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Updated: 34 weeks 4 days ago

A Key Lesson from the 1986 Immigration Reform Is in Jeopardy

Mon, 05/20/2013 - 9:45am

Another day, another amendment to the Senate immigration reform legislation from Sen. Chuck Grassley (R-Iowa) that would harm immigrants' civil liberties. Amendment 17, which will be up for consideration this week in the Senate Judiciary Committee's markup of the immigration reform bill, would unwisely (and unconstitutionally) restrict the ability of immigrants to correct erroneous denials of legalization by barring the courthouse door to them.

What does this mean in practice? If immigration reform is passed, a variety of regulations will determine which of the 11 million aspiring citizens are eligible to be given a roadmap towards citizenship.

But, as one might imagine, as new provisions are implemented for the first time, mistakes about who qualifies to be on the road to citizenship will be inevitable. In Grassley's amendment 17, the judicial branch won't be allowed to correct these mistakes.

If the executive branch were to adopt a regulation, policy or practice that erroneously denies tens of thousands of people legalization, under Grassley's amendment, there would be no way to correct it - even if the regulation, policy or practice is inconsistent with the clear intent of Congress in the immigration reform bill.

Giving an agency employee the sole responsibility to make such important decisions puts too much unchecked power in the hands of a single agency employee. A single error by a single agency employee could destroy the dream of citizenship for many aspiring Americans who contribute to the vitality of this country, including the DREAMers, young immigrants who were brought to the United States as children. Such an error could result in long-term, often permanent, separation of spouses or separation of parents from their children. Without judicial review, these errors will go uncorrected.

We've been down this road before. After President Reagan signed the 1986 immigration reform bill into law, judicial review proved indispensable in ensuring that the executive branch did not unlawfully deny tens of thousands of applications through unreasonable policies.

Sen. Grassley's amendment doesn't learn from this positive of the 1986 immigration reform law. Furthermore, it is unconstitutional. As it stands now, the immigration reform bill has strong judicial review provisions. We encourage senators to keep them in and reject Grassley 17.

For more information about the immigration reform bill, go to: https://www.aclu.org/immigration-reform-2013

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Immigration Reform: Week Two Is Through

Mon, 05/20/2013 - 8:59am

After two more long days last week of largely unsuccessful attempts to scuttle the immigration reform bill, the Senate Judiciary Committee now is looking at the gargantuan task of wrapping up consideration – somehow, some way – before the end of this week. On Tuesday, the Committee completed work on the border security section of the bill and then began consideration of the section dealing with non-immigrant visas – addressing labor needs. Work on those issues continued on Thursday and then transitioned to enforcement, including the E-Verify employment verification system. All told, the Committee was busy this week – considering 64 amendments and adopting 40 of them. All but two of the amendments were adopted on a bipartisan basis. Ninety-nine amendments have now been considered (including modifications), and quite a few more have been withdrawn, out of the 300 amendments originally filed. Despite the accomplishments, the Committee still must figure out a way to deal with perhaps 150 amendments before Senators return to their home states at the end of the week for the Memorial Day recess.

Tuesday's session finished off the work on border security. Those largely opposed to providing a path to citizenship are intent on making sure the southwest border, in particular, is as militarized as possible before any such path will be created. The original bill includes many provisions doing just that, but further attempts were made on Tuesday. Two of the most dangerous and disingenuous amendments came from Sen. Sessions (R-Ala.), who tried to impose impossibly high security mandates as a condition for, in one case, adjustment of status decisions and, in another, the visa waiver program. Fortunately, both amendments were rejected in bipartisan fashion. Other key votes included:

  • The Committee adopted a modified version of a Senator Feinstein (D-Calif.) amendment that restricted the use of unmanned surveillance drones to within three miles of the land border in southern California.
  • And the Committee also adopted a proposal by Senator Coons (D-Del.) that would limit certain dangerous deportation practices that put migrants in jeopardy when they are returned to their country of origin.
  • The Committee approved the proposal of Senator Klobuchar (D-Minn.) to provide immigration status for certain domestic violence victims.

Each of these items was adopted on a bipartisan voice vote. Our vote recommendations on the border security section of the bill are here.

On Thursday, the Committee completed its work on non-immigrant visas and then took up enforcement issues. Our vote recommendations on the enforcement section of the bill are here. The original immigration reform bill mandates the nationwide adoption of an employment verification system – E-Verify – that we have roundly criticized for years. The system is fraught with inaccuracies and the pilot programs currently in use contain few due process protections. In short, the system is a nightmare – for ALL workers and employers, not just those it's designed to keep from working. The drafters of the bill, to their great credit, provided certain protections for those unjustly barred from obtaining employment approval. It provides mechanisms to correct records and obtain relief.

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Senator Franken (D-Minn.) also offered several amendments designed to improve the accuracy of the system and to provide assistance to smaller employers attempting to deal with the mechanics of the program. Two of those amendments were adopted by a bipartisan voice vote. The Committee also approved a proposal by Senator Coons that would improve security and privacy issues with E-Verify by requiring the issuance of a notice to anyone whose name is being checked through the system. And a bipartisan group of Committee members rejected a proposal by Senator Grassley (R-Iowa) that would have allowed a patchwork of different state employment eligibility laws to control until the E-Verify system is fully phased-in in five years. One major outstanding issue that has not yet been addressed is the push to put every American's photo in the E-Verify system. In short, the system is a big part of this immigration bill – it contains some substantial and essential protections that have never been included in earlier proposals to adopt such a system but more work needs to be done.

It will be a long week, this week. On Monday, the Committee will finish up provisions dealing with enforcement and, if there is time, move on to the core of the bill: the eligibility provisions. Here is where those who oppose the bill can do the most harm. So far, the bill has retained its essential character as a product of extensive negotiations between those with fundamentally different views. Both sides have offered significant concessions. But the debate to come offers the opportunity to change the bill at its heart – and the outcome of the amendment process this week may make the difference in determining whether this bill has the legs to get through the approval process on the Senate floor next month. Stay tuned!

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Happy 20th Anniversary to the National Voter Registration Act! May It Have Many More

Mon, 05/20/2013 - 8:50am

Twenty years ago today, Congress passed the National Voter Registration Act (NVRA), in order to make voter registration free, fair, and accessible for all Americans. The statute has been a resounding success, helping to enfranchise millions of Americans across the country.

The NVRA is often referred to as the "Motor Voter" law, because it requires states to offer voter registration with applications for driver's licenses. But other provisions are equally important. The NVRA requires states to offer voter registration to applicants for public assistance programs such as Medicaid and the new health benefit exchange that is required under the Affordable Care Act. . It also protects the right of citizens and civic associations to conduct volunteer voter registration drives, and removes state-imposed barriers to registration, by creating a one-page standardized voter registration form for use in all states, on which voters affirm their eligibility as citizens by signing a sworn affidavit.

Yet since its inception, the NVRA has been subject to efforts by states to defy its mandates. In an ACLU case currently pending before the Supreme Court, Arizona v. the Inter Tribal Council of Arizona, ACLU clients are challenging the State of Arizona's attempt to impose additional barriers to voter registration beyond the requirements of the standardized federal voter registration form. Specifically, Arizona's Proposition 200 forces Arizona voters to go beyond the federal requirement that voters sign an affidavit as to their citizenship status, but also supply hard-copy documents proving their citizenship status, despite the bureaucratic barriers often involved.

