ACLU National

A targeted killing white paper by which government agency reasons that judicial process is unnecessary?

The conditions in Ohio's Lake Eerie Correctional Facility have taken a dramatic turn for the worse since the state sold the facility to which private prison company?

The ACLU is challenging in court the secrecy over which government agency's racial profiling program?

Which state may be the first to regulate surveillance drones?

True or False?: the number of legislative attacks on abortion in the past two years is more than double what it was from 2009-2010.

The Justice Department's White Paper on Targeted Killing

Michael Isikoff at NBC News has obtained a Justice Department white paper that purports to explain when it would be lawful for the government to carry out the extrajudicial killing of an American citizen believed to be affiliated with a terrorist organization. Many of the white paper's arguments are familiar because Attorney General Eric Holder set them out in a speech at Northwestern University in March of last year. But the white paper offers more detail, and in doing so it manages to underscore both the recklessness of the government's central claim and the deficiencies in the government's defense of it.

States Should Run Screaming From the CCA to Avoid Dangerous and Disgusting Prisons

Given the terrifying tales coming out of Ohio's Lake Erie Correctional Facility, states should get as far away as possible from the Corrections Corporation of America's (CCA) latest get-rich-off-imprisonment scheme: purchasing and running public prisons.

Shhhh – What The FBI Doesn't Want You to Know About its Racial Profiling Program

The FBI is using a racial and ethnic mapping program to collect intelligence on American communities – and it doesn't want you to know which ones it's spying on, or how it's using census data to do so. The ACLU and the ACLU of Michigan filed a brief in federal court on Friday to challenge the FBI's secrecy over its profiling practices.

Florida Poised to Become First State to Regulate Surveillance Drones

State legislatures around the country are gearing up to take action on domestic surveillance drones. Maine has a bill introduced, as do Missouri, Nebraska, North Dakota, Oklahoma, Oregon, and Texas. In Virginia a hearing has already been held on a bill, while Montana has three bills, and hearings have already been held there as well.

But perhaps the state furthest along is Florida, which may become the first in the nation to enact domestic surveillance drone regulations into law. I spoke with Ron Bilbao, who is an ACLU lobbyist in Florida, and here's what he had to say about the situation there.

Which State Will Ban Abortion First?

In Arkansas this week, the State Senate passed a bill that would ban almost all abortions. Within a month, women in Arkansas could be prevented from receiving abortion care, no matter what their circumstances.

In North Dakota, the legislature is poised to vote on set of bills that aim to ban abortion, close down women's health centers, and could prevent couples from using in-vitro fertilization to build their family. The Senate is expected to vote on those bills next week.

In Mississippi and Alabama and several other states, legislators are playing at the same game – introducing legislation that takes away a woman's ability to have all options open to her.

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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.

A Pair of Decidedly Positive Developments on the Federal Front

I've talked previously on this blog about the many problems with solitary confinement, and you can learn a lot more here. This week, the Federal Bureau of Prisons agreed to a comprehensive review of the use of solitary confinement in its prisons after pressure from Illinois Senator Dick Durbin. The National Institute of Corrections study will report on the effects of solitary confinement on prisoners as well as public safety and fiscal concerns with the practice. The decision continues the momentum to scrutinize solitary confinement in federal prisons following last summer's first-ever Senate hearing on solitary confinement.

In another positive development, two House members introduced legislation to regulate marijuana the way the federal government handles alcohol: In states that choose to legalize marijuana, growers would have to obtain a federal permit. The Drug Enforcement Administration would no longer have authority over marijuana, which would instead by overseen by the Bureau of Alcohol, Tobacco, Marijuana and Firearms. It would remain illegal to bring marijuana from a state where it's legal to one where it isn't, and excise taxes on marijuana sales would be used to fund law enforcement, substance abuse treatment, and bring down the national debt.

Iowa Demonstrates That Parole Reform Can Mean Fewer Prisoners, Safer Streets

Iowa's prison population is down about 10 percent since 2010, in large part because the state is releasing more low-risk people from probation and parole. Parole grants in 2012 increased by about 22 percent from the previous year.

Releasing low-risk people has freed up resources to provide the best supervision and treatment for prisoners who pose a greater risk, including substance abuse treatment, vocational education GED classes, behavioral programs, drug courts and mental health courts—programs that tend to be good investments because they typically reduce recidivism rates. In addition, staff-to-prisoner ratios are higher, improving safety in Iowa facilities.

New York's Chief Justice Calls State's Bail System Unfair to the Poor

In his State of the Judiciary address, New York Chief Judge Jonathan Lippman criticized New York's pretrial release practices as unsafe and unfair to the poor, and called for an overhaul. He observed that bail amounts have risen and that pretrial release rates have correspondingly dropped, and identifies the bail bond industry's role in increasing bail amounts (bail bondsmen earn a percentage of the bond, which means that higher bail is more profitable). "More than simply being unfair, incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its Operation," said Lippman. You can read his full address here.

In an Unusual Case, Federal Prosecutors Seek Life in Prison for Amish Beard-Cuttings

Federal prosecutors in Ohio are seeking life in prison without parole for an Amish bishop who encouraged his followers to shear the beards of several fellow Amish men. Samuel Mullet, Sr. did not participate in the five hair- and beard-shearings in 2011, but was convicted of federal hate crimes for knowing about the assaults, which you can read about here, and failing to stop them from occurring. Two points are particularly noteworthy: (1) 14 other Amish communities have petitioned the Department of Justice to seek a "long" or "life" sentence in the case; and that (2) none of the victims suffered more severe physical harm than nicks, bruises, and shorn beards.

Learn more about criminal law reform and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.

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.

