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Operation Streamline

Mon, 08/05/2013 - 11:58am

This was originally posted on CAMBIO.

To understand Operation Streamline, it helps to visit the Judge Roy Bean Saloon & Museum, 60 miles north of Del Rio. This corner of Texas needed a local justice of the peace in the 1880s and Roy Bean took the job. Bean deemed his saloon a courthouse and dispensed what the state's tourism department now describes as "his own brand of justice…with strange, but expedient decisions."

Efficiency was king. Judge Bean had a saloon to run, after all. When he needed a jury, he called one from among his customers. Whatever fines he imposed, he pocketed.

Once, when an Irishman killed a Chinese railroad worker and was sent to Judge Bean to be tried for manslaughter, a mob of 200 white people demanded the Irishman's immediate release. Judge Bean set the Irishman free, holding that while homicide was the killing of a human being, there was no law against killing a Chinaman.

But that was a long time ago, and thank goodness that sort of thing doesn't happen anymore.

The area where Judge Bean set up his saloon-courtroom is now anchored by Del Rio and its sister city Ciudad Acuña. The area got hot as a crossing point around 2004, and the Border Patrol ran out of bed space to hold people coming from points further south than Mexico (those from Mexico were usually returned back across the border the same day). The agency came up with an idea for a quick fix: ask the US attorney to criminally prosecute people, so they can be shipped off to the area's federal prison facilities. With new for-profit prisons popping up all over Texas, there were plenty of available beds in these contract facilities.

Del Rio Sector's Border Patrol chief approached the US attorney, who balked at the idea of shifting the problem of unauthorized border crossings into criminal court. Undeterred, the Border Patrol chief went up his chain of command to DHS Secretary Michael Chertoff. This was in December 2005, and Chertoff was more than happy to sign off on anything that wasn't about Hurricane Katrina. Operation Streamline – which more accurately would have been called Operation Borrow Some Jail Cells for Awhile – was intended to last 90 days.

From the start, Operation Streamline was infused with the spirit of Judge Roy Bean. Expediency was the top priority. Rather than a single defendant sitting with his federal public defender, facing off against the U.S. attorney in front of the federal judge, Operation Streamline filled up the courtroom with 80 people at a time and criminally prosecuted them en masse.

Streamline took hold in the Del Rio sector and spread like a zombie attack. The Yuma Sector in Arizona got Streamline a year after Del Rio. It then spread to the Laredo Sector, the Tucson Sector, the El Paso Sector, and the Rio Grande Sector in south Texas. In each of these places, anywhere from 20% to 80% of the people apprehended by the Border Patrol are now inserted into the federal criminal justice system rather than handled in the traditional way, through voluntary departures and the civil immigration system.

It's an enormous number of cases – immigration prosecutions now make up a third of the federal criminal docket. Where federal courts used to be reserved for the most serious criminal cases, it's now being used to process the most trivial immigration violations. It's as if a bunch of kazoo players stormed Lincoln Center and started tooting their kazoos alongside the New York Philharmonic.

I went to watch the Streamline proceedings in Tucson, and it's as bad as described by Dan Rather, NPR, retired U.S. Magistrate Judge James Stiven, Rinku Sen, and the Berkeley's Warren Institute. People were called up ten at a time to give their guilty pleas, then shuffled off to serve their 30-180 day prison sentences. The US attorney barely looked up throughout the proceedings; he just moved ten file folders from one side of his table to the other with each batch of pleas. (The one indication that this was still federal court: they were very nice file folders.)

The judge processed 74 criminal convictions in two hours. Judge Roy Bean would have been proud. All that was missing was the congratulatory round of whisky.

Proponents of Operation Streamline point to the dramatic drop in apprehensions along the border and credit the deterrence effect of a criminal conviction. But numerous studies, including this one by the buttoned up analysts at the Federal Reserve Bank of Dallas, have established that the deterrence effect is quite small – nearly the entirety of the drop in apprehensions is due to the bad economy.

What Operation Streamline has done is make money for the for-profit prisons, by providing a steady stream of new prisoners. It's also driven up the price of coyotes. A California Law Review article reports that the federal defender in Las Cruces calls Streamline a "coyote employment bill," with nearly everyone crossing the border now paying an average of $2500 to professionals who claim to have secured clear routes.

One federal judge, at least, is having second thoughts about his participation in this farce. Judge Robert Brack, presiding over court in Las Cruces, recently told the Wall Street Journal he regrets his role in sentencing thousands of people a year on junk criminal charges. "Every day I see people who would never have been considered as criminal defendants two years ago," he said.

These men and women, many of them convicted for attempting to return to their families in the United States, have now been labeled as "criminal aliens." This excludes them from any of the legalization proposals being considered by Congress. To correct the injustice, Judge Brack wants Congress to create a "Judge Brack exception": anyone separated from their family after being sentenced by him should be allowed back in and legalized.