The NVRA provides for a single federal form to be sufficient for voter registration throughout the country, so that states could no longer add burdensome restrictions on the voter registration process. Thus, last year, the U.S. Court of Appeals for the Ninth Circuit ruled that Arizona's law violated the NVRA's plain text and its overall purpose. Although Arizona claimed that its law was necessary to prevent non-citizens from registering to vote, the court recognized that the NVRA already does precisely that, by requiring would-be voters to attest as to their citizenship under penalty of perjury. What federal law does not permit, however, is for states to impose complicated, inconsistent, and superfluous burdens on voters.

Arizona has now appealed the lower court decision to the U.S. Supreme Court, which heard the case in April. If the Supreme Court allows the Arizona law to stand, it would effectively eviscerate the NVRA's prohibition on state-imposed barriers to voter registration.

There is no right in our democracy more fundamental than the right to vote. The NVRA makes real our nation's commitment to the principle that all citizens, no matter how poor, are equal members of our society. One would hope that, on the 20th anniversary of the NVRA, the Supreme Court will recognize that states must not be permitted to evade federal law by re-defining the qualifications necessary to register to vote.

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AP Phone Records Scandal Highlights a Broader Problem: Lack of Checks and Balances on Government Access to Records

Mon, 05/20/2013 - 8:36am

Last week we learned that the Department of Justice, in an unprecedented intrusion on the work of journalists, had obtained records for twenty telephone numbers belonging to the Associated Press or its reporters, spanning April and May 2012. The telephone records obtained do not include the content of phone calls, but they likely reveal the phone number of each and every caller on those lines for a period of weeks and, therefore, the identity of scores of confidential media sources.

The seizure of these records came to light only because the government has a special set of guidelines that require it to notify any media organization of a subpoena for its records within (at most) 90 days. The AP appears to have learned of the seizure of its phone records, albeit after the fact, only because of this special policy.

The notice given to the AP has generated a healthy debate over the limits on the government’s authority to acquire our telephone and internet records. But what if you aren’t a media organization and, therefore, do not benefit from the special government policy entitling you to notice when the government obtains your telephone or internet records? What information can the government get about you, and is it even required to tell you when it does so? The short answer is: it can learn a great deal about your communications, often without even getting a warrant, and it is generally not required to tell you it’s done so at all.

Today, the government has many different tools to seek phone records or personal electronic data from your phone company or internet service provider. And, in many cases, current law does not require the government to provide you with notice at all, even after the fact. As an example, take a look at two of the most significant tools at the government’s disposal, including those it may have relied upon in seeking the AP’s phone records:

  • The Electronic Communications Privacy Act of 1986 (ECPA) permits the government to obtain exactly the kind of telephone records and other subscriber information that it likely seized from the AP. Under this statute, the government can require a telephone company to turn over: a subscriber’s local and long distance telephone connection records; records of session times and durations; telephone number or other subscriber number or identity; and means and source of payment for service, including any credit card or bank account number. ECPA also permits the government to seek parallel information from an internet service provider, including the IP address assigned to a subscriber and the IP addresses of the websites he or she has visited.
  • National Security Letters (NSLs) authorize the FBI to compel a wire or electronic communication service provider to turn over “subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession.” No court is required to approve an NSL and, since 9/11, the FBI has issued tens of thousands of NSLs each year. Documents previously obtained by the ACLU show that the FBI often uses NSLs to demand email header information, which includes the “to” and “from” lines of individual email messages.

To obtain subscriber information using either ECPA or an NSL, the government need not go to a judge for a warrant. Both statutes make it far easier for the government to obtain this information. Under ECPA, it can use a secretive grand jury subpoena, an administrative subpoena, or a court order showing that the records sought are simply “relevant and material” to an ongoing criminal investigation. For NSLs, the FBI can simply certify, unilaterally, that the records are “relevant” to an intelligence or terrorism investigation. In either case, it is a very low bar, particularly for records as extensive and revealing as those seized from the AP—likely hundreds of phone calls covering a period of weeks or even months.

Remarkably, neither ECPA nor the NSL statute require the government to give any notice whatsoever when it acquires someone’s telephone or internet records. Even more, these statutes permit the government to obtain a gag order prohibiting the telephone company or internet service provider from notifying its subscriber of the intrusion. The AP learned about the demand for its records only because of the special DOJ guidelines that give added protection to media organizations. But in most cases, and for most individuals, there is simply no right to notice and no opportunity to challenge the government’s demand for personal information held by one’s telephone company or internet service provider. In short, if the government goes after this information and you are not a member of a media organization, you may well never know.

This lack of notice is one crucial element of the growing gap between our privacy rights and our personal information. By necessity, we depend on telephone companies and internet service providers to transmit our private phone calls and email messages. Based on a decades-old decision, the courts and the government believe that who we call or who we email is not private because our telephone and internet companies store records capable of revealing this information. But that does not match our reasonable expectations of privacy in today’s world. Nor does it diminish our interest in knowing when the government demands records that would reveal our personal communications and contacts to law enforcement.

This interest in notice is, in part, practical: individuals cannot depend on telephone companies and internet service providers to challenge government efforts to seize personal information, even where the government may have overreached or exceeded its authority. As large corporations enmeshed in a host of government relationships, the interests of these companies are not necessarily aligned with the privacy rights of their individual subscribers. A proper defense of these rights begins with notice to the individual whose information is at stake.

The AP’s experience is a reminder of how much of our private information the government may demand—including the phone numbers we call, the email addresses we contact, and the websites we visit—and how easy our current laws make it for the government to get this information without our ever knowing.

Barbara Brenner, 1951-2013

Mon, 05/20/2013 - 8:00am

The ACLU mourns the loss of a great leader, tenacious activist, and close friend of the organization. Barbara Brenner, the longtime director of Breast Cancer Action ("BCA"), was a frequent and trusted ACLU collaborator – as an employee at the ACLU of Southern California's women's rights project, as a law intern at the ACLU of Northern California, as an affiliate and national board member, as a cooperating attorney, and, most recently, as a client.

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Under Barbara's leadership, BCA became a key plaintiff in our challenge to human gene patents that was heard by the Supreme Court just last month. Barbara and BCA have always been real allies in educating the breast cancer community, as well as the public as a whole, about the impact of gene patents on patients.

The ACLU's Executive Director, Anthony Romero, reflected on just one of her legacies: "The possibilities for expanded scientific and medical research are tremendous, and Barbara's bold leadership enabled the ACLU to be in this fight. When these patents are overturned by the Court, this will be yet another example of Barbara's intrepid vision and strength."

The ACLU's Deputy Director, Dorothy Ehrlich, described our partnership in BCA's tribute to Barbara: "Barbara and the ACLU have always been a perfect fit: she had that lawyers' love of precision – getting the policy exactly right – and the activists' passion about the issues of social justice. She is the most courageous advocate I have ever known."