A Pair of Decidedly Positive Developments on the Federal Front

I've talked previously on this blog about the many problems with solitary confinement, and you can learn a lot more here. This week, the Federal Bureau of Prisons agreed to a comprehensive review of the use of solitary confinement in its prisons after pressure from Illinois Senator Dick Durbin. The National Institute of Corrections study will report on the effects of solitary confinement on prisoners as well as public safety and fiscal concerns with the practice. The decision continues the momentum to scrutinize solitary confinement in federal prisons following last summer's first-ever Senate hearing on solitary confinement.

In another positive development, two House members introduced legislation to regulate marijuana the way the federal government handles alcohol: In states that choose to legalize marijuana, growers would have to obtain a federal permit. The Drug Enforcement Administration would no longer have authority over marijuana, which would instead by overseen by the Bureau of Alcohol, Tobacco, Marijuana and Firearms. It would remain illegal to bring marijuana from a state where it's legal to one where it isn't, and excise taxes on marijuana sales would be used to fund law enforcement, substance abuse treatment, and bring down the national debt.

Iowa Demonstrates That Parole Reform Can Mean Fewer Prisoners, Safer Streets

Iowa's prison population is down about 10 percent since 2010, in large part because the state is releasing more low-risk people from probation and parole. Parole grants in 2012 increased by about 22 percent from the previous year.

Releasing low-risk people has freed up resources to provide the best supervision and treatment for prisoners who pose a greater risk, including substance abuse treatment, vocational education GED classes, behavioral programs, drug courts and mental health courts—programs that tend to be good investments because they typically reduce recidivism rates. In addition, staff-to-prisoner ratios are higher, improving safety in Iowa facilities.

New York's Chief Justice Calls State's Bail System Unfair to the Poor

In his State of the Judiciary address, New York Chief Judge Jonathan Lippman criticized New York's pretrial release practices as unsafe and unfair to the poor, and called for an overhaul. He observed that bail amounts have risen and that pretrial release rates have correspondingly dropped, and identifies the bail bond industry's role in increasing bail amounts (bail bondsmen earn a percentage of the bond, which means that higher bail is more profitable). "More than simply being unfair, incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its Operation," said Lippman. You can read his full address here.

In an Unusual Case, Federal Prosecutors Seek Life in Prison for Amish Beard-Cuttings

Federal prosecutors in Ohio are seeking life in prison without parole for an Amish bishop who encouraged his followers to shear the beards of several fellow Amish men. Samuel Mullet, Sr. did not participate in the five hair- and beard-shearings in 2011, but was convicted of federal hate crimes for knowing about the assaults, which you can read about here, and failing to stop them from occurring. Two points are particularly noteworthy: (1) 14 other Amish communities have petitioned the Department of Justice to seek a "long" or "life" sentence in the case; and that (2) none of the victims suffered more severe physical harm than nicks, bruises, and shorn beards.

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Think the war on women is over? Think again.

Some politicians have decided to start the 2013 state legislative session by targeting women's reproductive health.

Yesterday in North Dakota, state senators voted on a measure that could be used to ban abortion, restrict treatment for infertility, and threaten access to contraception. If politicians in North Dakota get their way, women would be prevented from seeking abortion and other reproductive health care in the state.

Also yesterday, lawmakers in Arkansas advanced a measure that could ban abortions as early as 12 weeks -- that's just a few weeks after a woman might find out she's pregnant and before she might have learned about the complete health of her pregnancy.

And earlier this week in Alabama, legislators rushed through committee a bill that could shut down every women's health center in the state that provides abortion care to those that need it.

Politicians in Mississippi, Kentucky, and other states also advanced bills this week to restrict a woman's decision making ability.

The election season might be over, but it's clear that politicians from coast to coast aren't done trying to dismantle a woman's ability to make personal decisions about their families.

Learn more about abortion and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.

Think the war on women is over? Think again.

Some politicians have decided to start the 2013 state legislative session by targeting women's reproductive health.

Yesterday in North Dakota, state senators voted on a measure that could be used to ban abortion, restrict treatment for infertility, and threaten access to contraception. If politicians in North Dakota get their way, women would be prevented from seeking abortion and other reproductive health care in the state.

Also yesterday, lawmakers in Arkansas advanced a measure that could ban abortions as early as 12 weeks -- that's just a few weeks after a woman might find out she's pregnant and before she might have learned about the complete health of her pregnancy.

And earlier this week in Alabama, legislators rushed through committee a bill that could shut down every women's health center in the state that provides abortion care to those that need it.

Politicians in Mississippi, Kentucky, and other states also advanced bills this week to restrict a woman's decision making ability.

The election season might be over, but it's clear that politicians from coast to coast aren't done trying to dismantle a woman's ability to make personal decisions about their families.

Learn more about abortion and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.

We can honor Dr. King's legacy by embracing his dream of equality for all people – regardless of race, creed or color. We can also make a decision to be of service – to take actions that improve our communities and, ultimately, our society.

—Damon Hininger, President and CEO, Corrections Corporation of America

That quote comes from a short message from Mr. Hininger entitled, "Celebrating Black History Month." It's a fine sentiment that would be unobjectionable but for the fact that it's utterly incompatible with the fundamental mission of the Corrections Corporation of America (CCA), which profits from the incarceration of over 80,000 men and women each day, whom they variously describe as a "revenue stream" and "unique investment opportunity."

Nowhere in Mr. Hininger's message is it mentioned that 38 percent of CCA's "revenue stream" consists of black men and women, or that his company spends millions of dollars each year to influence campaigns and lobby elected officials to keep that revenue stream flowing into CCA's prisons. His message is also silent on the tragic realities that result from the laws and practices that make his business possible:

• 1 in 9 black men age 20-34 are behind bars.
• A black man born today will have a 1 in 3 chance of going to prison during his lifetime.
• Today, there are more black men in prison and jail, or on probation and parole, than were slaves before the start of the Civil War.

