ACLU National

Today the ACLU and a wide variety of other organizations sent a short letter to the Hill describing our concerns with the E-Verify program. These types of letters aren't unusual – in DC groups frequently try to showcase the breadth of support or opposition to particular programs. But what is surprising is how many groups that have little or nothing to do with immigration are worried about E-Verify.

Ok, take a deep breath. In addition to supporters of immigration reform, the concerns over E-Verify are shared by: libertarians and librarians; advocates for workers' rights and small business owners; those worried about government overreaching, government overspending, and income inequality; groups dedicated to limiting money in politics; and those protecting free speech, protecting civil rights, and protecting home schooling. And let's not forget, of course, lots and lots and lots of consumer and privacy groups. It's quite a list!

But the simple fact is that lots of people – no matter how they feel about the specifics of immigration reform – want to do it right. That means without an E-Verify system that we describe in the letter as "irredeemably flawed." What unites these groups?

A ton:

• E-Verify imposes immigration enforcement costs on Americans. System errors will make hundreds of thousands of legal workers visit federal offices to exercise their right to work.
• E-Verify errors disproportionately impact minority groups: including young workers, married women, naturalized citizens, legal immigrants, and individuals with multiple surnames, including many Hispanics.
• E-Verify conscripts employers to act as immigration agents. According to Bloomberg Government, small businesses will spend $2.6 billion every year to implement the system.
• E-Verify will exacerbate identity theft. E-Verify will increase demand for stolen identities and enable thieves to use its database to determine the validity of a Social Security number.
• E-Verify creates a de facto national ID system. Since the system permits identity verification, it can be used to monitor access to any public or private service based on immigration status or any other criteria.

Longtime readers of this blog know we've been ringing the alarm bell on E-Verify and national ID for years. But since it's in the news and part of every immigration proposal, we know we have our work cut out for us and we welcome it. We're going to work arm-in-arm with our disparate group of friends and allies to see that these concerns are addressed because immigration reform shouldn't result in injustice or privacy harms to any American or legal resident.

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Coming on the heels of a letter from 37 U.S. senators, a coalition of national civil rights, religious, professional, labor, civic and educational organizations sent a letter to President Obama on Wednesday urging him to issue a long-sought executive order to prohibit discrimination on the basis of sexual orientation and gender identity by federal contractors. The letter, which was signed by dozens of organizations including the ACLU, AFL-CIO, The Leadership Conference on Civil and Human Rights and the National Council of La Raza, recognizes President Obama's strong record of accomplishment for the LGBT community, and concludes:

Your record of accomplishment from the first term demonstrates your strong commitment to the principle that all Americans deserve a fair shot to succeed regardless of who they are or whom they love. We urge you to begin the second term by taking strong executive action to prevent irrational workplace discrimination against LGBT Americans.

The ACLU has long prioritized this executive order, and included it as the top first 100 day civil liberties recommendation for President Obama's second term. It represents the single most important step that President Obama could take over the next four years on his own to eradicate LGBT discrimination in America's workplaces. It has been estimated that it would cover a fifth of the entire U.S. labor force, and, with federal contractors employing people in all 50 states, would ensure that there were at least some workplaces in every state with legally binding protections against discrimination on the basis of sexual orientation or gender identity.

All American workers who stand side-by-side at the workplace and contribute with equal measure in their jobs deserve to also stand on the same equal footing under the law. This executive order would build on a tradition of non-discrimination with federal funds first made by President Roosevelt more than 70 years ago when he signed an executive order integrating the nation's shipyards and other worksites run by defense contractors. As the chorus of voices in support of the executive order – in Congress, in the media and among national advocacy organizations – continues to grow, the time for action from President Obama is now.

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Last Thursday, the House Intelligence Committee held a hearing that focused on the Cyber Intelligence Sharing and Protection Act (CISPA)—the reintroduced privacy-busting cybersecurity bill from last year that would allow the private sector to share Americans' private information with the government, including agencies within the Department of Defense (DoD), such as the National Security Agency (NSA).

Despite failing to include a single privacy expert, the hearing returned to privacy and civil liberties issues repeatedly. Interestingly, corporate representatives—perhaps to the surprise of CISPA's sponsors—said repeatedly that the private sector generally does not need to share Americans' personally identifiable information (PII) with the government to advance cybersecurity. For example, Rep. Mike Thompson, D-Calif., questioned a witnesses on how to amend CISPA to protect PII. The witness, Paul Smocer from the Financial Services Roundtable, replied that "the kind of information we're talking about sharing here seldom, if ever, actually does contain any private information." He also added that he'd be "willing to work with" Thompson to improve CISPA's privacy protections.

Rep. Adam Schiff, D-Calif., then followed up with similar privacy concerns, asking whether it would be an "insurmountable burden for the private sector to have to take reasonable steps to minimize [PII]." Smocer again said that "there is very little private data, PII, being exchanged today in the threat information world," and that he didn't "think it would be an issue to make sure that we're doing it the right way." Ken DeFontes, president of Baltimore Gas and Electric, added "I think it's an absolute necessity." And John Engler, president of the Business Roundtable, echoed their sentiments, saying "I think it's exactly fine."

Despite this, the bill's sponsors, Reps. Rogers, R-Mich., and Ruppersberger, D-Md., crafted CISPA to immunize companies from liability for sharing private information like internet records, communications content, and identifying information. The bill sponsors also tried to establish that the government, and not the private sector, is best positioned to anonymize data—but the witnesses would not change their answers. Smocer said that companies are in the best position to protect customer data, that the added cost wouldn't be a deterrent, and reminded everyone how infrequently PII needs to be shared in the first place. Kevin Mandia, the panelist representing the cybersecurity industry, enthusiastically agreed with Smocer, stating that "in 20 years of doing cybersecurity…[he's] never seen a package of threat intelligence that's actionable that also includes [PII]."