Despite losing the ability to speak due to amyotrophic lateral sclerosis (ALS), she continued to be a fierce advocate writing about breast cancer and ALS on her blog, Healthy Barbs. Barbara died on May 10 from complications of ALS. The ACLU will miss her.

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"Drones" vs "UAVs" -- What's Behind A Name?

Mon, 05/20/2013 - 6:00am

Representatives of the drone industry and other drone boosters often make a point of saying they don’t like to use the word “drones.” When my colleague Catherine Crump and I were writing our drones report in 2011, we talked over what terminology we should use, and decided that since our job was to communicate, we should use the term that people would most clearly and directly understand. That word is “drones."

Drone proponents would prefer that everyone use the term “UAV,” for Unmanned Aerial Vehicle, or “UAS,” for Unmanned Aerial System (“system” in order to encompass the entirety of the vehicle that flies, the ground-based controller, and the communications connection that connects the two). These acronyms are technical, bland, and bureaucratic. That’s probably their principal advantage from the point of view of those who want to separate them from the ugly, bloody, and controversial uses to which they’ve been put by the CIA and U.S. military overseas.

I suppose there is a case to be made that domestic drones are a different thing from overseas combat drones. Certainly, there’s a wide gulf separating a $17 million Reaper drone armed with Hellfire missiles and a hand-launched hobbyist craft buzzing around somebody’s back yard. But drone proponents themselves would be the first to say that drones are a tool—one that can be used for many different purposes. They can be used for fun, photography, science, surveillance, and yes, raining death upon people with the touch of a button from across the world. Even the overseas military uses of drones vary, including not just targeted killing but also surveillance and logistics.

Putting aside well-founded fears that even domestically we may someday see the deployment of weaponized drones, in the end, the difference between overseas and domestic drones is a difference in how the same tool is used. Regardless of whether you’ve got a Predator, a Reaper, a police craft, or a $150 backyard hobby rotorcraft, that tool is what it is. What it is is a drone.

I can’t touch on this subject without quoting from George Orwell’s famous essay “Politics and the English Language,” in which Orwell argued that bland and needlessly complicated language was a political act—a symptom of attempts to cover up things. “Such phraseology is needed if one wants to name things without calling up mental pictures of them,” he wrote. Defending the English language against such obfuscatory usages, he argued, requires writers to:

  • Use “the fewest and shortest words that will cover one's meaning.”
  • “Let the meaning choose the word, and not the other way around.”
  • “Never us a long word where a short one will do.”
  • “Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.”

All of which back up our decision to stick with the word “drones.” In light of the overseas uses of drone technology, it’s worth noting Orwell’s conclusion:

Political language—and with variations this is true of all political parties, from Conservatives to Anarchists—is designed to make lies sound truthful and murder respectable.

If the word “drones” has horrible connotations, it’s because the technology has in fact been associated with horrible things. Many Americans may not pay attention, but when U.S. drones bring dismembering explosions down upon wedding parties, women, children, and other innocent civilians, they generate all the warm feelings and associations in those countries that the Boston Marathon bombing brought here.

In any event, if we change the word we use for drones and they continue to be used for such purposes, then the new word will just gain the same associations as the old. Linguists call that the “euphemism treadmill”—the process by which euphemisms lose their value as euphemisms and take on all the negative coloring of the original word. For example, the words “moron,” “imbecile,” and “idiot” were once neutral terms referring to specific levels of mental disability. They were replaced with the euphemism “mentally retarded”—but in time that has also come to be seen as offensive.

The good news for drone boosters is that the very fluidity of the meaning of words that makes a euphemism treadmill possible also means there is plenty of opportunity for the word “drone” to gain more positive connotations over time. If the technology does, in fact, bring benefits to our lives, and not just continue as a surveillance and killing tool, then the word will start to take on the warm and fuzzy tones its proponents would like.

Mainly we at the ACLU use “drones” because that is the clearest way to communicate. At the same time, if the word continues to carry a reminder that this is an extremely powerful technology capable of being used for very dark purposes, then that’s not necessarily a bad thing.

New Push, at Home and Abroad, to Combat Modern-Day Slavery

Fri, 05/17/2013 - 4:07pm

A White House task force set up to combat human trafficking held its annual meeting today, chaired by Secretary of State John Kerry. The cabinet-level group, called the President's Interagency Task Force to Monitor and Combat Trafficking in Persons (PITF) coordinates the U.S. government's efforts to eradicate the phenomenon commonly likened to "modern-day slavery."

At the meeting, Secretary Kerry stated he had been "stunned by the stories and examples of the evil... It is nothing less than the most predatory, extraordinary modern slavery that you can conceivably imagine."

The PITF was not the only human trafficking-related event this week.

On Monday and Tuesday, the United Nations convened a high-level General Assumbly meeting on the Global Plan of Action to Combat Trafficking in Persons. The Plan of Action commits governments around the world to fully implement key anti-human trafficking treaties and to join forces to counter the multi-billion dollar industry which has trapped some 21 million men, women and children in forced labor. At the meeting, actress Mira Sorvino, the United Nations Goodwill Ambassador to Combat Human Trafficking, described human trafficking as "one of the great social justice issues of our time." The United States also addressed the meeting, stating, "(t)he solution in face of this scourge is clear – joint action across nations and across UN agencies." United Nations Secretary-General Ban Ki-moon noted that "(h)uman trafficking devastates individuals and undermines national economies," and called on governments to prevent trafficking by ratifying relevant treaties, implementing the U.N.'s Global Plan of Action against trafficking, and making contributions to the United Nations Voluntary Trust Fund to help victims.

The ACLU endorses these measures and encourages the U.S. to do more to address human trafficking through better monitoring and enforcement of existing anti-trafficking laws, policies and practices.

For years, the ACLU has worked with other organizations to protect the human rights of victims of labor trafficking. That work has included:

  • Advocating on behalf of 500 guestworkers from India who were trafficked into the U.S. through the federal government's H-2B guestworker program with dishonest assurances of becoming lawful permanent U.S. residents and subjected to squalid living conditions, fraudulent payment practices, and threats of serious harm. The workers' lawsuit, which was filed in 2008, highlights serious flaws in the current guestworker program wherein foreign low-wage temporary workers are subjected to numerous human rights violations including trafficking and forced labor. These violations take place due in part to the exploitation of visa application processes by duplicitous recruiters and employers. The lawsuit also highlights the U.S. government's failure to regulate and supervise these visa schemes appropriately to prevent abuse, and failure to vigorously enforce anti-trafficking and labor laws when violations occur.
  • Advocating on behalf of foreign workers, known as Third Country Nationals (TCNs), contracted to perform services for the United States overseas, including in Iraq and Afghanistan. Many of these workers have been deceived about how much they will be paid, as well the nature and location of their job, and charged thousands of dollars in recruitment fees that effectively place them in debt bondage. Last year, President Obama issued an important Executive Order aimed at addressing these issues and in January this year Congress enacted legislation designed to achieve these same ends. These measures, while welcome, will only prove effective if they are properly implemented and enforced. Together with a coalition of anti-trafficking groups, the ACLU recently made recommendations to the Federal Acquisition and Regulatory (FAR) Council to ensure the laws effectiveness.
  • Advocating on behalf of domestic workers trafficked into the United States by foreign diplomats stationed here and subjected to forced labor and other abuses.  Because of diplomatic immunity, victims are left without access to legal remedies for these abuses. Domestic workers are a uniquely vulnerable population as they do not generally enjoy the right to organize, minimum wage protections, or other fundamental workplace protections, and their race, gender, immigration status, education levels, and physical isolation in the home make them particularly susceptible to labor trafficking.