Indeed, there is nothing about the modern criminal justice system that promotes equality for all people. As of 2004, more African American men were disenfranchised by felon disenfranchisement laws than in 1870, the year the Fifteenth Amendment was passed to prohibit laws that explicitly deny the right to vote on the basis of race. Spending time in prison means a lifetime of higher unemployment, lower income, and minimal social mobility; because such a high percentage of black men are incarcerated, we're actually seeing widening racial income inequality. These are the consequences of CCA's business.

What's most unsettling about Mr. Hininger's missive is that it's so completely unconscious of the reality that his company supports and depends upon a system of mass incarceration that has devastated the black community, and that has done more than anything since Jim Crow to perpetuate a racial caste system in America. CCA might celebrate Black History Month, but no part of Black History Month celebrates CCA.

Learn more about private prisons and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.

We can honor Dr. King's legacy by embracing his dream of equality for all people – regardless of race, creed or color. We can also make a decision to be of service – to take actions that improve our communities and, ultimately, our society.

—Damon Hininger, President and CEO, Corrections Corporation of America

That quote comes from a short message from Mr. Hininger entitled, "Celebrating Black History Month." It's a fine sentiment that would be unobjectionable but for the fact that it's utterly incompatible with the fundamental mission of the Corrections Corporation of America (CCA), which profits from the incarceration of over 80,000 men and women each day, whom they variously describe as a "revenue stream" and "unique investment opportunity."

Nowhere in Mr. Hininger's message is it mentioned that 38 percent of CCA's "revenue stream" consists of black men and women, or that his company spends millions of dollars each year to influence campaigns and lobby elected officials to keep that revenue stream flowing into CCA's prisons. His message is also silent on the tragic realities that result from the laws and practices that make his business possible:

• 1 in 9 black men age 20-34 are behind bars.
• A black man born today will have a 1 in 3 chance of going to prison during his lifetime.
• Today, there are more black men in prison and jail, or on probation and parole, than were slaves before the start of the Civil War.

Indeed, there is nothing about the modern criminal justice system that promotes equality for all people. As of 2004, more African American men were disenfranchised by felon disenfranchisement laws than in 1870, the year the Fifteenth Amendment was passed to prohibit laws that explicitly deny the right to vote on the basis of race. Spending time in prison means a lifetime of higher unemployment, lower income, and minimal social mobility; because such a high percentage of black men are incarcerated, we're actually seeing widening racial income inequality. These are the consequences of CCA's business.

What's most unsettling about Mr. Hininger's missive is that it's so completely unconscious of the reality that his company supports and depends upon a system of mass incarceration that has devastated the black community, and that has done more than anything since Jim Crow to perpetuate a racial caste system in America. CCA might celebrate Black History Month, but no part of Black History Month celebrates CCA.

Learn more about private prisons and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.

Aiming to determine the impact of border searches on Americans’ civil liberties, the Department of Homeland Security has produced a report on its policy of combing through and sometimes confiscating travelers’ laptops, cell phones, and other electronic devices—even when there is no suspicion of wrongdoing. The report was completed sometime between October 2011 and September 2012, and last week DHS quietly posted only the executive summary on its website, without many people noticing.

The report draws the highly questionable conclusion that the border search policy does not violate our Fourth Amendment right to privacy, chill our First Amendment rights to freedom of speech and association, or even result in discriminatory search practices.

We know that answer can’t be right if we take our Fourth Amendment and First Amendment rights seriously—and the ACLU is working to demonstrate that in two lawsuits currently pending before federal courts. So how did the agency reach this conclusion? We don’t know, because DHS has not made the full report available to the public, and the executive summary does not explain any of the evidence or reasoning its conclusions are based on.

Today the ACLU filed a request under the Freedom of Information Act demanding the full report, called “Civil Rights and Civil Liberties Impact Assessment – Border Searches of Electronic Devices.” (You can read our request here).

What we want to discover is what would make the DHS Office of Civil Rights and Civil Liberties, which wrote the report and according to its website is supposed to be “promoting respect for civil rights and civil liberties in [DHS] policy creation and implementation,” reach such conclusions about these highly invasive practices. If it’s true that our rights are safe and that DHS is doing all the things it needs to do to safeguard them, then why won’t it show us the results of its assessment? And why would it be legitimate to keep a report about the impact of a policy on the public’s rights hidden from the very public being affected?

Since at least 2008 it has been the policy of DHS that the two agencies that monitor the border—Immigration & Customs Enforcement and Customs & Border Protection–can look at information on travelers’ laptops, cell phones, hard drives, and other devices, and sometimes keep the information or share it with others, even when there is no suspicion that the device contains evidence of wrongdoing. Essentially DHS has adopted a policy of peering into anyone’s data, at any time, for any reason. Through a FOIA request filed three years ago we discovered that more than 6,500 travelers had their devices searched under this policy between October 2008 and June 2010. Almost half of those were U.S. citizens.

The executive summary posted online by DHS last week claims that requiring a standard of reasonable suspicion for these highly intrusive searches (a relatively low standard compared to the probable cause standard required to get a warrant) “would be operationally harmful without concomitant civil rights/civil liberties benefits.” But the reality is that allowing government agents to search through all of a traveler’s data without reasonable suspicion is completely incompatible with our fundamental rights: our Fourth Amendment right to privacy—and more specifically the right to be free from unreasonable searches—is implicated when the government can rummage through our computers and cell phones for no reason other than that we happen to have traveled abroad. Suspicionless searches also open the door to profiling based on perceived or actual race, ethnicity, or religion. And our First Amendment rights to free speech and free association are inhibited when agents at the border can target us for searches based on our exercise of those rights.

