by discrimination and stereotypes.
So she became a teacher, and by 1963, she was teaching English at a state university and making very little money. Later, while my dad, also brilliant and an important force in my life, was studying for his PhD, he wound up teaching for a period of time at the same college as my mom – making 25% more than she did, with less teaching experience.
After a short stint out of the workforce when she had her second child – me – because she could not get reliable child-care, she went back to work, and over the years, had different jobs, but always made less, in professions I am not sure quite fulfilled her.
I often feel sad about the potential she was not given the chance to realize. I also think about the loss for America, because of all the talented, smart women from generations before us whose options were limited. Our society has been short-changed by the constraints on their contributions.
On June 10, 1963, President Kennedy signed the Equal Pay Act. He said that the act was a "first step" which "affirms our determination that when women enter the labor force they will find equality in their pay envelopes." But he noted that "much remains to be done to achieve full equality of economic opportunity."
In the 50 years since the enactment of the Equal Pay Act, a lot has changed for women in the workforce. Inspired by my mom's struggles, I went to law school, became a civil rights attorney, and have been lucky to stand with champions who have fought for better workplace rights for women, like Lilly Ledbetter and Betty Dukes.
But not enough has changed. On average, women still make 77 cents on the dollar that men make – a mere 18 cent improvement since the signing of the Equal Pay Act a half century ago. As a teacher, my mom certainly made a lot less than male-dominated professions, but she also made less than her male teacher peers. Even today, male elementary and middle school teachers earn over 14% more than female teachers, even though women comprise almost 82% of the field. Female college and university teachers earned over 15% less than those who were male. And for me, female lawyers earn 25% less than their male peers – higher than the national average wage gap.
This 50th anniversary is a reminder of how far we have come and how far we have yet to go. Women can enter almost any profession now, and there are equal pay laws on the books. However, as the statistics show, we need new tools to finally close these gaps. In my job, I work for passage of the Paycheck Fairness Act - a bill that would update and strengthen the Equal Pay Act. This bill would help close the wage gap by providing stronger remedies for wage discrimination based on gender equal to those for race discrimination, by prohibiting retaliation against workers who inquire about their employers' wage practices, and by requiring that employers demonstrate that wage differences between men and women doing the same work have a business necessity.
My mother has been my motivation in many ways, and I work for women's rights in large part because of her. If the last 50 years has taught us anything, it is that laws can create an atmosphere where employers understand discrimination is no longer tolerated, but our work is not yet done. As President Kennedy said, the Equal Pay Act was the first step. For our mothers and all the women in our lives, we celebrate its anniversary and continue the fight for equality in our paychecks.
Want to do something about the wage gap? Ask Congress to pass the Paycheck Fairness Act.
This column was originally published on MSNBC.com.
Over the course of three days, the usually invisible National Security Agency has become ostentatiously visible and many Americans do not like what they see. In an effort to address the widely shared feeling that our vaunted system of checks and balances has utterly failed us, President Obama reassured the public Friday that the now-exposed spy programs were sanctioned by "all three branches of government." Is that true?
Yes and no.
There's no question, of course, that the executive branch backed the programs. In fact, both President George W. Bush and President Obama enthusiastically embraced the surveillance authorities that were used to justify them. Bush lobbied Congress to enact the USA Patriot Act in 2001 and the FISA Amendments Act in 2008. Obama urged Congress to reauthorize both of these statutes.
And Congress did enact these statutes and then reauthorize them, so it certainly deserves a great deal of the blame for the massive privacy intrusions that were disclosed this past week. But, as we were reminded when several members of Congress came forward to say that they had been unaware that the NSA was using the Patriot Act to collect phone data from millions of Americans, it can be very difficult for Congress to conduct oversight of top secret, highly compartmentalized intelligence programs. In fact, it seems certain that many members of Congress voted to reauthorize the Patriot Act provision at issue here—Section 215—without even knowing what they were authorizing.