Today's PITF meeting and Monday and Tuesday's UN meetings were important reminders that despite some progress, much more must be done by governments and civil society to combat human trafficking in this country and to provide redress and other support to victims.

In the words of Secretary General Ban Ki-moon, "(h)uman trafficking is a vicious chain that binds victims to criminals. We must break this chain with the force of human solidarity."

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Maryland Stands Up for Pregnant Workers

Fri, 05/17/2013 - 2:22pm

Yesterday, Maryland's governor signed into law legislation protecting pregnant women from workplace discrimination. This should be a no-brainer.

Picture this: you have a good job, you have medical benefits, you're financially stable, and you decide it's time to start a family. Sounds reasonable, right? But what would you do if your employer decided to place you on unpaid leave and cut your medical benefits because you're pregnant? You might take your employer to court.

That's just what Peggy Young, a UPS package driver from Maryland, did with support from the ACLU, the ACLU of Maryland and over 10 other organizations. As crazy as it sounds, UPS's policy was to offer light duty assignments to a variety of workers who were temporarily unable to perform their regular tasks: workers who were injured on the job, workers with a qualifying disability under the Americans with Disabilities Act, workers who lose their commercial driving licenses, and workers involved in car accidents. But not pregnant women. And, an appeals court, in a decision that defies logic, held that to require UPS to give pregnant workers the same kinds of accommodations it gives other workers would be to grant special "most favored nation status" to pregnant employees.

Fortunately, Maryland realized just how seriously flawed that decision was and, with the ACLU of Maryland's support, enacted legislation requiring employers to provide the same treatment to pregnant employees that they already are obligated to provide to other employees with temporary physical restrictions. Families in Maryland can rest easier knowing that their jobs and benefits will be safe when they decide to have kids.

But our work isn't done. A number of other states are considering similar bills, and a nationwide fix bill, called the Pregnant Workers Fairness Act, was just introduced in Congress. We'll keep working to ensure that employers can't treat pregnant women worse than other workers who have certain job limitations, and we encourage you to join with us: 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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Experts Discuss Surveillance Society at Domestic Drones Hearing

Fri, 05/17/2013 - 2:14pm

An important Congressional subcommittee held a hearing today on domestic drone use. Members and witnesses didn't just rehash familiar concerns; they dug deeper to explore how advanced surveillance technology has become, and the real dangers of the surveillance society that it creates.

The hearing, held by the House Judiciary Committee's Subcommittee on Crime, Terrorism, Homeland Security, and Investigations began with testimony from the ACLU and three representatives from the academic community. (You can read the ACLU's complete testimony here.) While they had different ideas of what government regulation of domestic drone use should look like, the witnesses all stressed the increasing sophistication of drones, which will lead to levels of surveillance previously unseen. The testimony drove home the fact that drones are getting smaller, cheaper, and their use is about to blow up.

While witnesses disagreed on solutions, the discussion made it clear that drones are just one part of a bigger surveillance state. Tracey Maclin, from the Boston University School of Law, described surveillance cameras that can detect thermal imaging and read license plates, and are even equipped with facial recognition technology that can track individuals based on height, age, gender, or skin color. The ACLU's Chris Calabrese concurred and took the argument one step further, explaining that such information can be tied to sensitive location data pinged from an individual's cell phone – resulting in continuous, long-term monitoring.

Gregory McNeal from the Pepperdine University School of Law referenced the ARGUS-IS to demonstrate how advanced the technology has become. ARGUS-IS, one of the most powerful aerial surveillance systems available (we have written about it in depth here), is basically a super-high resolution (1.8 gigapixel) camera that can be mounted on a drone. As demonstrated in this clip, the system is capable of monitoring and recording an entire city in high resolution.

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The hearing reinforced many of the concerns that we have raised with drone use and other forms of mass surveillance - it changes the very notion of the public space, and intrudes on Americans' reasonable expectation of privacy. The fear that big brother could be watching our every move is likely to chill the exercise of our fundamental rights by affecting our decisions to do anything from participating in a political protest, to attending a mosque service, meeting with a therapist, or simply sun bathing.

Members also debated whether Congress or the courts are best fit to protect our privacy in the face of such invasive surveillance. Calabrese explained that because the courts often only tackle a particular situation or fact pattern, Congress is better suited to protect Americans' privacy by creating carefully balanced legislation. Legislators are in touch with their districts and have an understanding of what their constituents' expectations are. Clear rules can encourage growth in the developing domestic drone industry, while still protecting our right to privacy.

The ACLU continues to support Rep. Ted Poe's (R-Texas) Preserving American Privacy Act, which we believe is a strong first step in this effort. The bipartisan bill would ensure that government's –particularly law enforcement's – use of drones will not violate the Constitution. It would require police to get a warrant based on probable cause before launching a drone to search a non-public area. For public spaces, the standard would be reasonable suspicion of criminal activity as well as a reasonable probability that the drone will capture evidence of that criminal activity. These requirements would guard Americans against being the subjects of mass surveillance by law enforcement, while still allowing police to benefit from the technology.

We applaud the subcommittee for holding this hearing and beginning this important conversation. We encourage them to act in favor of safeguarding Americans' privacy by moving forward with Rep. Poe's bill.

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This Week in Civil Liberties (05/17/2013)

Fri, 05/17/2013 - 1:39pm

 

In which state was a Heights High School senior class president suspended and banned from delivering his scheduled convocation speech because of a harmless tweet?

Which political group was unfairly targeted for aggressive enforcement by the IRS?

In which state was a transgender student humiliated by school administrators who misgendered him by placing his name on the ballot for prom queen?

Which Senate Committee is scheduled for three weeks of mark-up sessions to deal with the 300 amendments to the bipartisan immigration reform bill?

True or False? A federal magistrate judge in New York ruled that users should only expect Fourth Amendment privacy protections on their cell phone data when the device is powered off.

In Disturbing Trend, Kansas School the Latest to Punish Student for Harmless Tweet

In a gently mocking 48-character Twitter post, Heights High School senior class president Wesley Teague wrote: "Heights U' is equivalent to WSU's football team." A seemingly innocent message, but you wouldn't know it from the school's reaction. Administrators suspended Wesley for the rest of the school year, stripped him of his post as senior class president, cancelled his scheduled convocation speech and banned him from most graduation-related events. (The school has since decided that Wesley will be able to attend graduation ceremonies, but will not be allowed to speak).

IRS Abuses Power in Targeting Tea Party

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.

A Boy Named Issak

Issak Wolfe, a high school senior in Pennsylvania, wanted to be prom king. But the school denied him his chance—simply because Issak is transgender.

Despite taking the proper steps to secure his name on the boys' ballot, Issak found his old female name listed under the candidates for prom queen. To add insult to injury, the school refuses to read Issak's male name at graduation. Issak blogs about the hurt and humiliation he faces because of discrimination by his school administrators.