Take, for example, the case of Pascal Abidor, a dual U.S.-French citizen whose laptop was seized and searched while he was traveling home to New York from Canada on an Amtrak train in 2010. Abidor was handcuffed, frisked, and kept in a holding cell for several hours, and his laptop was taken for 11 days. Government agents searched through highly personal information on his laptop, including personal photos, a transcript of a chat with his girlfriend, his tax returns, and his academic research. The only “wrongdoing” he engaged in was crossing the border as an Islamic Studies graduate student at a Canadian university who had recently traveled to the Middle East. The ACLU represents him in a federal lawsuit seeking to enforce a reasonable suspicion standard for border searches and seizures so that such violations of privacy and free expression don’t happen again.

My colleague ACLU attorney Catherine Crump says that with the FOIA request we filed today, “We hope to establish that the Department of Homeland Security can’t simply assert that its practices are legitimate without showing us the evidence, and to make it clear that the government’s own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.”

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

WASHINGTON – "This new rule reaffirms the vitality of the discriminatory effects standard under the Fair Housing Act, which has been one of the most powerful tools of civil rights enforcement for decades," said Dennis D. Parker, Director of ACLU's Racial Justice Program. "Discrimination today often takes subtle forms, and the HUD rule ensures that people will be able to battle discrimination."

View the HUD announcement here.

ACLU and Housing Discrimination

Litigation
Last fall, the ACLU filed a lawsuit in federal district court in Manhattan to hold Morgan Stanley accountable for its collaboration with the subprime lender New Century, which supplied Morgan Stanley with a steady stream of irresponsible, high-risk loans issued in communities of color that were particularly vulnerable to economic ruin. For more information on this case (Adkins et al. v. Morgan Stanley), see here.

The ACLU Women's Rights Project has also been a leader in using disparate impact claims to address housing discrimination against survivors of domestic and sexual violence. Landlords often blame victims for the abuse occurring at the property, and evict them and their children. Because the majority of domestic violence victims are women, these practices have a discriminatory effect based on gender and violate the Fair Housing Act. For more, see here.

Report
Last fall, ACLU issued a report called Justice Foreclosed that looked at how Wall Street's demand for loans encouraged predatory lending in communities of color; how that in turn fueled the housing crisis, and how the bust will continue to affect these communities for years, if not generations, to come.

A special post for our friends and followers in New York City.

With a flare for innovation fit for Steve Jobs, the New York Civil Liberties Union has empowered anyone who can download Doodle Jump to protect their neighbors from the NYPD's abusive stop-and-frisk tactics.

Today, the NYCLU unveiled an iPhone version of Stop and Frisk Watch – our free smart-phone app that allows bystanders to document stop-and-frisk encounters and alert community members when a street stop is in progress.

Stop and Frisk Watch, which has been available on Android phones since June, has three primary functions:

• RECORD: Users can film a police encounter with audio. When filming stops, the user immediately receives a brief survey allowing them to provide details about the incident. The video and survey is sent to the NYCLU.
• LISTEN: This alerts users when someone in their neighborhood is being stopped by the police. It's especially useful for community groups that monitor police activity.
• REPORT: This prompts the survey, allowing users to report a police interaction they saw or experienced, even if they didn't film it.

In neighborhoods throughout New York City, an innocent trip to the corner store or subway carries the risk of enduring a humiliating and intimidating police stop. The NYPD's very own data shows that hundreds of thousands of innocent New Yorkers are stopped and frisked each year. Nearly nine out of every ten people stopped are black or Latino.

The information collected through Stop and Frisk Watch documents how the NYPD's abusive stop-and-frisk tactics corrode trust between police and communities. The NYCLU reviews every video and report, and investigates all relevant submissions to the fullest extent possible.

Since June, nearly 20,000 New Yorkers have downloaded the app on Android phones. We've received hundreds of videos documenting police incidents. In addition, New Yorkers have submitted more than 1,000 written reports, including documentation of police officers being verbally abusive and even drawing weapons during street stops.

These submissions have confirmed many of our concerns about the NYPD's stop-and-frisk practices. The app is helping to rally support for much-needed reforms to end abusive and discriminatory policing in New York City.

For more information about Stop and Frisk Watch, please visit www.nyclu.org/app.

This app can only be used in New York City, but apps that help to promote police accountability are a growing national trend. Check out the ACLU of New Jersey's Police Tape app, for example.

Learn more about police practices and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.

Last week, the Obama administration released a proposed rule implementing the requirement that insurance plans cover birth control as part of "Obamacare." The proposal implements an accommodation announced last year, which allows nonprofits with religious affiliations to opt out of providing contraceptive coverage while ensuring that employees and dependents will get such coverage directly from insurance companies.

What does this mean for women? It means the administration continues to stand up for us to make sure we have access to basic health care. The Department of Health and Human Services recognized that the overwhelming majority of women use contraception at some point of their lives, and that it's essential preventive care for women—which is why they adopted the rule in the first place. As things move forward and details get worked out, it's important to make sure that women get this coverage seamlessly, without burdens or hurdles.

What does this mean for employers opposed to contraception? Although the original rule (which did not make this accommodation for nonprofits that objected to providing contraception) was perfectly legal and completely consistent with religious freedom principles, the administration has now gone out of its way to provide modifications for nonprofit institutions with religious objections. Under the proposed rule, those nonprofit employers could decide not to contract, arrange, pay, or refer for birth control coverage. Their employees will, however, be provided coverage, through their insurer, under the proposal. For-profit businesses—such as Hobby Lobby, a national retail chain currently suing the administration—will still have to comply with the original rule, and can't withhold contraceptive coverage from their workers. As the Obama administration explained, these entities don't get accommodations under other nondiscrimination laws, so the proposal is consistent.