Rogers and Ruppersberger argue their bill strongly protects privacy, assuring everyone that the private sector will just be sharing 1's and 0's—no PII. And industry is now on the record stating that companies do not normally need to share PII with the government. This raises the question: If sharing this information is so unnecessary to the cybersecurity mission, why not just explicitly build that protection into the bill?

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Last June I wrote about a police officer whose driver's license record was repeatedly accessed by a state-run database without proper authorization. She is an attractive woman and her fellow officers were treating her record like a Facebook page. She was stalked, harassed and eventually forced to leave town.

Details of a tentative settlement have recently been reported, and Minnesota is now realizing that - in addition to the emotional stress suffered by victims of these kinds of abuse - there are serious financial costs to weak privacy protections.

The officer sued a number of Minnesota cities and counties as well as the Department of Public Safety (DPS). A recent article in Bloomberg's Privacy Law Watch (behind a pay wall) reported that thus far, the tentative settlement in the dispute would cost the defending jurisdictions over $1 million . St. Paul, alone, has agreed to pay a hefty $385,000.

The settlement also requires strict privacy safeguards to assure future database searches have legitimate law-enforcement purposes. Searches will be audited every month with a focus on the top 50 law enforcement users, as well as the top 25 targets, to determine if the searches were performed for legitimate law-enforcement purposes. Check boxes will also be required to pop up on video screens whenever the license database is accessed making officers verify that they are using the database for approved purposes.

This case should serve as a stark warning to other states. While government databases are necessary, their administration can't be taken lightly and personal information must be strongly protected. Minnesota's new rules are a good first step; but for many databases, the best protections come from tight data retention rules. Only data that is absolutely necessary should be collected, and the information should be held only as long as necessary. If Minnesota had proper protections in place from the start, these costs may have been avoided.

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by Raul Pinto, ACLU of North Carolina

In a front-page story published in today’s USA Today, the results of our investigation of the comingling of local law enforcement agencies and U.S. Immigration and Customs Enforcement (“ICE”) in the southeast were made public.  During a “seatbelt” checkpoint conducted last May by the Jackson County, North Carolina Sheriff’s Office, ICE implemented one of its many initiatives to ensure that the number of criminal deportations  achieved the prior year’s level.  In simpler terms: a quota.

Why were ICE officers concerned with enforcing local seatbelt laws, you may be wondering? They weren’t.  They were there to interrogate drivers about their immigration status.   Many U.S. citizens and lawful residents were detained for up to 45 minutes on their way to work to prove their immigration status, and fifteen aspiring citizens were taken into ICE custody that morning.

The ACLU of North Carolina launched an investigation into this checkpoint, which included a Freedom of Information Act request to ICE.  The findings were disturbing.  Along with implementing a policy of participating in checkpoints throughout the southeast, ICE also proposed rummaging through North Carolina Division of Motor Vehicles records for immigrants who applied for a driver’s license but could not meet the immigration requirements imposed by a 2006 state law.  Another ICE initiative was to deem individuals with no operator’s license as criminal aliens.

This system breeds violations of constitutional rights, and promotes racial profiling by ICE officers and local law enforcement agencies.  The former supervisor of ICE field offices, David Venturella, was quoted in today’s USA Today article as saying that many of John Morton’s aides seemed to think that their careers depended on the number of deportations going up. Accounts of how the checkpoint initiative was implemented by the Jackson County Sheriff’s Office suggest that sheriff’s deputies stopped only Latino drivers during the checkpoint and that drivers who were wearing their seatbelts and hold valid North Carolina driver’s licenses were pulled over to be interrogated by ICE.

These tactics, and racial profiling in particular, violate the right guaranteed by our Constitution to be treated equally under the law.  Racial profiling is ineffective, wasteful, and unconstitutional law enforcement that regularly deprives people of their freedom without due process.  ICE’s practices cast a dragnet where law-abiding, hard-working, contributing members of our communities are caught, including U.S. citizens and lawful residents.  They also highlight the need for the federal government to take affirmative steps to make sure this does not happen again, as well as the necessity of fixing our broken immigration system (including enforcement).

As President Obama and Congress take up immigration reform, the ACLU has developed a framework and urges policymakers to promote its priorities in any proposals. The framework is available here.

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Today, the U.S. has the highest incarceration rate of any country in the world. With over 2.3 million men and women living behind bars, our imprisonment rate is the highest it’s ever been in U.S. history. And yet, our criminal justice system has failed on every count: public safety, fairness and cost-effectiveness. Across the country, the criminal justice reform conversation is heating up. Each week, we feature 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.

Two conservative states consider reducing sentences:

Georgia’s governor Nathan Deal has pledged his support for HB 349, which would allow judges to issue sentences lower than the mandatory minimum for some defendants charged with drug trafficking and other serious felonies. The bill is limited by a provision excluding persons with prior felony convictions, which could include actions as minor as drug possession or a conviction that occurred many years prior. You can find full text of the bill here.

In Texas, state lawmakers have proposed bills that would reclassify some minor crimes, such as low-level marijuana possession and prostitution, as Class C misdemeanors, which do not carry a jail or prison sentence. Last summer, the Texas Public Policy Foundation noted that reclassifying minor crimes would improve the quality of indigent defense by reducing public defenders’ caseloads.

Meanwhile, in New York, Mayor Bloomberg voiced his support for a similar measure: “Commissioner Kelly and I support Governor Cuomo’s proposal to make possession of small amounts of marijuana a violation, rather than a misdemeanor and we’ll work to help him pass it this year.” In the meantime, he announced that people arrested for possessing small quantities of marijuana will no longer be held overnight in jail, but will instead receive a desk appearance ticket for their court date.