Immigration reform should certainly include people sentenced under Operation Streamline, but DHS doesn't need to wait on Congress to end this experiment. Someday the tourist brochure for the Del Rio federal court will describe Operation Streamline as "a peculiar brand of justice…with harmful but expedient decisions." Visitors will chuckle at the time when federal judges lost their minds and turned their courtrooms over to the Border Patrol.

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DEA Conceals Reliance on Surveillance Conducted by Intelligence Agencies

Mon, 08/05/2013 - 9:36am

CONTACT: 212-549-2666,

NEW YORK - The U.S. Drug Enforcement Administration is using secret surveillance tactics - including wiretaps and examining telephone records - to make arrests while concealing the source of the evidence from judges, prosecutors, and defense attorneys, according to a story published today by Reuters. In cases where this intelligence is used to make an arrest, the DEA trains law enforcement to recreate the investigative trail in order to conceal the origins of the evidence.

"The DEA is violating our fundamental right to a fair trial," said Ezekiel Edwards, director of the American Civil Liberties Union's Criminal Law Reform Project. "When someone is accused of a crime, the Constitution guarantees the right to examine the government's evidence, including its sources, and confront the witnesses against them. Our due process rights are at risk when our federal government hides and distorts the sources of evidence used as the basis for arrests and prosecutions."

"When law enforcement agents and prosecutors conceal the role of intelligence surveillance in criminal investigations, they violate the constitutional rights of the accused and insulate controversial intelligence programs from judicial review," said Jameel Jaffer, ACLU deputy legal director. "Effectively, these intelligence programs are placed beyond the reach of the Constitution, where they develop and expand without any court ever weighing in on their lawfulness. This is inappropriate, dangerous, and contrary to the rule of law."

Joint Statement on First Anniversary of Oak Creek Gurdwara Shooting

Mon, 08/05/2013 - 7:00am

On August 5, 2012, a gunman with neoNazi ties stormed into a gurdwara in Oak Creek, Wisconsin, and opened fire killing six American Sikh worshippers and injuring three others. It was one of the most lethal attacks on an American house of worship since the 1963 bombing of the 16th Street Baptist Church in Birmingham, Alabama.

One year after one of the deadliest hate crimes in our nation's history, The Sikh Coalition, Muslim Advocates, The Leadership Conference on Civil and Human Rights, AntiDefamation League, Interfaith Alliance, Rights Working Group, and American Civil Liberties Union remember the victims and their families. We hope that our national leaders will address the escalating crisis of violence and discrimination against religious minorities in America. Too many lives have been destroyed because of hate violencefrom the shooting at the Oak Creek gurdwara to the multitude of violent attacks on members from the Arab, Muslim, Sikh, Jewish, and South Asian American communities. Approximately 100 organizations and 37 members of Congress have called on President Obama to directly tackle the problem and host a summit to find solutions on how to protect religious minorities and prevent violence and discrimination. Now, more than ever, President Obama's leadership is critical to this issue; we hope that he will take action and that tragedies such as these never happen again.

This Week in Civil Liberties (08/02/2013)

Fri, 08/02/2013 - 12:47pm

Why should we care about metadata?

Which federal court ruled this week that the government can track your cell phone without a warrant?

Which state is set to execute a mentally ill man on Monday, despite the constitutional prohibition?

Which whistleblower was acquitted of aiding the enemy, but convicted of several violations of the Espionage Act this week?

Which politician broke his campaign promise that he would oppose new abortion restrictions when he signed the #motorcyclevagina bill?

My Life in Circles: Why Metadata is Incredibly Intimate

One of the most disingenuous arguments in the aftermath of the NSA spying revelations is that the American people shouldn't be concerned about the government hoovering up its sensitive information because it's only metadata--or a fancy way of saying data about the data.

"This is just metadata," Senate Intelligence Committee Chairwoman Dianne Feinstein assured the American people, referring to the NSA's bulk collection of Americans call records. "There is no content involved." President Obama and his national security officials have made similar assurances.

Feel better? You shouldn't and here's why.

Federal Appeals Court Rules the Government Can Track Your Cell Phone without a Warrant

It has long been the ACLU's position that the government must obtain a warrant based on probable cause before engaging in surveillance of people's historical cell phone location information. This week, we were dealt a setback. Over a strong dissent, the Fifth Circuit Court of Appeals held that individuals have no reasonable expectation of privacy over their location data. According to the court, law enforcement agents do not need to obtain a warrant to get this information, ruling instead that a less protective standard suffices.

Florida Will Kill Severely Mentally Ill Man Unless Supreme Court Intervenes

Unless the United States Supreme Court intervenes in the next few days, Florida will execute John Ferguson on August 5, despite a well-documented history of his psychosis spanning over 40 years.

Beyond Bradley Manning: The Government Has Made Its Point

The first thing to be said about Bradley Manning's trial is that the entire exercise was unnecessary. There was no real factual dispute, since Manning admitted he had leaked the documents to WikiLeaks, and he offered guilty pleas that would have allowed a sentence of up to 20 years.

Did the government think 20 years in prison was an insufficient punishment for Manning? Maybe so.