You'd think the nonprofits opposed to the rule would be satisfied, right? Think again. Sarah Lipton-Lubet, ACLU policy counsel, said last week:

Over the last year, we've seen a disturbing number of instances where employers are trying to impose their religious beliefs on a diverse workforce that does not share them, and opponents of the law have made it clear that they won't rest until no insurance plan, whatever the source, is required to cover contraception.

That's because from the start, this has never been a fight about religious liberty. It's always been about whether women will have affordable birth control and equal access to benefits. And in 2013, apparently that's a fight we're still having.

The fight over the contraception rule is just one piece of a larger issue that's been popping up around the country where institutions and individuals are trying to use religion to discriminate. Companies withholding access to birth control coverage are just one example. We've also seen inns and bakeries refuse to provide rooms and cakes to same-sex couples celebrating their relationships. Religious freedom means we all have the right to hold our own beliefs, but it does not give one group the right to impose its beliefs on its employees or customers. That's not religious freedom—that's discrimination plain and simple.

In the News:

• AP: Obama offers faith groups new birth control rule
• New York Times: A Good Compromise on Contraception
• USA Today: HHS issues proposed contraception coverage rule
• Bloomberg: Critics Want More Exemptions From U.S. Birth-Control Rule
• NBC News: White House tries for new compromise on birth control
• BBC: White House unveils new contraception opt-out

Learn more about access to contraceptives and other civil liberty issues: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.

Case Is Latest Example of State Attempting to Target and Drive Out Immigrants

February 7, 2013

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

MONTGOMERY, Ala. — A coalition of civil rights organizations filed a lawsuit today to block a portion of Alabama's anti-immigrant law requiring state officials to publicly post an online list of immigrants who may be undocumented.

The lawsuit was filed in federal district court on behalf of four Latino immigrants in Montgomery County who were arrested for allegedly fishing without a license – a misdemeanor offense. The law does not give immigrants any way to dispute their inclusion in the database.

Justin Cox, staff attorney with the ACLU Immigrants' Rights Project, pointed out that the "black list" — which has also been called the "scarlet letter" provision — was controversial when it was pushed through by one Alabama legislator. "Sen. Scott Beason should never have been allowed to hijack the state legislature with his anti-immigrant agenda. This law violates privacy laws and basic constitutional rights, as well as conflicts with fundamental American values of fairness and equality. Instead of moving forward with a mean-spirited law that is doomed to fail, Alabama should join the rest of the country and focus on common-sense reforms that benefit citizens and immigrants alike."

Kristi Graunke, staff attorney with the Southern Poverty Law Center, said: "This part of Alabama's anti-immigrant law represents an unfortunate effort to bully and intimidate immigrants into leaving Alabama. It is designed to permanently brand, humiliate and otherwise make life difficult for immigrants regardless of status. It conflicts with federal privacy requirements and burdens the already cash-strapped state court system. Sadly, laws like this show that Alabama has yet to turn away from the devastation its anti-immigrant laws have caused."

Nora Preciado, staff attorney with the National Immigration Law Center, said: "While the rest of the country focuses on how best to make Americans at heart become Americans on paper, Alabama continues to tread down a discriminatory, anti-immigrant path. This lawsuit proves once again that Alabama's policies aren't just unconstitutional, but also out of touch with the political mainstream."

The latest attack on immigrants in Alabama is part of HB 658, a package of revisions to the state's notorious anti-immigrant law, HB 56. HB 658 effectively doubled-down on the draconian nature of the original law, enacted in 2011. Section 5 of HB 658 requires the state to compile and post on a public website the names and other information clearly identifying certain immigrants when they are detained on any state charge, no matter how minor, and appear in state court. The plaintiffs in this case and even those charged with minor traffic violations would fall within this requirement and be unconstitutionally added to the "black list."

Section 5 requires the posting of private information that the federal government has declared confidential and not subject to public disclosure. Moreover, once a person is named on the list, the law provides no means to remove their name or change their information if the listing is inaccurate, the person obtains permission to live in the United States, or even becomes a citizen.

The Alabama Administrative Office of Courts is charged with compiling the list. All individuals falling into a new and vague category of immigration status created by the law are added to the list, even if their cases are later dismissed. The law also provides no notice to people that their names and information will be listed online.

The U.S. Court of Appeals for the 11th Circuit has already blocked key provisions of Alabama's original law — the most extreme in the nation — after finding that it conflicted with federal immigration law. The revision mandating the "black list" also violates federal law, and encourages discrimination by targeting immigrants.

For a copy of the complaint: www.aclu.org/immigrants-rights/doe-v-hobson-complaint

For more information about Alabama's original anti-immigrant law: www.aclu.org/crisis-alabama-immigration-law-causes-chaos

Bertha Mejia is a 53-year-old grandmother who fled political violence and sexual abuse in her native El Salvador as a girl. She has four U.S. citizen children and is the primary caretaker for her 9-year-old grandson, Pablo. The victim of rape at the hands of her employer, Ms. Mejia has a strong case for a "U-visa," a type of visa for victims of crime who cooperate with law enforcement. The police have already certified that Ms. Mejia is a victim who has assisted the police in apprehending the perpetrator.

Unfortunately, Ms. Mejia also has a shoplifting problem. She began stealing food as a child to feed her brothers and sisters. She has had a series of minor offenses, mostly related to stealing food items, and was diagnosed with kleptomania in 2011. Ms. Mejia has no violent criminal history and has strong claims for legal immigration status, yet she has spent the last 16 months in immigration detention solely based on her shoplifting offenses. Her detention is based on a 1996 law that purports to authorize prolonged mandatory detention during immigration proceedings even for individuals who pose no threat to public safety.