And another state comes to grip with its overcrowding problem:

Nebraska’s prisons are at 145 percent of capacity; though they were built to house up to 3,175 prisoners, they’re currently housing more than 4,600. In order to improve safety at the facilities and avoid a lawsuit, state lawmakers are considering ways to solve the problem. The expensive choice is to build a new prison. But some state senators see another solution: "We have too many low-grade offenders in prison right now that are not a threat to themselves or others that should be in community-based services back in their communities," said Sen. Brad Ashford. "I need to know why we can't expedite that process."

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It should have been a softball question.

During a Google+ Hangout yesterday, conservative commentator Lee Doren asked President Obama whether he claims the authority to kill a U.S. citizen suspected of being associated with al Qaeda or associated forces on U.S. soil. Notice the question was restricted to only a U.S. citizen on U.S. soil (our concerns are, of course, broader and apply to the White House’s illegitimate claim of authority to kill people it unilaterally deems a threat, even if they are far from any battlefield, abroad).

What should have been a simple “no,” turned into this:

Well first of all, there has never been a drone used on an American citizen on American soil. We respect and have a whole bunch of safeguards in terms of how we conduct counterterrorism operations outside of the United States. The rules outside of the United States are going to be different than the rules inside the United States, in part because our capacity, for example, to capture a terrorist inside the United States is very different than in the foothills or mountains of Afghanistan and Pakistan. What I think is absolutely true is that it is not sufficient for citizens to just take my word for it that we're doing the right thing.

That doesn’t sound like a no. And just so people don’t get the impression that this was an off-the-cuff remark, when President Obama’s nominee for CIA director, John Brennan, was asked in a written follow-up to his February 7 confirmation hearing whether the White House could carry out a drone strike inside the U.S., he replied:  “This Administration has not carried out drone strikes inside the United States and has no intention of doing so. “ 

Sen. Rand Paul, R-Ky., isn’t satisfied with these answers.  He has raised questions about targeting non-citizens in the U.S. and threatened to hold up Brennan’s confirmation if he doesn’t get some answers.

The president could easily end all this speculation.  All he needs to do is publicly disclose the 11 Office of Legal Counsel opinions that set out his administration’s claimed authority to extrajudicially kill American citizens and noncitizens. So far he has shared four of the 11 opinions with members of the Senate Intelligence Committee. That’s not good enough. Everyone has a right to know who the government claims it can kill in a program that has fast become toxic at home and abroad.

During his Google+ appearance, the president said, “This is the most transparent administration in history.”

Repeating something over and over again doesn’t make it true. President Obama must disclose the legal opinions on the killing program. Secret rules for killing people, citizens and non-citizens alike, are neither compatible with transparency nor the rule of law, especially when the administration claims the authority to kill people far from any battlefield.

Even the president’s most loyal followers should agree, because it won’t be the Obama White House forever.

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In December 2011, the ACLU released FBI documents obtained through the Freedom of Information Act, which showed that San Francisco FBI agents were exploiting community outreach programs for intelligence-gathering purposes. Now it appears FBI agents in Minneapolis have adopted this ruse, and may be using it in even more sinister ways.

As the nation’s predominant federal law enforcement agency, the FBI has a duty to communicate with the public—both to provide information about FBI activities and to hear grievances—so it can address specific community concerns. The FBI’s community outreach program, organized under its Office of Public Affairs, was established to fulfill this obligation, and much of its work is laudable. But the FBI documents we received show that at least since 2005, in an increasingly formal and systematic process that lasted  well into 2011, the FBI used community outreach programs to collect information about First Amendment-protected activity for intelligence and investigative purposes.

In 2008, the FBI Directorate of Intelligence formalized the intersection of community outreach and intelligence gathering by creating its own “community outreach” files under its Domain Management program (identified by an 800-series case file number), to “enhance the . . . network of contacts with community leaders . . . who can assist the FBI and fellow federal, state and local law enforcement and intelligence agencies in combating terrorism.” Under this program, intelligence agents either make their own community outreach presentations, as documented in this 2008 memo, or accompany FBI community outreach specialists to meetings to collect intelligence, as documented in this heavily-redacted 2009 memo. The San Francisco FBI also had a “mosque outreach” program that it exploited in similar ways.

In response the FBI issued a press statement quoted in the Los Angeles Times that defended the collection as “within the scope of an authorized law enforcement activity,” but also suggested that new rules would prevent repetition. “…Since that time, the FBI has formalized its community relations program to emphasize a greater distinction between outreach and operational activities.” The new rules appear to be an improvement, but only if FBI agents follow them.

A new report from the Council on American-Islamic Relations (CAIR), the largest American-Muslim civil rights organization, indicates they aren’t. On January 30, 2013, CAIR issued a press release welcoming the initiation of an internal FBI investigation into its allegation that two FBI agents threatened and harassed a Somali immigrant in Minnesota in an attempt to coerce him into becoming an informant. The happiness didn’t last long, however.

According to a new complaint filed by CAIR, days later an FBI agent arrived unannounced at the doorstep of its Minneapolis chapter director, Lori Saroya. When later contacted by a CAIR representative, the agent claimed that the purpose of the visit was community outreach.

Suspicious—based on the ACLU’s reporting on the FBI’s misuse of community outreach and the absence of reports that other homes in the community were visited—a CAIR attorney called the agent back. Here’s how CAIR described the interaction:

“When CAIR-MN's [attorney] later called [the agent] and asked if he was assigned to the division’s community outreach program, [the agent] responded that he was not and stated that he is a field law enforcement agent who wanted to speak to a member of Ms. Saroya's household for a ‘meet and greet.”