What about the courts? It's true that a specialized intelligence court issued the orders approving the NSA's seizure of Americans' phone records—but the FISA court is no ordinary court. It meets in secret, allows only the government to appear before it, and rarely publishes its decisions. When the American Civil Liberties Union attempted to challenge the NSA's surveillance authority in ordinary federal court, the government succeeded in having the case dismissed on the grounds that we couldn't prove that our plaintiffs had been subjected to surveillance—because, of course, that surveillance is top secret.
So at best, judicial review has amounted to a secret court upholding a secret program by secretly re-interpreting a federal law. That's hardly the kind of firm endorsement by "all three branches" that the president's comments suggested.
And if we're asking whether our system of checks and balances is actually working, we should ask not only about oversight conducted by Congress and the judiciary but also about oversight conducted by the public. Can anyone seriously suggest that the public ever had an opportunity to evaluate the wisdom, necessity, or legality of the programs that were disclosed this past week? In his comments Friday, Obama said that he "welcomes" a debate about the proper limits on government surveillance. We welcome that debate, too. But why are we having this debate only now? Why was all of this secret for so long?
The surveillance information revealed this week did not disclose any operational details that would aid our enemies—there was no conceivable justification for keeping the American people in the dark until now. We should have had this debate before Congress authorized these sweeping powers, and certainly before the executive branch implausibly interpreted them to permit dragnet surveillance of Americans' communications.
It is probably safe to assume that the NSA is engaged in other surveillance that has implications for Americans' constitutional rights. The ACLU is currently fighting a Freedom of Information Act lawsuit to learn more about the government's interpretation of Section 215, but so far the Obama administration has refused to say anything about what kinds of spying it believes the provision permits. If Obama genuinely welcomes a debate over surveillance authorities, will his administration declassify enough information to permit an informed public debate, or will we have to wait for the next leak?
This past week's disclosures show that we need stricter limits on government surveillance, and stronger oversight mechanisms to ensure that those limits are honored. The suggestion that our system of checks and balances is working is wrong.
With all the attention over the past several months given to our DOMA challenge at the Supreme Court and to our state marriage campaigns from Rhode Island and Delaware to Minnesota (and we haven't given up the fight in Illinois!), you may be forgiven for thinking that here at the ACLU, it's all about marriage 24/7. I write to assure you it's not. Here are a few of the non-marriage struggles we're working on right now.
A trans young man fights to be himself. High school senior Issak Wolfe, of Red Lion, Pennsylvania, submitted his name for prom king. But when he got the ballot on election day, he was shocked to see that the principal had placed his female birth name on the ballot for "prom queen" instead. We're working to persuade school officials to extend transgender kids the same respect that Issak's classmates have given him over his high school years – and for Issak, to allow him to wear male attire and to be addressed as a man at graduation.
Getting accurate identity documents in Idaho. Idaho revoked the driver's licenses of two transgender residents, saying the gender markers on their licenses had been altered without the required proof of surgical changes. Just before our filing a lawsuit, the Idaho Transportation Department, persuaded by our arguments, decided to drop the surgery requirement, bringing Idaho in line with policies in most other states.
"If it's Wednesday, the ACLU must be suing a stupid-ass school district that will lose." So quipped LGBT legal observer Rex Wockner when the ACLU filed suit against the Lake County School Board (FL) to enforce 14-year-old Bayli Silberstein's right to establish a Gay-Straight Alliance at her middle school. The school board had responded to Bayli's GSA request with months of delaying tactics, including a proposed ban on all non-academic clubs. The litigation ended a day later (surely our shortest lawsuit ever), when the school board relented. For a video on Bayli being interviewed about her victory, see http://www.myfoxorlando.com/video?clipId=8846851&autostart=true.