Immigration Reform: Week One is Done

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.

Federal Judge: Only Powered-Off Cell Phones Deserve Privacy Protections

A federal magistrate judge in New York recently ruled that cell phone location data deserves no protection under the Fourth Amendment and that accordingly, the government can engage in real-time location surveillance without a search warrant. In an opinion straight from the Twilight Zone, magistrate judge Gary Brown ruled two weeks ago that "cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy."

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Breaking the Addiction to Incarceration: Weekly Highlights (05/17/2013)

Fri, 05/17/2013 - 1:04pm

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.

This week, our focus will shift from legislation to an important new report from the Drug Policy Alliance, "An Exit Strategy for the Failed War on Drugs." The report is extensive—it runs 64 pages and includes 75 recommendations—and pragmatic. It doesn't call for blanket drug legalization tomorrow; instead, it proposes a gradual draw-down (to borrow the metaphor) and new approach to the same goal of minimizing drug use and abuse. Here are a few noteworthy recommendations:

  • Shift the focus of the federal drug budget from failed supply-side programs to cost-effective demand and harm reduction strategies. DPA cites the ample research which shows that reducing demand through substance-abuse treatment programming is more cost-effective than supply reduction policies. Sticking with "cost-effective" is generous, really; if your measuring stick is drug addiction rates, then supply-side spending isn't really effective, period.
  • Raise threshold amounts for what constitutes a federal drug law violation and focus resources on big cases. Stories of people serving preposterously long federal prison sentences for relatively minor drug offenses are far too common. Some federal judges will attest to sentencing hundreds of minor offenders to prison for far longer than is appropriate or effective.
  • Reform federal drug conspiracy laws. Most of the preposterously long sentences are the result of conspiracy cases; someone plays a small role in a group—say, buying small amounts of cold medicine on behalf of a methamphetamine cook—but gets sentenced according to the total amount of drug produced or sold. This recommendation should be paired with the one immediately above.
  • Expand the mandatory minimum safety valve provision. Currently, a defendant is eligible for the federal safety valve—that is, a judge is allowed to sentence him below the mandatory minimum term—if he meets five criteria, one of which is having one or zero "criminal history points." The idea is to allow judges to sentence first-time defendants to less severe sentences. The problem is that you are over the one-point limit if you've ever been convicted of a crime for which you served more than two months in jail, which could mean shoplifting or forging bad checks or marijuana possession or a variety of other petty crimes. It could also have been ten years ago. The point is that people who are relatively low-risk are nonetheless excluded from the safety valve, no matter what the judge thinks.

The other 71 policies run the gamut from policing to drug treatment to federal foreign policy; you should read them all. It won't take as long as you might expect. Reason's Mike Riggs earns a plug for the second week in a row with his thoughts on DPA's new report.

Here are some other interesting items from the past week:

  • Vermont passed a bill to decriminalize the possession of up to an ounce of marijuana, which the governor is expected to sign.
  • Minnesota has "banned the box"—that is, Minnesota employers will not be allowed to consider a job applicant's criminal history until the applicant has an interview or is offered a job. Employers are still free to not hire someone with a criminal history, but at least applicants won't simply have their applications tossed in the trash can before they've had a chance to make a strong personal case for themselves. The law will help more former prisoners find work, which will make Minnesota safer and more prosperous.
  • You can review recent activity in state legislatures to reduce prison populations, with contextual information about each state, at our new map.

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A Duty to Protect Lives

Fri, 05/17/2013 - 12:11pm

This post was originally featured on philly.com.

In 1929, Clara Bell Duvall died in Pittsburgh from complications of an illegal abortion. She left behind a grieving household - five young children, an overwhelmed husband, and her own parents were devastated by their loss. The family barely survived.

In 1960, Sharon Magee lost her mother, Mary Magee, in Philadelphia. The story of her death from an illegal abortion was plastered all over the pages of the Daily News and reverberates in the family even today.

The deaths of these women and countless others are the legacy of the dark days when abortions were illegal in Pennsylvania.

In 2009, Karnamaya Mongar, poor, unsuspecting, desperate, and pregnant, died following an abortion in a West Philadelphia clinic operated by Dr. Kermit Gosnell. Like Duvall and Magee, Mongar lacked the resources and education that could have guided her to a safe health provider.

Gosnell has now been convicted on an array of criminal charges, from three counts of first-degree murder to heading a criminal enterprise to, in the death of Mongar, involuntary manslaughter. In addition, his crimes are clearly contrary to every code of medical ethics. As a result, he faces a lifetime behind bars, with no chance of parole.

Does the fault for these crimes lie with the abortion laws of the commonwealth of Pennsylvania, or are specific individuals who failed to follow those laws to blame?

By 2009, Pennsylvania had extremely strict laws and regulations for abortion clinics - among the most stringent in the nation. Those laws required the Department of Health to inspect and license abortion clinics.

The department had received complaints about Gosnell's clinic and had been asked to investigate. Simply put, people in the Department of Health - public employees all - did not do their jobs. They failed to follow up, and failed to enforce the regulations designed to protect the safety of women. This wasn't the fault of the Supreme Court, the pro-choice movement, or Planned Parenthood. Employees of the Department of Health, for reasons we have yet to understand, neglected to enforce the law.

How have our legislators responded? Have they investigated the department that did not do its job? Held hearings? Have they tried to discover why the laws they themselves passed were not enforced? No. They have instead attempted to tar all legal abortion providers in Pennsylvania with the Gosnell brush. Under the guise of protecting women, they passed a draconian bill championed by some politicians whose real agenda is to outlaw all abortions.

A woman's right to choose to continue or terminate her pregnancy is constitutionally protected, subject only to reasonable regulation for the sake of health and safety. The new law seeks to circumvent that right by restricting access to safe and legal abortions - to an even greater extent than before. This makes about as much sense as restricting appendectomies all over the state because of one incompetent surgeon.

The new law has caused some clinics in Pennsylvania to spend hundreds of thousands of dollars for unnecessary structural changes and has forced others to close. This has already limited access and driven up costs. Will women really be protected? As abortions become harder to obtain, there are likely to be more tragedies of the kind commonly seen before 1973, not fewer.

Opposition to abortion is today a strident political force. Opponents seek to impose their views on everyone and take this personal and private decision out of the hands of a woman and her family. When politicians cave in to these demands, public-health approaches fall by the wayside and the lives, as well as the rights, of women, especially poor women, become pawns in an unrelenting political game. As a result, women are denied fundamental rights to autonomy and equality.

How many more women like Clara Bell Duvall, Mary Magee, and Karnamaya Mongar must suffer before our politicians understand that their duty is to help protect the lives and welfare of our citizens, not to promote the agenda of a vocal minority? Access to safe, legal abortion saves women's lives and preserves families.