So once again, it appears FBI agents are improperly exploiting the good will established through its community outreach programs as a method of gaining access to community members for investigative purposes. Trained FBI investigators know that showing up unannounced at someone’s home is intimidating, and they could have contacted Ms. Saroya by telephone or at her office to set up an appointment if the true purpose was a simple “meet and greet” with a member of her household. Coming as it did days after CAIR’s success in triggering an investigation into Minneapolis FBI activity, Ms. Saroya requested Attorney General Eric Holder to investigate whether the visit was an “attempt to intimidate a highly-regarded community leader” after the field office received  “negative media attention” as a result of CAIR’s advocacy.  We agree that this matter deserves Justice Department scrutiny. The ACLU has previously called on the Department of Justice Inspector General to investigate the FBI’s illegal information-collection practices at community events in its San Francisco and Sacramento divisions.

For others who are approached by FBI agents claiming to be engaged in a community outreach effort, this episode provides a good example of how to respond. First, seek legal representation because any statements made to FBI agents, even community outreach agents, may be used against you.  And second, be sure your lawyer asks whether the person is assigned to the community outreach program. The agent should be able to provide documentation to verify his role, and should be willing to explain the information collection regulations that will apply to any conversation. Such formality might seem unnecessary, but unfortunately, the FBI already undermined the trust in its community outreach programs. The only way it can recover this trust is for the Justice Department and the Inspector General to conduct full investigations of these FBI practices. Most importantly, the FBI must come clean and engage with the public in a forthright and transparent manner.

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We’re currently seeing an unprecedented surge of activity in state legislatures across the country aimed at regulating domestic surveillance drones. (My colleagues Jay Stanley and Catherine Crump have this recent piece detailing the trend.)  Working closely with our lobbyists in state capitols around the country, we have been tracking this activity and working hard to make sure these privacy-protective bills become law. The chart below shows the current status of state legislation as we understand it. We will update this as we receive new information.

With the exceptions noted below, almost all of the bills we’re seeing require law enforcement to get a probable cause warrant before using a drone in an investigation.  If you see your state listed below (unless you live in Arizona), call your legislators and urge them to support privacy-protective drones legislation.

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State

Status

Notes

Arizona Introduced Only protects U.S. citizens; includes carve-outs for drug crimes, human smuggling California Introduced   Florida Senate proposal has passed several committees   Idaho Introduced   Illinois Introduced   Maine Introduced   Massachusetts Introduced   Michigan   Bill introduction expected within days Missouri Introduced   Montana Passed Senate   Nebraska Introduced   New Hampshire Introduced House hearing held 2/19 North Dakota Introduced   Oklahoma Introduced   Oregon Introduced   Pennsylvania Introduced   South Carolina Introduced   Tennessee Introduced   Texas Introduced   Virginia Passed Senate and House, needs to be re-passed by each house, then signed by governor Two-year moratorium on drone deployment Washington Introduced  

FOR IMMEDIATE RELEASE
CONTACT: media@dcaclu.org

WASHINGTON – A new report from the Congressional Research Service (CRS) attributes staggering growth in the federal prison population over the last 30 years in part to failed sentencing and correctional policies. The ACLU, a longtime advocate for significantly decreasing the federal prison population, supports some of the report’s recommendations, but not all—including transferring prisoners to private prisons, which are not subject to public scrutiny and accountability. The ACLU released a report in 2011 on the successful efforts of several states to reduce their prison populations and reform our country’s broken criminal justice system.

“States are truly leading the charge on this and leaving the federal government behind,” said Vanita Gupta, ACLU Deputy Legal Director. “While states are making smart reforms to their own ineffective and costly criminal justice systems, the federal criminal justice system is more bloated than ever. If we are going to safely end our addiction to incarceration, the feds should draw inspiration from the states and push for data-driven criminal justice policies that will focus on public safety and reduce the number of people behind bars.”

According to the report, the increase is due largely to changes in federal sentencing and correctional policy, including mandatory minimum sentences and the elimination of federal parole. The result has been a “historically unprecedented” increase that has impacted hundreds of thousands of lives and cost billions of dollars:

• From 1980 to 2012, the federal prison population has ballooned from 25,000 to 219,000, a 790% increase.
• Population has increased by approximately 6,100 inmates each year since 1980. In the 50 years before that, the population increased by 12,000 total.
• From 2000 to 2011, appropriations for the Bureau of Prisons increased by more than $2.7 billion.

“This report details many reasons why we need criminal law reform in this country,” said Jesselyn McCurdy, ACLU Senior Legislative Counsel. “Some of the CRS recommendations, such as building more prisons or contracting with more private prisons, only serve as band-aid solutions to addressing the unsustainable federal prison population. Other proposals, such as reducing mandatory minimums, repealing redundant federal crimes, increasing good time credit and alternatives to prison are answers that will safely result in long term reductions.”

Yesterday, the ACLU joined one billion people from around the world in taking a stand against violence through our participation in V-Day, a global activist movement to end violence against women and girls.

In the United States, gender-based violence is often viewed as an issue of concern for a small segment of the population, or as something that only affects poor women or women in conflict zones in far-flung corners of the globe.

While it is important to recognize that poverty, war and other factors like race and caste-based discrimination compound and contribute to gender-based violence, it exists in many forms and ultimately stems from discrimination and inequality. This is, at its root, an equality issue, and one that affects people from diverse socioeconomic and ethnic backgrounds.

ACLU staffers Selene Kay, Emily Carter and Ramya Sekaran at the One Billion Rising: Rising on the Brooklyn Bridge event in NYC. On Feb. 14, women from around the globe pledged to rise up against the atrocities committed against women worldwide.