Challenging Arkansas parenting restrictions. John Moix sought to deepen his relationship with his 12-year-old son, who lives with Moix's ex-wife. To do that, he approached an Arkansas family court judge for an expansion of his visitation rights. After a hearing, the judge found that it was in the son's best interest to spend more time with his dad and ordered the standard visitation, but there was one catch. John's partner Chad, with whom he had a long-term relationship and who, the judge wrote, "poses no threat to the health, safety, or welfare of the minor child," was barred from being present in their home during any overnight visitation. This put John in the dilemma of choosing between his son and his partner, but he chose instead to fight the restriction, often imposed by family court judges throughout the state.
We've taken John's case to the Arkansas Supreme Court, where we're challenging this partner restriction. We are no stranger to this high court, having brought two cases challenging anti-gay bans on foster care and adoptions to this court within the last decade . . . and winning both. We'll let you know how this one goes.
With a filing due next week in an ACLU Freedom of Information Act lawsuit, the Justice Department today asked a federal judge for time to reconsider its position on whether it will continue seeking to withhold documents related to its secret interpretation of Section 215 of the Patriot Act. That provision, which allows the government to acquire "any tangible thing" relevant to a foreign-intelligence or terrorism investigation, was the basis for the secret FISA Court order revealed this week by The Guardian telling Verizon to turn over troves of phone call data.
Until now, the government has taken the position that what it thinks it's allowed to do under Section 215 should stay hidden from the public. This is unacceptable, because it's impossible to debate the wisdom of a law if the public doesn't know how the government interprets it. But today, following last night's release of classified aspects of the NSA's surveillance practices by Director of National Intelligence James Clapper, the government asked the court for 30 days to consider whether to change its position in our FOIA case. Here's an excerpt from the DOJ letter to the court:
In light of the DNI's decision to declassify certain previously classified information, the Government requires time to consider what effect, if any, the DNI's decision has on the classification of information in some of the withheld documents still at issue in this case.
We take this as an encouraging sign that the government is considering handing over at least some of the information it has thus far declined to disclose – most importantly, Justice Department legal opinions and FISA Court rulings about Section 215.
Which federal court ruled that the police can seize the DNA of innocent Americans who have never been convicted of a serious crime, even without a search warrant?
Under what piece of legislation has the federal government been secretly surveilling the calls of every Verizon Business Network Services customer?
According to original ACLU analysis, arrests for what drug demonstrate staggering racial bias in drug law enforcement?
In which state was a 14-year-old chased, thrown to the ground and put in a chokehold by police officers based on the boy’s allegedly “dehumanizing stares”?
A Colorado bakery refuses to sell what baked good to same-sex couples for wedding ceremonies, yet will provide that same item for dog marriages?
Supreme Court Ruling a Blow to Genetic Privacy
The Supreme Court's 5-4 Maryland v. King decision upholding Maryland's arrestee DNA testing law is a serious blow to genetic privacy. The ruling allows the police to seize the DNA of innocent Americans who have never been convicted of any sort of crime, without a search warrant. And as Justice Scalia makes clear in his scathing dissent, the majority opinion goes against decades of precedent that makes it clear that the police cannot search an individual for evidence of a crime (and that's clearly what they are doing here) without a specific reason to think that the search will actually uncover some evidence.
The NSA Surveillance Order, Explained by the ACLU
Using the Patriot Act, the U.S. government has been secretly tracking the calls of every Verizon Business Network Services customer – whom they talked to, from where, and for how long – for the past 41 days, according to a report published by The Guardian.
NEW REPORT: Billions of Dollars Wasted on Racially Biased Marijuana Arrests
Marijuana has become the drug of choice for police departments nationwide. According to The War on Marijuana in Black and White, released on Tuesday, police made over 8 million marijuana arrests between 2001 and 2010, and marijuana arrests now account for half of all drug arrests in America. Almost 90% of these are for possession – which means that thousands of people have been unnecessarily ensnared in our criminal justice system just for having marijuana.