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What the Government Says When It Says Nothing

Fri, 05/17/2013 - 10:36am

On May 8, the ACLU released a slew of government documents obtained from the FBI, U.S. Attorneys' offices around the country, and the Justice Department's Criminal Division concerning the government's access to the contents of private electronic communications. The media has seized upon one of those documents, an undated memo titled, "Guidance for the Minimization of Text Messages over Dual-Function Cellular Telephones." This memo may show that the Criminal Division is doing nothing at all to avoid reading our text messages; it may show great procedures in place to safeguard the privacy our text messages; or, likely, it may have nothing to do with either of those predictions. The public does not know because the Justice Department put a large black box over every word following the header of the 15-page memo.

While this lack of transparency is stark indeed, at least we know that the document exists. Although the media loved the visual of the full redacted memo, the bigger story is that the Criminal Division withheld a whopping 7,079 pages of records in full—that is, they have effectively drawn that large black box over 7,079 entire pages!

Last year, the ACLU sent a Freedom of Information Act (FOIA) request to these agencies seeking records regarding whether the government gets a warrant before reading people's email, text messages and other private electronic communications. The documents we did receive (and could read) show that the FBI believes it can read many emails and other electronic communications without a warrant and that different U.S. Attorneys' offices around the country seem to be applying conflicting standards to access communications content (you can see all of the documents here). Further information about the agencies' specific guidelines and practices regarding how and when they access the content of our electronic communications remain a mystery, hidden behind black boxes and withheld documents.

We had sent the same FOIA request to the IRS, and the documents we obtained showed that the IRS, too, has long taken the position that its criminal investigative agents can read emails without a warrant. However, in response to our release of those documents last month and the resulting media coverage and congressional pressure, the IRS updated its policy to state that a warrant is required for access to all emails, regardless of their age. Other agencies should follow suit.

Government openness allows the public to advocate for necessary change, as we saw in the response to the IRS documents last month. The Obama administration came into office pledging transparency, but we have found time and again that the administration has withheld far too much information from the public. The ACLU should not have to go to court to compel the government to tell the public how it operates, especially when something as important as the privacy of our sensitive electronic communications is at stake. In the case of the FBI and Justice Department, the new documents clearly show that Congress needs to reform the outdated Electronic Communications Privacy Act (ECPA) to make clear that a warrant is required for access to all electronic communications. We are not the only ones calling for ECPA reform – this week US Attorney General Eric Holder stated during a House Judiciary Committee hearing that the Justice Department would support reform legislation requiring a warrant for law enforcement access to electronic communications. It now falls to Congress to eliminate the loopholes in ECPA and protect our digital privacy.

It Is Time to Modernize Discriminatory HIV/AIDS Laws

Thu, 05/16/2013 - 1:55pm

While science has vastly advanced since the early days of the HIV/AIDS epidemic more than 30 years ago, the ways in which many criminal laws treat people living with HIV look like throwbacks to the dark days of the past when fear and misinformation about HIV and how it is transmitted were rampant.

There are presently 32 states that have criminal laws that punish people for exposing another person to HIV, even in the absence of actual HIV transmission or even a meaningful risk that transmission could occur.

If you are assuming that these laws are merely paper relics from a bygone era that have no real effect on those who are living with HIV today, guess again. Here are three illustrative cases on their very modern misuse:

In March 2010, the ACLU of Michigan filed an amicus brief in the jaw-dropping case of a man living with HIV who faced bio-terrorism charges after he allegedly bit another man during an altercation (despite the fact that HIV is not spread through saliva). Fortunately, a judge eventually threw out the bio-terrorism charges against the man.

A man living with HIV in Iowa received a 25-year sentence after he engaged in a one-time sexual encounter during which he used a condom and HIV was not transmitted. The man was charged under Iowa's law on the criminal transmission of HIV — which, despite its name, doesn't actually require transmission of HIV to occur. The man's sentence was eventually suspended, but he was nonetheless required to register as a sex offender.

And earlier this year, the ACLU, Lambda Legal, and the Center for HIV Law and Policy filed an amicus brief with the Minnesota Supreme Court in a case where a jury found that the defendant disclosed his HIV status before engaging in consensual sex – but prosecutors continue to push for criminal penalties, which, if upheld, would infringe on a host of constitutionally protected freedoms.

To address the injustice of cases like these, Reps. Barbara Lee (D-Calif.) and Ileana Ros-Lehtinen (R-Fla.) have reintroduced the REPEAL (Repeal Existing Policies that Encourage and Allow Legal) HIV Discrimination Act. This legislation would help in modernizing current criminal law approaches that target people living with HIV for felony charges and severe punishments for behavior that is otherwise legal (such as consensual sex between adults) or that poses no measurable risk of HIV transmission, or that singles out people living with HIV for harsh criminal penalties.

The need to modernize discriminatory HIV criminal laws is clear and compelling. These laws undermine HIV prevention efforts. For example, criminalizing exposure does not encourage people to disclose their HIV status to sexual partners, and most of these states do not treat the use of a condom during sexual intercourse as evidence that the risk of HIV transmission was both mitigated and not intended. More fundamentally, these laws perpetuate stigmatization and marginalization of people living with HIV.

Our criminal laws must be rooted in facts, not outdated myths used to target people living with HIV. Reps. Lee and Ros-Lehtinen deserve credit for introducing legislation that addresses this important, often overlooked, issue.

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Scholars to Senate: Prolonged and Indefinite Immigration Detention is Unconstitutional and un-American

Thu, 05/16/2013 - 11:08am

While most countries accept the return of their citizens if the United States orders them deported, several refuse to take back them back, either because of a lack of formal relations with the U.S. (Cuba, for example), or simply because of slow background check processes.

To prevent people from being held in indefinite limbo, the Supreme Court ruled in Zadvydas v. Davis (2001) that the indefinite—or potentially lifelong—detention of immigrants raised "serious" constitutional concerns and interpreted the immigration statute to authorize detention of such immigrants only where their removal is reasonably foreseeable in the future. Most of the lower courts have also extended the principles of Zadvydas to the prolonged detention of immigrants, for months or even years, while their immigration cases are being decided, including asylum seekers with no criminal records or longtime lawful permanent residents with misdemeanor crimes. The courts have overwhelmingly found detention for months or years to be likely unconstitutional in the absence of the basic process of a bond hearing to determine if someone needs to be locked up.

But Sen. Chuck Grassley(R-Iowa) must not be up on his constitutional law because last week he proposed an amendment (number 53) to the Senate's immigration reform bill requiring the indefinite detention of thousands of immigrants who cannot be deported and the prolonged detention of immigrants for as long as it takes for their cases to be decided, without the basic protection of a bond hearing.

Today, 67 leading constitutional and immigration law professors and scholars sent a letter to the Senate Judiciary Committee sounding the alarm.

The letter reads, in part:

Senator Grassley's Amendment 53 proposes precisely the type of indefinite . . . detention that the Supreme Court has found to raise constitutional concerns . . . The amendment would unconstitutionally authorize extended detention for anyone convicted of one of a broad range of crimes – including minor misdemeanors and decades-old convictions – even if DHS concedes they cannot be removed. . . . Many individuals subject to this provision would have already spent months, and in some cases years, in immigration detention prior to a final removal order.