The late UN diplomat and humanitarian Sergio Vieira de Mello put it best in April 2003:“There must be no impunity for gender-based violence. Let me be clear: What we are talking about is not a side issue. It is not a special interest group of concern to only a few….Violence against women concerns not only women, but above all the rest of us.”

This year, we are joining the global campaign One Billion Rising by joining the “Rising” on the Brooklyn Bridge to show our solidarity across borders and to demonstrate that we refuse to accept violence against women and girls as a given. Above all, we are rising to send a message to our lawmakers that more must be done to end violence against women and girls in our homes, schools, and communities.

Women in the United States face alarmingly high levels of gender-based harassment and violence. Nearly one in five women is raped at some point in their lives, and more than one in three women has experienced violence perpetrated by an intimate partner. Discriminatory treatment by law enforcement exacerbates the trauma these women experience and halts the process of justice.

The consequences of this crisis are far reaching. Violence against women is a serious criminal, public health, economic and social issue that has detrimental effects on survivors’ physical and mental health and productivity at work and school. Violence against women is also a major contributing factor to poverty and homelessness and should be an issue of concern for all Americans regardless of gender.

We as citizens must do the work of changing hearts and minds. The One Billion Rising campaign is an effort to do just that, but institutional barriers impede progress, and the government must play a key role in proactively preventing and responding to this epidemic.

The ACLU has set forth specific recommendations for the President’s second term with respect to women’s rights. These include enforcement of fair housing for domestic violence victims, providing guidance on gender-biased policing of domestic and sexual violence, drawing on the Department of Justice’s recent investigations into the issue, implementing the Inter-American Commission on Human Rights’ domestic violence recommendations and facilitating disability benefits for veterans based on military sexual assault.

On a local level, the New York Civil Liberties Union is urging Assembly Speaker Sheldon Silver, and State Senate leaders Jeffrey Klein and Dean Skelos to adopt and implement the Women’s Equality Agenda, groundbreaking proposed legislation that would break down barriers to New York women’s full and equal participation in society. NYCLU is asking New Yorkers to sign a petition in support of this agenda.

Activists are doing their part in the fight to end violence against women. And today, we are asking our lawmakers once again: what will you do to ensure that every American can live free from discrimination and violence? The time to rise and take action is now.

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Yes, law enforcement drones are coming, but if Rep. Ted Poe, R-Texas, has his way they won’t leave the ground without a judge okaying it first.

Yesterday, Poe introduced the Preserving American Privacy Act to ensure government, particularly law enforcement, use of drones will not violate the Constitution. Before police can launch a drone to search a non-public area, they will have to get a warrant based upon probable cause--the constitutional standard. For public spaces the standard will be reasonable suspicion of criminal activity as well as a reasonable probability that the drone will capture evidence of that criminal activity. Once the order is executed, the police will have 10 days to serve a copy of the warrant to the suspects under surveillance, although the bill allows judges to delay notification if it will jeopardize an ongoing criminal or national security investigation. If government entities violate the public trust and fly drones outside the law, the attorney general can order the Secretary of Transportation to revoke their license.

The ACLU supports the bill and the regulatory framework it’s trying to establish.

To be clear, at the ACLU we understand the incredible promise drones offer to entrepreneurs, farmers, first responders, scientists and professions we can’t even dream of yet. Drones may be deployed to safeguard protesters’ civil liberties. That’s why Poe’s legislation is so important. It creates clear boundaries so that the technology’s positive potential can be explored free of the worry that drones will be used against us in dystopic ways. Powerful technologies need equally powerful constraints, especially when government is the key customer.

“This bill sets clear guidelines, protects individual privacy and informs peace officers so they will know what they can do and what they cannot do under the law,” Poe said. “Nobody should be able to use drones for whatever purpose they want. This bill will make it clear for what purpose law enforcement and citizens and businesses can use drones.”

Over the next decade, an estimated $11.3 billion will be spent on drones. That means drones you can’t even imagine will be buzzing and hovering around. They may even deliver you tacos. But as surveillance technologies increase in power and shrink in size, the potential for serious abuse is omnipresent. The possibility of an insect-like drone silently suspended outside someone’s window is no longer sci-fi, it is now just science.

“Just because the government has the technology to look into somebody’s yard doesn’t give it the constitutional right to do so,” Poe said on the House floor yesterday, before introducing his bill. “And that’s just the way it is.”

The law often lags far behind technological innovation. It’s good to see members of Congress sprinting to close the gap.

Today, 37 members of the U.S. Senate – led by Senator Jeff Merkley (D-Ore.) – sent a letter to the White House urging President Obama to issue an executive order to prohibit discrimination on the basis of sexual orientation and gender identity by federal contractors. The senators, all of whom are supporters of the long sought Employment Non-Discrimination Act (ENDA), rightly describe the executive order as a "critical step that you can take today toward ending discrimination in the workplace."

In writing about the senators' letter for The Washington Post, Greg Sargent took note of the "enormous" significance of the proposed executive order, which would be yet another landmark milestone along the road "towards making the ideal of full equality before the law a reality."

The ACLU included the executive order as the top first 100 day civil liberties recommendations for President Obama's second term. It is the single most important step that President Obama could take over the next four years on his own to eradicate LGBT discrimination in America's workplaces. It has been estimated that it would cover a fifth of the entire U.S. labor force, and, with federal contractors employing people in all 50 states, would ensure that there were at least some workplaces in every state with legally binding protections against discrimination on the basis of sexual orientation or gender identity.

All American workers who stand side-by-side at the workplace and contribute with equal measure in their jobs deserve to also stand on the same equal footing under the law. This executive order would represent a critical step forward for this most basic standard of workplace fairness. As the chorus of voices in support of the executive order continues to grow, the time for action from President Obama is now.