14-Year-Old Arrested for Playing with Puppy While Black. Seriously.
Last week down in Florida, 14-year-old Tremaine McMillian was playing in the water with a friend at the beach when a Miami-Dade police officer approached him to ask what he was doing, misinterpreting their play for a fight. Tremaine walked away from the officers, carrying his new puppy in his arms. After observing his allegedly "dehumanizing stares" and clenched fists, the officer used his ATV to chase Tremaine down and throw him to the ground in a chokehold so intense that the teenager wet himself during the incident. It was his mother who caught part of the incident on camera.
A Wedding Cake For Fido & Fluffy But Not For Dave & Charlie?
Stephanie Schmalz and her partner, Jeanine, wanted to order some cupcakes to celebrate their commitment ceremony. They contacted Masterpiece Cake Shop in Lakewood, Colorado, but the store refused to take their order, informing the couple that they have a strict policy against selling cakes for same-sex weddings and ceremonies.
Then Stephanie tried a little experiment. She called the bakery and told the owner, Jack Phillips, that she was planning to host a wedding celebration for two dogs. She told him that the dog wedding cake would need to feed 20 people and should be decorated with the names "Roscoe" and "Buffy." Without hesitation, Phillips quoted her a price and asked how soon she needed it.
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 our 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.
Last month, Massachusetts former drug lab employee Annie Dookhan was indicted on a number of charges, including tampering with evidence, for misconduct that may have compromised 60,000 drug samples and jeopardized 34,000 criminal cases. A similar but less publicized event is being investigated and addressed in Texas.
Earlier this year, the blog Grits for Breakfast reported that a controlled substances analyst at a state crime lab in Houston, Jonathon Salvador, was terminated when it was discovered he reported on a sample of drugs without testing them. After looking at more of his casework, state officials discovered similar misconduct in several other cases, calling into question any conviction based on his work. Mr. Salvador had worked on nearly 5,000 cases across 36 counties.
A number of convictions based on Mr. Salvador's work in Galveston County have already been reversed. A Harris County conviction was set aside this week, and it looks as if it will extend even farther. This week, the Texas Supreme Court ruled that anybody who has been convicted based on the now-suspect evidence has a right to a new trial, or maybe even a dismissal. You can find the full slate of Grits' detailed reporting on this investigation here.
Here are some other interesting items from the past week:
- The U.S. Supreme Court decided Maryland v. King this week, creating a gaping new exception to the Fourth Amendment. The issue in this case is whether the government may collect and analyze DNA samples from individuals who have been arrested, but not yet convicted, without a warrant or consent. As Justice Scalia's dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes. While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. This week's decision eliminated that crucial safeguard. Here's the opinion—read Justice Scalia's dissent—and here's a helpful review of the opinion.
- At the Washington Post, George Will authored an effective piece about the Federal Safety Valve Act introduced by Senators Leahy and Paul. Mr. Will concludes this way: "Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component." Read his entire argument, and learn more about the bill here.
- I wrote previously about Oregon's HB 3194, which in its initial form would have repealed several of the mandatory minimums that contributed significantly to the state's prison population. Those mandatory minimums were passed by voters in 1994's Measure 11. Last week, HB 3194 was amended to exclude repeal of Measure 11 offenses; lawmakers need a 2/3 majority to overturn policies passed by ballot initiatives, and such a majority was not found.
- The amended version of the bill would instead remove the mandatory minimums for repeat property and drug offenders that now exist under Measure 57, along with a number of other reforms. You can read about the latest developments here.
- You can review recent activity in state legislatures to reduce prison populations, with contextual information about each state, at our new map.
Revelations this week that the U.S. government has the ability to secretly tap into a wide range of Americans' online activities, including Skype video chats and Facebook communications, serve as an eerie reminder of the threat state surveillance poses to democracy. This sentiment was echoed earlier this week at the United Nations Human Rights Council, where a landmark report spotlighted the widespread use of surveillance technologies by governments all over the world in violation of the human rights to privacy and freedom of expression.