[The amendment] would [also] create a regime under which people in deportation proceedings would be mandatorily detained for years without ever having an immigration judge, nor even a DHS employee, determine whether they pose any flight risk or risk to the community. [It] would expressly authorize prolonged mandatory detention, "without limitation" of people with a very wide range of convictions, including nonviolent misdemeanors such as petty theft or marijuana possession, as well as the prolonged detention of arriving asylum seekers with no criminal records whatsoever . . . . The amendment would authorize prolonged detention even of people who have won their cases before an immigration judge based upon factors such as hardship to U.S. citizen children, long residence in the United States, domestic violence, or fear of torture or persecution, and who are defending against government appeals, including many individuals who will ultimately win the right to remain lawfully in the United States on these grounds.

Rather than create an expensive and draconian new preventive detention system that raises serious constitutional concerns, the senators should stick with what's already in the bill: namely, real solutions that provide bond hearings to all immigrants subject to prolonged detention to ensure that people aren't locked up unnecessarily on the taxpayer's time and mechanisms to put diplomatic pressure on countries who do not want to take back their citizens.

Prolonged, indefinite, and preventive detention belongs to repressive regimes, not America, and will almost certainly be challenged in court. Grassley 53 should be rejected.

For more information about the immigration reform bill, go to: https://www.aclu.org/immigration-reform-2013

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Open Letter to the Corrections Corporation of America after 30 Years of Locking People Up for Profit

Thu, 05/16/2013 - 9:41am

What do I have to say to the Corrections Corporation of America?

After 30 years, CCA should be ashamed.

For thirty years, CCA's profits have grown because more people are behind bars. For CCA, the fact that America incarcerates more people than any other nation in the world isn't a human tragedy – it's something they celebrate, because it makes them rich.

When CCA's shareholders hold their annual meeting today in Nashville, I hope they will remember that the cost of their riches is thirty years of human rights abuses, escapes, violence, understaffing, and preventable deaths in CCA's prisons. In Mississippi alone, CCA has had two deadly prison riots in the past twelve months. And in Idaho, CCA recently admitted that their officers falsified nearly 5,000 hours of time records, billing the state for security posts that they left unfilled. After 30 years of this, you should be ashamed.

CCA is not just the first for-profit prison company in modern America – it is also the biggest, raking in a staggering $1.7 billion a year. Since CCA started out, this country has seen massive increases in overall incarceration rates. From 1970 to 2005, the U.S. prison population increased by approximately 700%. Mass incarceration has allowed CCA to profit. But for the rest of us it has broken state budgets, torn families and communities apart, and failed to promote public safety in any significant way.

On an average day, CCA locks 81,384 people in their prisons and jails. In statements for their shareholders, CCA refers to these human beings as a "revenue stream" or a "unique investment opportunity."

Many of these people are immigrants detained by the federal government – nearly half of whom are detained in for-profit prisons. While CCA may be profiting off of this, they are failing to adequately manage these prisons. Just this month, two immigration detainees committed suicide within days of each other at Eloy Detention Center, which CCA runs. Before that, according to public records the ACLU obtained in 2009, Eloy had nine known fatalities — more than any other immigration jail under contract to the federal government.

Thirty years of profiting off mass incarceration is nothing to celebrate.

Fed up with 30 years of CCA banking on human bondage? Join today's protest of CCA's annual shareholder meeting in Nashville, TN and upload a video to the YouTube channel telling CCA they have nothing to celebrate.

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Bringing Marriage to "Modern Family"

Thu, 05/16/2013 - 7:34am

You might be asking yourself: What does Modern Family have to do with an upcoming landmark Supreme Court case about the freedom to marry? Well, the ACLU launched a campaign today urging Modern Family's producers to script a wedding episode for popular gay characters Mitchell Pritchett and Cameron Tucker. The campaign comes as Americans await the Supreme Court's decisions on two important LGBT equality cases challenging the federal Defense of Marriage Act and California's Prop 8. The ACLU is direct counsel in the DOMA case, United States v. Windsor. Additionally, a stream of states have recently passed marriage equality measures.

Since 1936, the ACLU has been fighting for the rights of gay and lesbian Americans and their families. While we continue to fight with everything that we have for real-life LGBT couples and individuals, we'd like to take a moment to ask for your help in support of a fictional couple. One couple in particular, actually. A couple you have seen on your TV.

Yes, we're serious, and yes, it makes sense.

Each week, millions of Americans tune into Modern Family, one of the most popular shows on television today. For four seasons, we've gotten to know Mitchell Pritchett and Cameron Tucker; and their adopted daughter Lily. The most remarkable aspect of Mitch and Cam being in a same-sex relationship is that the there IS no remarkable aspect of their being in a same-sex relationship. They experience the same ups and downs as any other couple. Arguably, their most controversial family moment was when flower girl Lily said the f-word last year.

But there's one important thing that Cam and Mitch haven't done yet. They haven't gotten married. So we're asking ABC to let Mitch and Cam tie the knot, and we're asking for your help.

Why is it so important for this to happen? The past few years have seen an amazing groundswell of support for giving same-sex couples the freedom to marry. In the past month alone, three states have recognized that committed same-sex couples should have access to the recognition, protection, and dignity that only comes with marriage. Public opinion polls have consistently shown that a majority of Americans now support marriage for same-sex couples.

A lot of this was accomplished by voters getting to know their family members, friends, co-workers, and neighbors who are in committed same-sex partnerships. It's harder to deny these couples the same recognition and protection enjoyed by different-sex couples when you know them and know their families and see that they experience the same joys and hardships as any other family.

For many Modern Family devotees, Mitch and Cam may be the same-sex couple many Americans are most familiar with. It may seem trivial at the outset, but the role of television to advance social change should not be underestimated. From Ellen coming out in 1997 to the vice-presidentially transformative power of Will and Grace, to Mitch and Cam, TV has helped introduce many Americans to the LGBT community and inspired many LGBT Americans to come out of the closet. This added visibility has helped build the momentum that we're seeing in state legislatures, courtrooms, and the ballot box today.

Having two main characters in a wildly popular show get married would put the issue of marriage equality in living rooms across the country and generate conversations about the importance of allowing same-sex couples to marry – the kinds of conversations that we know change hearts and minds. And because it's a weekly series, the message won't go away during the closing credits. It will be back next week, and the weeks after that, and again during summer reruns. The wedding would demonstrate that marriage —with its unique recognition of love and commitment— matters. And it's a choice that should be readily available.

So help us show that the media can lead the charge on the freedom to marry. Join the campaign to get Cam and Mitch down the aisle here.

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With Historic Law, Maryland Offers Model to Address National Problem of Inequity in School Facilities

Thu, 05/16/2013 - 6:42am

There is a hopeful story being written today in Baltimore City, a story that began with an all-too-familiar plot: school buildings without sufficient heat, air conditioning, adequate lighting or drinking water—perennial barriers to learning that most children and teachers in Baltimore City Public Schools have had to deal with daily. Sadly, lack of such basic necessities plagues many urban school systems like Baltimore, where poverty reigns with over 85 percent of the students eligible for free and reduced price meals. Victims of false economy, urban school buildings continue to deteriorate because the current funding model can only support Band-Aid repairs to the crumbling buildings, as opposed to construction of new, efficient buildings.