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On any given day, more than 15,000 federal prisoners are in "the hole."

With a population of over 215,000 prisoners, the Federal Bureau of Prisons is the nation's largest prison system. At a Congressional hearing chaired by Sen. Dick Durbin (D-Il) last summer, Bureau Director Charles Samuels said that the Bureau holds about 7 percent of its population in solitary confinement at any given time. That's a shockingly high proportion. Many states have a much smaller percentage of prisoners in solitary, even though state prisoners are far more likely than federal prisoners to be serving time for a violent offense.

Hopefully, we'll find out why. On Feb. 4, Durbin announced that the Bureau has agreed to a comprehensive and independent assessment of its use of solitary confinement. This is welcome news -- and long overdue.

We don't yet know much about the assessment, except that it will be conducted through the National Institute of Corrections, a division of the U.S. Department of Justice. Here are some critical areas the assessment needs to cover:

Do they all really need to be in solitary? A comprehensive look at who is in solitary and why is crucial. Solitary confinement tends to be a one-way ticket – it's easy to get in but very hard to get out, so the numbers tend to creep ever upward. The assessment should look at each prisoner in solitary and ask if prison security really requires that he or she be there. Such reviews in states like Mississippi and Colorado have led to significant decreases in the solitary confinement population, saving millions of taxpayer dollars.

Why are the mentally ill in solitary? People with mental illness are grossly overrepresented in solitary confinement. Unable to conform their behavior to prison rules, many people with preexisting mental illness end up in solitary. Other prisoners are healthy when they enter solitary but develop mental illness as a result of the extreme social isolation and sensory deprivation they experience there.

Either way, people with mental illness suffer terribly in solitary, often leading to self-mutilation and even suicide. Solitary is so predictably harmful to this population that the American Psychiatric Association recently issued a policy statement opposing solitary confinement of persons with mental illness, and several courts have ruled that it violates the Constitution's prohibition on cruel and unusual punishment.

The Bureau claims that it excludes prisoners with mental illness from its supermax prison in Florence, Colorado, but a recent lawsuit has cast serious doubt on that claim, and besides, the Florence prison is only one of many that hold prisoners in solitary. The review should determine whether the Bureau has effective procedures to exclude the mentally ill from solitary confinement. If it doesn't, implementing such procedures must be a top priority for reform.

What are the costs and benefits? Solitary confinement is extraordinarily expensive. Illinois recently closed its only supermax prison in part because it cost more than $60,000 a year for each prisoner housed there – three times the state's average cost per prisoner. And it's far from clear that these massive expenditures yield any benefits. Some studies show that use of solitary confinement actually makes prisons less safe. When Mississippi reduced its use of solitary confinement, prison violence plummeted. There's evidence that prisoners who spend time in solitary actually have higher recidivism rates than those who don't. The assessment should take a hard look at the costs and benefits of the Bureau's use of solitary confinement.

For too long, basic facts about the Bureau's use of solitary confinement have been hidden from public view. The assessment announced last week is an important victory for transparency and a critical first step toward reform. Based on the results of similar reviews in state prison systems, there's reason to hope that it will lead the Bureau to significantly curtail its use of this draconian, inhumane, and expensive practice.

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Like many Americans who watched President Obama's State of the Union address, I was moved by Desiline Victor, the 102 year-old African American woman who was forced to endure a six hour wait in order to vote in the 2012 presidential election. It is outrageous that anyone, let alone a woman of her age, should be subject to such a trial in order to exercise her most fundamental right as an American. Her determination and tenacity to cast her ballot was inspiring.

Hearing her story, I was reminded of my own 93-year old mother who cannot remember what she had for lunch five minutes after eating but who, months before the election, reminded me repeatedly to take the steps necessary to make sure that she could vote. Her insistence took me back to my childhood, when my parents and other African Americans in my community spoke about voting as both a duty and a right that was sacred.

It is no mystery why they believed voting was so important. Growing up in the south, they knew the extraordinary lengths taken to prevent blacks from participating in the democratic process. Poll taxes, outright refusals to register or intelligence tests—these were all sinister strategies used to deny blacks access to the ballot box.

As we honor Black History Month with an African American president in the White House, it is tempting to celebrate the work of the civil rights champions and the passage of the Voting Rights Act as relics of an era that was both the worst and best of times in our history. We are right to recognize the work of those brave and determined individuals who brought us closer to attaining the full promise of our constitutional rights, but we are dangerously mistaken if we regard efforts to disenfranchise voters on the basis of race as historical artifacts.

As we've seen over the last few years in states across the country, efforts to suppress the vote persist, and although the tactics have changed, the goal of disenfranchisement remains the same. After record minority voter turnout and registration in 2008, cuts to early voting, ID requirements and restrictions to registration were introduced in legislatures nationwide. Many of these states attempting to suppress the vote have long histories of discrimination at the polls. Fortunately, the Voting Rights Act holds these states accountable for any discriminatory voting practices by requiring them to submit any new voting laws or changes to the Department of Justice for approval, or "pre-clearance." Without this critical safeguard in place, millions of voters could have been denied access to the polls last November.

The ACLU will be at the Supreme Court later this month fighting to uphold the Voting Rights Act in our case, Shelby County v Holder. Although it is important to remember the past and celebrate the strides we've made, we must stand vigilant to protect the future of voting rights in America. The need to secure safeguards for our most fundamental right is still too much a part of our present to consign it to our past.

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WASHINGTON – The first bipartisan legislation to regulate the government use of unmanned drones in the United States was introduced in the House yesterday. The American Civil Liberties Union supports the bill, which is sponsored by Rep. Ted Poe, R-Texas, and Rep. Zoe Lofgren, D-Calif.