The report was issued on Tuesday – just one day before The Guardian revealed that the National Security Agency is collecting the phone records of millions of Americans – by the U.N. independent expert on freedom of opinion and expression, Frank La Rue. It represents an important step toward ending the U.N.'s traditional silence on state surveillance. The expert's conclusion was prompted by the dizzying proliferation of new technologies and surveillance techniques, paired with a concerning rollback in legal safeguards. As La Rue stated upon the report's release, "The State now has a greater capability to conduct simultaneous, invasive, targeted and broad-scale surveillance than ever before."
Foreshadowing this week's exposure of just how wide the United States has cast its net in its surveillance programs, the report's findings document a significant increase in unchecked executive power since wiretaps were first authorized in the United States. The report also emphasizes the troubling U.S. practices of surveilling foreign individuals' emails, personal documents, and location data hosted by cloud services (Google and other large Internet providers) located in the United States.
The report finds:
Whereas traditionally communications surveillance was required to be authorized by the judiciary, increasingly this requirement is being weakened or removed…Many States have dispensed with the need for law enforcement agencies to return to the court for ongoing supervision after an interception order is issued…Even when judicial authorization is required by law, often it is de facto an arbitrary approval of law enforcement requests.
And as we have seen in the United States, invocations of national security are a common justification worldwide for problematic surveillance practices. "Vague and unspecified notions of ‘national security' have become an acceptable justification for the interception of and access to communications in many countries," says the report.
This intrusion into privacy has a chilling effect on the exercise of free expression - as the report concludes, "States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting, and promoting their right to privacy."
Later this month, the U.S. government will have to answer to the United Nations Human Rights Committee regarding its surveillance program as it submits replies to the body of independent experts responsible for reviewing its compliance with the International Covenant on Civil and Political Rights (ICCPR) - a key human rights treaty ratified by the United States in 1992, which, among other things, protects the right to privacy and free expression. In advance of its formal review this October, the United States was asked to specify "which steps the government has taken to ensure judicial oversight over National Security Agency surveillance of phone, email and fax communications," both inside and outside of the United States, as well as what circumstances justify "roving" wiretaps.
The ACLU will continue to work to end this abuse of power and hold the U.S. accountable to its obligation to respect the rights to privacy and free speech under the U.S. Constitution and international human rights law.
Issak Wolfe, a transgender student at Red Lion School District, graduates today. Graduation day is one of life's big milestones and cause for celebration. Unfortunately, Issak's big day will be marred by the fact that the school district has refused to respect his gender identity, and will read Issak's female birth name at graduation instead of the male name he has gone by consistently for two years.
The school district is not required to read his legal name. It could have chosen to be kind, understanding, and accommodating to a teenager who has endured much unkindness already. Instead, they have refused this simple accommodation that would cost them nothing, but would mean the world to Issak and his family.
In a June 5 letter to the ACLU, the school district stated that it was in the "best interests" of the school district and the entire graduating class to announce Issak by his legal, female name. They did not explain exactly how disrespecting Issak benefits the school or his classmates.
Although not surprising, the school's refusal to use his male name was hard for Issak to take – particularly since the announcement was followed by a graduation rehearsal at which the administration stressed to the graduating class how important it was to graduates and their families for the school to read everyone's "correct names."
School officials should be in the business of supporting students. They should model acceptance and compassion for others. Instead, Red Lion School District has displayed pettiness and arbitrariness in its treatment of Issak.
Although the mean-spirited acts of school administrators haven't always made life easy for Issak, Issak has worked tirelessly to make his school a safer space for his classmates and future students, urging respect for all students and an end to discrimination on the basis of gender identity and expression. Although Issak leaves the Red Lion Area School District today, he leaves behind an important legacy of tolerance. Hopefully, one day the district will be ready to embrace Issak's message.