Today, the ACLU of Northern California, along with Ms. Mejia's immigration attorney Rosy Cho, filed a petition for a writ of habeas corpus, seeking Ms. Mejia's release. We argue that Congress could not have authorized prolonged detention based only on a record that includes a crime of "moral turpitude" (like shoplifting or writing a bad check), without requiring the government to convince a neutral judge that prolonged detention is justified because the detainee poses a danger to the community or is a flight risk.

Ms. Mejia has no violent criminal history and poses no danger to the community. Her loved ones all live in the vicinity of where her immigration court proceedings are held. While her application for the U-visa is pending, Ms. Mejia has every reason to appear at all court hearings and pursue immigration relief. And yet, Immigration and Customs Enforcement, which has the discretion to release her with any conditions that they find suitable, such as bond or electronic monitoring, refuses to do so. The immigration judge who presides over her case has ruled that he has no authority to release her and so Bertha Mejia languishes in the Yuba County Jail.

Ms. Mejia is only one of many immigrants confined in an irrational detention system. On any given day, over 30,000 immigrants are locked up in facilities around the country as they fight their deportation cases. Many are subject to mandatory detention and are denied even a hearing before an immigration judge to determine whether their detention is justified. This overuse of incarceration not only shatters immigrant families, but also squanders taxpayer money.

As almost everyone acknowledges, our immigration system is in need of reform. In addition to providing a pathway toward citizenship to the many who already contribute to our culture and communities, reform must also include common sense solutions to our current unconstitutional, inhumane, and wasteful immigration detention practices.

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FOR IMMEDIATE RELEASE
February 06, 2013

CONTACT: media@dcaclu.org

WASHINGTON – President Obama has reportedly ordered the Justice Department to give the House and Senate intelligence committees the secret legal opinion justifying the extrajudicial killing of American citizens suspected of being a threat to the United States.

“While this is a small step in the right direction, democratic transparency requires President Obama to make the full memo available to the public. The United States is not a nation of secret laws, and a memo authorizing the killing of American citizens is too important to keep from the American people,” ACLU Senior Legislative Counsel Christopher Anders said. “Everyone – not just select members of Congress – has a right to know when the government believes it can kill American citizens. This concession has taken far too long and falls far short of President Obama's commitment to transparency he pledged to abide by since becoming president.”

Confirmation Hearing on John Brennan for CIA Director Provides Opportunity to Examine Brennan’s Role in Harmful Programs

FOR IMMEDIATE RELEASE
February 06, 2013

CONTACT: media@dcaclu.org

WASHINGTON – At Thursday's confirmation hearing of John Brennan to lead the CIA, members of the Senate Intelligence Committee should push for more details about the U.S. government’s targeted killing program and his role in its development and implementation, the American Civil Liberties Union said today. These issues, raised anew by the leak of a government white paper, are on top of the longstanding concerns about what role Brennan may have played in torture, extraordinary rendition, and secret prisons during his tenure at the CIA.

“No one should be satisfied with a 16-page summary white paper instead of the 50-plus page original Justice Department opinion. The senators should ask John Brennan what is in the more than 30 missing pages of analysis – which was apparently significant enough that the Obama administration went to the trouble of writing a new shorter memo instead of simply releasing the original memo,” said ACLU Senior Legislative Counsel Christopher Anders. “Brennan has been something of a Forrest Gump of toxic national security policies, having been in the room when everything from torture to the killing of an American citizen was being debated. Senators should not be legislating in the dark, and they should not vote on his nomination until all Americans know whether the decisions Brennan made at CIA headquarters and in his White House office comply with our laws and uphold basic American values.”

Brennan, the White House advisor on homeland security and counterterrorism, has repeatedly been described in the press as an architect of the Obama administration’s expansive killing program. This week NBC News released a Justice Department white paper that summarizes a secret memo outlining the government’s framework for targeting and killing American citizens suspected of terrorism far from any battlefield and without due process, judicial review, or any “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” The ACLU said the white paper is a chilling document that demands a complete explanation from Brennan, as well as the full release of the original Office of Legal Counsel memo supporting the extrajudicial killing of an American citizen.

“The Senate has to get to the bottom of the killing program. Under Brennan’s leadership, the killing program has left in its wake three dead American citizens, thousands of others dead across two continents, and an abandonment of the rule of law. The widespread killing of people far from any battlefield, based only on the orders of a high-level official, not only endangers American values – it creates a more dangerous world,” said Anders.

Last year was jam-packed with stories of companies making costly mistakes on user privacy and free speech. To help companies get a fresh start in 2013, the ACLU of California has just released the new edition of Privacy and Free Speech: It's Good for Business.

This primer (and companion website) is a practical, how-to guide illustrating how businesses can build privacy and free speech protections into their products and services – and what can happen if they don't.

The guide features dozens of real-life case studies from A(mazon) to Z(ynga) and updated recommendations for policies and practices to take the guesswork out of avoiding expensive lawsuits, government investigations, and public relations nightmares. It walks companies through essential questions and lays out steps to spot potential privacy and free speech issues in products and business models and address these issues head-on.

No company wants to get insta-hate for poorly thought-out policy decisions, lose tens of thousands of domain customers like Go-Daddy, or get hit like Google with a $22.5 million dollar fine by the Federal Trade Commission. It's far better to be on the flip side, garnering praise like small search engine DuckDuckGo for having strong privacy practices or Twitter for safeguarding the free speech of users. The tips in the ACLU guide can help companies start 2013 off right, avoid preventable mistakes, and build customer loyalty.

Five things companies can do to protect user privacy and free speech:

• Respect your data.
  Companies should carefully evaluate the costs of collecting and retaining data to avoid the fallout, lawsuits, and government fines that Path suffered for silently uploading users' contacts.
• Stand up for your users' rights.
  Companies can earn public praise and user trust for protecting user privacy rights like Amazon or for supporting free speech like Facebook.
• Plan ahead.
  Incorporate privacy and security from start to finish, and evaluate these practices as the company grows.
• Be Transparent.
  Give users the ability to make informed choices by letting them know what data you collect, and how it can be used, shared, or demanded by the government. Transparency reports like Google's are important tools.
• Encourage users to speak freely.
  Give users control over the content they access and the tools they use rather than censoring content like PayPal.