"Unmanned drones must not become a perpetual presence in our lives, hovering over us, following us and recording our every move," said Chris Calabrese, legislative counsel for the ACLU. "Strict rules should govern the use of drones by the government. By requiring that law enforcement secure judicial approval before using drones, this legislation achieves the right balance for the use of these eyes in the sky."

Under the proposed legislation, drone use by law enforcement would be focused exclusively on criminal wrongdoing and subject to judicial approval, in most cases a search warrant. All government agencies would have to register all drones and the results of criminal investigation involving the technology must be reported to Congress. The arming of drones would be flatly prohibited.

More information on domestic drones is at: www.aclu.org/blog/tag/domestic-drones

Breaking Update, 2:30pm, February 14th: State doctors reversed an earlier finding and officially declared today that Warren Hill has mild mental retardation, placing Mr. Hill in the category of citizens protected from capital punishment by the 2002 United States Supreme Court decision Atkins v. Virginia. Mr. Hill's execution, scheduled for February 19th, must be stayed.

Secular and religious leaders from Vice President Humphrey to Mahatma Gandhi have taught that the character of society is judged on the basis of how it treats its weakest members. The words echo the teaching of Jesus and seem fitting to reflect on today as many Christians embark on the Lenten season of fasting, repentance, and spiritual discipline.

When I think about Georgia's scheduled execution of Warren Lee Hill, this principle haunts me. Hill is intellectually disabled (formerly called mentally retarded), and so clearly among society's weakest. The State of Georgia plans to execute him on February 19th. How do I explain to my six year-old son what kind of a society plans to execute an intellectually disabled man?

It's certainly not the society envisioned by the precedents of the United States Supreme Court. Since its 2002 landmark decision in Atkins v. Virginia, the Court has barred the execution of the intellectually disabled as cruel and unusual punishment. The American Association of Intellectual and Developmental Disabilities (AAIDD) generally defines intellectual disability as significantly sub-average intellectual functioning (an IQ of approximately 70 or below, accounting for any science-based scoring adjustments), with an onset before age 18, and accompanying limitations in two or more "adaptive skill" areas such as communication, self-care, home-living, interpersonal skills, academic skills, or the use of community resources. Our high court looked to this definition in its Aktins decision.

As the AAIDD and the Georgia Council on Developmental Disabilities and other experts have found, Hill squarely meets this definition. He has since his school days, when standardized tests placed him in the bottom 2-3% of his peers and his teachers clearly recognized his disability. A Georgia trial court hearing all of this evidence agreed that Hill meets the standard. The family of Hill's victims see it, and have agreed he should be sentenced to life in prison without release, not execution.

So what gives? If the court, the victims' family, and Hill's childhood teachers all say that Hill is intellectually disabled, then how can he be executed? The answer is a technicality, a glitch, a quirk in Georgia law. Georgia stands alone among death-penalty states in requiring proof beyond a reasonable doubt of intellectual disability before barring execution. The Georgia judge found beyond a reasonable doubt that Hill had an IQ of 70 or below, but only by a "preponderance of the evidence" that he suffers adaptive limitations and that he began suffering his disability before the age of 18. A "preponderance of the evidence" is lawyer-speak for more likely than not. In other words, Georgia says to Hill, we're pretty sure you're intellectually disabled, but we find you don't meet our very high standard of proof.

Society shows its best self when it takes care of its disabled, makes available needed services, allows for equal education and other opportunities. And of course we don't require the disabled to prove their disability beyond a reasonable doubt -- the highest standard of proof known to law (designed, as we have previously explained, for a completely different purpose). We provide these services and opportunities without anything like this kind of scrutiny because it's the right thing to do. It's also the right thing to do to stop this execution from proceeding on a technicality. Hill's pending petition to the U.S. Supreme Court asks the Court to stop the execution, and in turn to save us from our worst selves. Let's hope they do.

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Governments often interpret radical ideas that challenge the existing social and political orthodoxy as threatening, which is why they often attempt to suppress them. Our country's founders recognized that ideas considered radical – like their own ideas about self-governance – were necessary for social progress and essential to a vibrant democracy, so they sought to protect them with the First Amendment.

Unfortunately we haven't always lived up to this standard, particularly in times of real or perceived national crisis. During the First World War, for example, Congress banned anti-war speech and unleashed the FBI to conduct investigations of Americans' political beliefs. Congress and state legislatures held hearings to examine American radicals – who they defined as pacifists, socialists, labor organizers and the organizations that defended their rights, like the National Civil Liberties Bureau, the precursor organization to the American Civil Liberties Union. So we at the ACLU tend to get concerned when our government identifies "radicalization" as a threat that has to be countered, because we know that while promoted as an effort to protect security, such instances too often turn into efforts to suppress belief, speech and association.

Unfortunately, after 9/11, our intelligence and law enforcement agencies have again identified "radicalization" as a problem that must be addressed, by promoting a flawed theory that adopting radical ideas is a dangerous first step toward committing terrorist acts. Countering terrorism, the thinking goes, begins with countering radicalization. Based on this discredited model, intelligence and law enforcement agencies implemented flawed and wasteful "preventive" policies that result in discrimination, suspicionless surveillance of entire communities, and selective law enforcement against belief communities and political activists.

Congress has sought to entrench the theory with a series of hearings and reports, and has demanded the government establish a "counter-radicalization policy." We raised concerns when Congress attempted to establish a commission to study radicalization in 2007, and again in 2011. We submitted statements to Congress in 2009, 2010, 2011, and 2012, and we worked with coalition partners to point out the factual and methodological flaws in reports that promote this dangerous theory, as have other allies. Rather than challenge the radicalization theory with the many studies that refute it, the Obama administration issued a plan for preventing violent extremism. While the White House deserves some credit for using more careful language and for emphasizing the need for community engagement, it perpetuates the notion that "radicalization to violence" is a discernible process that government can identify, predict and interdict, and establishes policies that again threaten civil liberties.