In urban districts around the country, there is no extra money to make even the most critical repairs, much less build new schools. The children taught in these buildings have the highest incidence of childhood obesity and asthma and the greatest challenges to educational success. The problem is exacerbated because the buildings cannot support basic learning tools like computers or science labs that students need to meet core curriculum requirements. Meanwhile their peers in more affluent communities are attending new schools with the tools and technology to give them a 21st century education.

The ACLU of Maryland believes that these deficiencies run counter to our state constitution. In 1994 we filed a lawsuit on behalf of Baltimore's public school students, Bradford v. Maryland State Board of Education, arguing that Maryland's Constitution guarantees children-- particularly those most at risk due to poverty--a "thorough and efficient" education. The judge agreed with us and since then, we have been working year in and year out to make sure the state lives up to this promise to all children.

Today, the ACLU of Maryland is proud to stand with Maryland Governor Martin O'Malley as he signs the Baltimore City Public School Construction and Revitalization Act of 2013. This historic law will fund $1 billion in new and fully renovated schools for some of the poorest communities in the country, and represents the largest investment in Baltimore's school buildings in Maryland history. This new chapter is a culmination of more than a decade of work on inequitable school facilities by the ACLU of Maryland's Education Reform Project, and has been hailed as a model solution to a problem that plagues nearly every poor urban school district in the nation.

Under the model promoted by the ACLU of Maryland in our 2010 reports, "Buildings for Academic Excellence," and "A Proposal to Finance a Full Scale Modernization of Baltimore City Public School Facilities" new and existing funding streams are combined to leverage $1 billion in capital up front, using a third-party quasi-governmental authority to finance bonds and oversee construction. The law signed today will commit funds from the city, state, and school system to build or fully renovate 50+ schools over the next six years. This innovative model upends the traditional school construction funding model by building new or fully renovated schools on a compressed construction timeline, but paying for them over 30 years. After some of the worst city school facilities are addressed in the first phase, other sources of revenue will be needed to finish the full $2.4 billion construction plan.

The ACLU of Maryland pursued this successful campaign by combining research, policy proposals and analysis, organizing, legislative advocacy, and working with community and school groups in the Baltimore Education Coalition to highlight the need for a solution to an intractable problem.

This visionary solution is a smarter way to use state and local dollars. Doing the wholesale renovations will allow school districts to take advantage of existing low interest and construction costs while realizing the economies of scale that come with bulk purchasing and building. In the long run, school systems like Baltimore City will save money by replacing old, dilapidated buildings with state-of-the-art schools that are safer, healthier, and promote better learning.

While every school system has its own unique funding structures, hopefully other struggling school districts, cities, and states can learn from this innovative model and write a happier ending for their students, too.

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Congress Takes Much Needed Step Forward on Over-Criminalization

Wed, 05/15/2013 - 1:59pm

Earlier this month, a high school honors student named Kiera Wilmot was charged with felony discharge of a weapon on school property. Her crime? Creating her own science experiment.

When Kiera mixed several household chemicals together in a plastic bottle, she caused a small explosion in her school's parking lot, hurting no one and causing minimal damage. But now she faces up to ten years in prison and a felony criminal record for a crime she had no intention or desire to commit.

Kiera's story is just another victim of our country's out-of-control criminal code. Over the last 30 years, the number of federal laws on the books has doubled. Meanwhile, in the same time, the federal prison population has increased by nearly 800%, and the budget for the Federal Bureau of Prisons has ballooned to over $6 billion annually.

Fortunately, Congress wants to do something about it.

Last week, the House Judiciary committee announced the creation of a new, bipartisan task force aimed at reviewing the criminal code and developing bipartisan proposals for criminal justice reform. The task force, led by Rep. Jim Sensenbrenner (R-Wis.) and Rep. Bobby Scott (D-Va.), will also comb through the code and identify unnecessary and ineffective criminal statutes for elimination.

With limited financial resources , soaring national debt, and one in six Americans below the poverty line, shouldn't we find a better use for the $6 billion in federal tax dollars than locking up the largely minority, non-violent men who fill our prisons? Shouldn't our police and prosecutors be able to focus on serious criminals, instead of kids like Kiera? Shouldn't our judges be allowed to consider the circumstances and facts of each case?

Sending people to prison should be the option of last resort, not first. This task force is a promising step toward real change, and the ACLU will continue to advocate for a criminal justice system that keeps communities safe and treats people fairly (regardless of the color of their skin or the size of their bank account), and uses our taxpayer dollars and public resources wisely. Stay tuned.

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In Disturbing Trend, Kansas School the Latest to Punish Student for Harmless Tweet

Wed, 05/15/2013 - 11:46am

In Kansas, joking about sports can be hazardous to your high school graduation. Wesley Teague, the senior class president at Heights High School in Wichita, Kansas, found this out the hard way. In a gently mocking 48-character Twitter post, Wesley wrote:

Heights U' is equivalent to WSU's football team.

A seemingly innocent message, but you wouldn't know it from the school's reaction. Administrators suspended Wesley for the rest of the school year, stripped him of his post as senior class president, cancelled his scheduled convocation speech and banned him from most graduation-related events. (The school has since decided that Wesley will be able to attend graduation ceremonies, but will not be allowed to speak).

Making sense of the school's bizarrely inappropriate reaction to an innocuous sports joke requires some background. Desiring to be taken more seriously as athletes, it seems, some Heights High School underclassmen took to calling their school "Heights U." By contrast, Wichita State University (WSU) has not had a football team since the 1980s. Comparing his high school's unofficial nickname to a non-existent football program apparently constituted an insult (however oblique) so grave as to warrant throwing Wesley Teague out of school.

Wesley's tweet was factually correct. But while school administrators may feel empowered to act as 24-hour speech police—tracking down and punishing speech they deem objectionable—the Bill of Rights takes a different view.

Forty years ago, in the face of social tumult and at the height of the Vietnam War, the Supreme Court forcefully affirmed the First Amendment rights of students. "Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance," the Court wrote in Tinker v. Des Moines, "[b]ut our Constitution says we must take this risk." There's no question that school officials may regulate students' in-school speech when hard evidence indicates that the speech is reasonably likely to cause a substantial disturbance in the school environment. But students have the right to speak their minds--even when it comes to the school football program--and they should be able to do without fear that they will be punished for the inappropriate reactions of others.

What happened to Wesley is not an isolated incident. It is another recent example of school administrators removing students from the classroom because of harmless student expression. Last month, high school junior Kyron Birdine found himself suspended for four days for using Twitter to mock a mandatory-but-ungraded standardized test. Two weeks ago, a science experiment that produced smoke—but no harm or injury of any kind—nevertheless resulted in the expulsion and arrest of model high school student Kiera Wilmot, who is now facing felony charges. All of these students are black, which is unfortunately not a surprise. Zero-tolerance suspension policies are inflicted on students of color at a rate vastly disproportionate to their numbers.

Overwhelming evidence shows that this breed of zero tolerance policies has failed. Worse than failed; Backfired. In addition to raising serious First Amendment concerns, the rush to suspend or arrest students like Wesley, Kyron and Kiera for minor classroom infractions produces devastating consequences for the students involved and often serves as the first step on the school-to-prison pipeline.

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War Is Not The Answer ~ Religious Communities Must Stop Blessing War & Violence