Baking in strong privacy and free speech protections isn't just the right thing to do – dozens of recent controversies highlight just how important it is for business too. By learning from other companies' mistakes and building on their privacy and free speech successes, businesses can hopefully make 2013 a profitable and privacy and free speech-friendly year for everyone.

View the primer online at aclunc.org/business/primer or download a pdf copy.

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In April 2011, the White House set forth a proposed "National Strategy for Trusted Identities in Cyberspace," or NSTIC. The document was a proposal to create a mechanism by which people could identify themselves online to another party with certainty—a long-elusive goal that has been talked about and pursued by the private sector and "identity community" for many years, without success.

I explained my initial take on this proposal in this January 2011 blog post, and little has changed. In brief, the creation of a rigorous online identity system, even though it is not envisioned as being government-run, has a very real potential to become a de facto mandatory online national ID and to eviscerate online anonymity, which has been such an important part of the internet's vibrancy. On the other hand, such a tool could have good applications, and if the administration's vision does not take hold, there is a strong chance that Facebook Connect or some other private sector alternative may fill the gap—and without any of the privacy protections that the administration has consistently said should be part of this system. Amazing new cryptographic privacy techniques have been developed that, if incorporated into an identity system, would not only be better than what private-sector alternatives are likely to generate, but conceivably could be better than what now exists.

The bottom line is that if everything is done perfectly, an online identity system could be a good thing.

Otherwise, it's likely to be a disaster.

The administration has launched one of its "multi-stakeholder processes" to attempt to create actual concrete proposals and standards for this online identity "ecosystem" (it is envisioned as being made up of a variety of private parties operating under shared standards, not a single centralized government or private operator).

As I have noted before, this concept of a multi-stakeholder process is the ultimate expression of an interest group liberalism theory of government, in which the sum total of all the vectors of private interests produces the public good. But there's no particular reason to believe that that will be the case. In theory it sounds good to get all interested parties together in a room and let them hammer out a compromise solution that works for all of them. There are, however, several problems with this:

• It requires enormous time and resources to fully participate in this process. Stakeholders are now gathered in Phoenix for a third multi-day meeting, and the process has consumed countless other hours of participants' time in meetings of numerous committees—and up to this meeting has really only so far addressed procedural questions about the ground rules.
• The outcome of such a process may be heavily dependent on who shows up, and in what numbers. The NSTIC process is open to all, and the corporate sector makes up a very large proportion of the participants (I don't know exactly how large). Companies can afford to devote personnel and other resources that pose much more significant burdens on nonprofit public interest groups. (That said, the interests of the corporations represented do vary, and many individual corporate representatives are very thoughtful about privacy issues.)
• There is an overarching public interest that may not be adequately or proportionately represented by the powerful interest groups that are able to participate in such a process.
• Sometimes, conflicting interests just can't be squared. When different stakeholders' interests are diametrically opposed, there is nothing magic about getting representatives of those interests together in a room. Their desires may still be zero-sum.

An extended, cumbersome, time-consuming process for trying to hammer out solutions to highly contentious issues is also, one suspects, the perfect refuge for politicians who (as is so often the case due to the nature of their job) are trying to please all sides in a dispute and delay being forced to take sides. It may be a new variation on the old political fudging tactic: "when in doubt, create a commission."

All that said, a multi-stakeholder process may be a somewhat natural fit in this case. Since we don't want the government running an online identity system, and any successful identity network will have to consist of a broad ecosystem with multiple providers rather than a narrow system run by one company, it does makes sense to figure out what kind of proposal will fit with enough diverse parties' interests to be a real, viable thing. Nevertheless, many of the problems I list above appear to apply. At the same time, the administration seems to recognize this fact, and has done a good job in helping shape the process to compensate. For example, the process includes a privacy committee (which I am on) that has special powers to review work product. (Of course, the privacy committee is itself open to all).

I am in Phoenix this week for the third plenary meeting of the Identity Ecosystem Steering Group, or IDESG, as the multi-stakeholder group is called. The group is finally moving beyond process issues, and actually begin trying to build a proposal. Although as I've said we are deeply concerned about this project of creating an online identity system, we are engaging in the process because if it is done right it could be neutral—or just possibly even a plus—for online freedom. Stay tuned!

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This was originally posted on the American Constitution Society blog.

The Hill broke a fascinating story last week: many major email providers are already requiring a warrant for the content of the communications they hold. What you say, this doesn't sound fascinating at all? It really is—just bear with me.

For the last several months the Senate Judiciary Committee has been fighting over this precise issue: how to update the nearly three-decades-old Electronic Communications Privacy Act (ECPA). Chairman Patrick Leahy (D-Vt.) has long sought a standard where all communications and content must meet the warrant standard. That would mean information in Gmail accounts, Amazon cloud storage and text messages sent through Verizon would all have to meet the same standards—a warrant based on probable cause—that police currently need to search a home. But when Leahy brought the issue before the full committee last Congress, the response from law enforcement was that the proposal would have a dire impact on police practices.

Some local law enforcement claimed it would delay investigation in cases of missing children. The Federal Law Enforcement Officers Association expressed "profound disappointment," and the Federal Bureau of Investigation Agents Association worried it "could hamstring critical law enforcement efforts." Legislation to amend the statute with a warrant was voted out of committee but never got to the floor for a vote. While the vote was bipartisan, some Republicans expressed reservations about the legislation and the expectation that all of this should be revised in the new Congress.