Now, policy makers are again raising radicalization as a hot topic that must be addressed, as we've written about here and here. Over the next several days we will publish a series of blogs that update our concerns with these renewed efforts to establish counter-radicalization as official U.S. policy – and lay out the civil liberties implications that follow. The blogs will examine the White House's new plan for countering "online radicalization to violence," the FBI's abuse of community outreach programs for intelligence gathering, and more. Stay tuned.

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Washington and Colorado made big news on Election Day last year when residents voted to legalize small amounts of recreational marijuana – could the federal government be next? Last week, two bills were introduced in the House of Representatives aimed at resolving the difference between laws in states like Washington and Colorado and federal law.

The first bill, introduced by Congressman Jared Polis (D-CO), treats marijuana like alcohol and tobacco by requiring growers to obtain a federal permit. His proposal would address the inconsistency between federal law and state law in states that choose to legalize. Congressman Earl Blumenauer (D-OR) introduced the other bill, which creates a framework to begin taxing the production and sale of marijuana.

This isn't the first time Congress has considered steps toward legalization, but now momentum is on our side. According to a recent poll, more than half of Americans think the federal government should leave states alone when it comes to drug laws. More and more people are realizing that criminalizing marijuana just doesn't make sense.

The war on marijuana is waged at a tremendous personal and financial cost. Don't believe me? Take a look at these two figures:

• Over 660,000 people were arrested for marijuana possession in 2011.
• Enforcement of federal marijuana laws costs an estimated minimum of $5.5 billion dollars each year.

That's far too many lives upended for a using a drug that nearly half of the nation thinks should be legal for recreational purposes and 70 percent feel should be legal for medicinal purposes. More Americans are already deprived of their liberty today than ever before – unfairly and unnecessarily, with no benefit to public safety. The criminalization of marijuana only adds to this problem.

The laws passed in Colorado and Washington put the administration in a difficult position, since the states legalized a substance that is still treated as illegal and actively prosecuted by the federal government. The bill proposed by Polis would allow other states to decide their own drug policy without interference from the federal government. If more states are going to follow the lead of Colorado and Washington, we need to guarantee that federal authorities won't arrest recreational users.

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This was cross-posted to the American Constitution Society blog. 

The impact Superstorm Sandy had on homes, businesses, nonprofits, and houses of worship across the Northeast was devastating. And still, in the wake of the storm, these institutions reached out to their communities to provide the help they could. At the same time, they began the process of their own rebuilding; for congregations, this meant repairing their sanctuaries and sacred spaces.

After a disaster, businesses and nonprofits often look to government assistance to help rebuild damaged property. Despite the talk in the past couple of months about how these government assistance programs discriminate against houses of worship, they don't. All nonprofit organizations (including houses of worship) and for-profit businesses can get low-interest, long-term, government-secured loans—up to $2 million—for losses not fully covered by insurance. Direct FEMA grants of taxpayer funds, however, are intended to serve a certain purpose—those grants are for nonprofits with facilities used for emergency, essential, and government-like activities to the community at large. Houses of worship, just like the many other nonprofit facilities, aren't then eligible to receive FEMA grants. Today, the House of Representatives approved H.R. 592, the so-called Federal Disaster Assistance Nonprofit Fairness Act of 2013, a bill that would upend this well-established policy to explicitly permit FEMA to funnel taxpayer funds to houses of worship.

FEMA's policy not only ensures that FEMA grants are used to rebuild facilities that provide the most critical services to the entire community, but also reflects an important constitutional principle. Religious liberty is one of our nation's most fundamental values and it starts from the precept that religion and religious institutions thrive when both religion and government are safeguarded from the undue influences of the other.

As the Supreme Court has repeatedly recognized, one of the central aims of the First Amendment's Establishment Clause is to protect against funding religious worship with taxpayer dollars. Accordingly, longstanding precedent holds that taxpayer funds cannot go to construct or rebuild buildings used primarily for religious activities.

This principle is not discriminatory or hostile to religion. Rather, as James Madison forcefully argued centuries ago, and is equally valid today, it is one of the most fundamental ways we have to protect and defend religious liberty for all. It protects the conscience of each of us, ensuring that no taxpayer is required to fund a religious institution with tenets he or she may not believe in. It likewise protects religious institutions by guaranteeing their autonomy and independence from the government. As the Rev. Mark Lukens of the Bethany Congregational Church in the East Rockaway explained last week, "When we take money from the government for our houses of worship for purely religious purposes, essentially what we are doing is we are allowing ourselves to be co-opted."

Although houses of worship often serve a central role in the lives of their congregants, the prayer and worship conducted in these sacred buildings are necessarily distinct from the essential, government-like activities conducted in facilities that are eligible for FEMA grants. It would be a dangerous precedent to equate religious worship with the vital services governments provide—one that would harm religious liberty. The First Amendment sometimes requires and sometimes permits houses of worship to be treated differently, and this policy is just another example.

Sadly, this isn't the first time our country has faced natural disaster, and it won't be the last. Houses of worship were damaged by Hurricane Katrina just as they were by Sandy. In the aftermath of Katrina, the Bush Administration—hardly a strict enforcer of the Establishment Clause—nonetheless continued FEMA's longstanding policy on houses of worship. But now, in the wake of Sandy, the House of Representatives has rejected this longstanding policy to explicitly permit FEMA to funnel taxpayer funds to houses of worship.

This effort to erode fundamental protections for religious liberty is disheartening. We must strive to protect and defend the Constitution, even when doing so may be hard and even when we have to rebuild after disasters.

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