Now here's what's fascinating. After Google released its transparency report, highlighting how many law enforcement orders it gets and the need to reform ECPA, The Hill called several other providers. It turns out that—in addition to Google—Facebook, Microsoft and Yahoo all require a warrant. It seems that they were persuaded by a 2010 appellate court decision (a case called United States v. Warshak) that ruled that not requiring a warrant would violate the Fourth Amendment of the Constitution.

So which is it? Is the sky falling as law enforcement seems to maintain or is this the de factolaw already, at least for some providers? The answer is a big deal. As Americans move everything online—photos and correspondence, office memos and friend lists—they are also moving it to an area with uncertain legal protections, one where police have often argued that they can see these communications without a warrant. The stakes are high. As the scandal that resulted in the resignation of General Petraeus emphasizes, the contents of emails can ruin lives and careers, even (or especially) when no one is ever actually arrested or charged with a crime. The need for privacy in an individual's communications is why the Fourth Amendment guarantees an individual the right to be "secure in their persons, houses, papers, and effects."

As this debate goes forward, at least one senator has already cast doubt on whether the providers' practices are okay. Law enforcement has said they are "butting heads and rulebooks with both the email providers" on warrants for electronic communications. It's clear that there will be further debate, but given that the status quo seems to be one where privacy is protected and law enforcement isn't unduly hindered, shouldn't we make it the clear and unequivocal law so everyone is guaranteed the protections of the Constitution?

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Yesterday, the Open Society Justice Initiative (OSJI) issued a comprehensive report laying out the scope of the CIA's extraordinary rendition, secret prison and torture program. The report, following up on the ACLU's 2012 Torture Report, traces the evolution of the program, through which the CIA kidnapped terrorism suspects from around the world, flew them secretly to "black sites" – where they were held incommunicado without charge or trial – and tortured them. The OSJI report reveals that 54 nations, more than a quarter of the world, directly participated in the torture program, including through housing CIA prisoners on their soil, where they were often tortured; helping kidnap terrorism suspects and ship them overseas without any legal process; and allowing CIA planes to use their airspace and airports for those kidnapping missions. (Check out the report to learn which countries participated, and what types of assistance they offered). And it compiles the largest, most detailed list yet of the men and women thrown into these horrific black holes, naming 136 victims, many of whose whereabouts remain unknown today.

But even the impressive OSJI report is not the full story; the CIA continues to cloak the entire truth in shameful secrecy, including suppressing the statements of torture victims who remain in United States custody (with the acquiescence of a military commissions judge). We are urging the Senate Intelligence Committee to release a 6,000-page classified report it has adopted that details the CIA torture program, to ensure that Americans know all the facts about what was done in our names (click here to add your voice).

While President Obama outlawed the torture techniques used by the CIA, he has to date refused to hold anyone accountable for these egregious violations of domestic and international law, stating, "We need to look forward as opposed to looking backwards." That decision has sent the dangerous message has not only prevented accountability, but set a terrible example for the world, eroded America's reputation and undercut our claims to uphold the rule of law.

The ACLU has been at the forefront of accountability efforts for these violations of domestic and international law, through our groundbreaking Freedom of Information Act requests, which have forced the government to release tens of thousands of pages of documents on the torture program. Our efforts have also included litigation on behalf of victims; advocacy to honor the courageous public servants who stood against the torture program; and pressure for a full criminal investigation of those who devised, orchestrated and implemented the torture program, followed by prosecutions where there is sufficient evidence. We will continue to press on all these fronts until the United States returns to the rule of law and provides adequate redress to the dozens and dozens of people so brutally abused.

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The courts have a crucial role to play in determining the lawfulness of U.S. drone killings of three American citizens in Yemen in 2011, the ACLU and the Center for Constitutional Rights argued in a brief filed last night in a lawsuit challenging the killings (you can read the brief here).

Our lawsuit charges that U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi were killed in violation of the Constitution's fundamental guarantee against the deprivation of life without due process of law. In December, the government filed a motion to dismiss the case, arguing, in essence, that the courts should not be involved in determining the lawfulness of the targeted killing of U.S. citizens. As we say in the brief filed yesterday:

This case concerns the most fundamental right the Constitution guarantees to citizens: the right not to be deprived of life without due process of law. Defendants respond with various arguments for dismissal of the case, but they all boil down to a single assertion: The Executive has the unilateral authority to carry out the targeted killing of Americans it deems terrorism suspects—even if those suspects do not present any truly imminent threat, even if they are located far away from any recognized battlefield, and even if they have never been convicted (or even charged) with a crime.

The filing of the brief came just one day after the release by NBC News of a Justice Department white paper, which summarizes a secret Department of Justice legal memo purportedly justifying the addition of Anwar Al-Aulaqi to the government's secret kill lists. (We're separately seeking that legal memo in a Freedom of Information Act lawsuit).

The unchecked authority the government claims is dangerous, and the potential for abuse is clear. Under our Constitution and its system of checks and balances, the executive branch cannot decide alone that it can strip a citizen of the right to life. As the Supreme Court ruled in Hamdi v. Rumsfeld, "[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

The targeted killing program is conducted in near-total secrecy. In our lawsuit, the defendants argue, in essence, that the government can kill citizens without presenting evidence to any court before or after a killing is carried out and without even acknowledging to any court that their claimed authority to kill has been exercised.

But as we say in response, "Defendants' argument that the Judiciary should turn a blind eye to the Executive's extrajudicial killing of American citizens misunderstands both the individual rights guaranteed by the Constitution and the courts' constitutional duty to safeguard those rights from encroachment."

For more on 16 year-old Abdulrahman Al-Aulaqi's killing, watch this video of his grandfather, one of our clients.

Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see You Tube's privacy statement on their website and Google's privacy statement on theirs to learn more. To view the ACLU's privacy statement, click here.

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