But the more likely explanation for the government's refusal of the plea is that it hoped to establish the dangerous precedent that leaks to the press could be equated with "aiding the enemy."

North Carolina's Badge of Dishonor

This week, North Carolina Governor Pat McCrory broke his word and ignored his constituents when he signed the #motorcyclevagina bill, which includes sweeping anti-abortion provisions that could force clinics across the state to close.

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Breaking the Addiction to Incarceration: Weekly Highlights

Fri, 08/02/2013 - 12:41pm

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


The Bureau of Justice Statistics reported that the U.S. prison population fell for the third straight year in 2012. During 2012, the national prison population fell by 27,770, or 1.7 percent. Even larger was the decrease in state prisons, which fell by more than 29,000. That decline, approximately half of which occurred in California, was offset by an increase in the federal prison system of 1,453 prisoners. You can read the full BJS report here.

Federal news

This week, Sens. Dick Durbin (D-IL) and Mike Lee (R-UT) introduced the The Smarter Sentencing Act of 2013. The bill demonstrates bipartisan support for addressing the causes of unsustainable and unnecessary growth in the federal prison population. It takes an incremental approach to modernizing drug sentencing law by reducing lengthy sentences for certain people convicted of non-violent offenses. The legislation would:

  • Expand the existing federal "safety valve": The safety valve is one of the only means for a judge to sentence below a mandatory minimum in appropriate cases. This bill would make more non-violent drug offenders eligible for the safety valve, thus allowing judges to use more discretion to determine sentences.
  • Reduce mandatory minimum sentences for drug offenses: The bill would lower existing mandatory minimum sentences for certain drug offenses, which would help alleviate the growth of prison costs and overcrowding.
  • Apply the Fair Sentencing Act to those currently serving sentences for drug offenses: The bill would allow individuals to petition courts for a review of their case based on the Fair Sentencing Act, which was enacted in 2010. The bipartisan Act reduced the sentencing disparity that existed between crack and powder cocaine offenses. However, some individuals are still serving sentences that Congress has determined to be unjust and racially disparate. In 2007 and 2011, federal courts successfully reviewed some crack cocaine sentences based on changes to the Sentencing Guidelines. This legislation would allow individuals to have their sentence reviewed by courts to determine if they deserve a sentence consistent with current law.

U.S. Rep. Jason Chaffetz (R-UT) introduced H.R. 2656, the Public Safety Enhancement Act of 2013. The bill, which has been cosponsored by several House Democrats and Republicans, would allow federal prisoners to earn reductions in their sentences in exchange for completing certain programs.

The ACLU submitted public comments to the U.S. Sentencing Commission (USSC) in reply to its request for comments on its proposed priorities for the next year. We propose that the USSC recommend that Congress reduce the severity and scope of mandatory minimum penalties; support an expansion of the safety valve for nonviolent offenders; amend the sentencing guidelines for drug offenses; and more. Read our full letter here.

State news

In July, a number of states either passed laws or are advancing bills that could safely reduce state adult correctional populations. You can review recent activity in state legislatures to reduce prison populations, with contextual information about each state, at our state map. Below are some highlights:

  • Alaska is considering SB 64, which among other things would create a sentencing commission and allow prisoners in jail to earn sentence reductions.
  • California's SB 649, which would give prosecutors the discretion to charge possession of any drug as a misdemeanor rather than a felony, awaits a vote by the House. The bill has already passed the Senate.
  • The District of Columbia Council is considering a bill to make possession of less than one ounce of marijuana a civil offense punishable by a $100 fine.
  • Massachusetts is considering S. 667, which would repeal mandatory minimum sentences for nonviolent drug offenses, as well as H. 1645, which would reduce the "school zone" area within which drug offenses carry stiffer sentences.
  • Oregon's legislature passed HB 3194 which, among other things, reduces some drug- and property-offense sentences and allows persons on probation to earn sentence reductions. Also passed was SB 463, which allows lawmakers to request a racial impact statement—an estimated impact on racial disparities—for a bill.

In the coming year, a number of state task forces or working groups will conduct research and issue recommendations for criminal justice reform. Those states include Georgia, Idaho, Louisiana, Michigan (more here), Mississippi, and New Jersey.

Wisconsin Gov. Scott Walker vetoed a budget provision that would have allowed for-profit bail bondsmen to operate in Wisconsin for the first time since 1979.

Justice for Trayvon Martin following the acquittal of George Zimmerman will require more than short term responses. The ACLU is committed to continuing to fight the overcriminalization of communities of color and ending racial profiling. Much has been written following the verdict; here are a few examples of some of the incisive commentary:


In July, a number of states either passed laws or are advancing bills that could safely reduce state youth correctional populations. Below are some highlights:

  • California is considering SB 260, which would require the parole board to review the cases of people who are serving extreme sentences in adult prisons for crimes committed when they were younger than 18. The bill passed the Senate and is now being considered in the House.
  • Massachusetts is considering S. 26, which would raise the age of criminal court jurisdiction from age 17 to 18.
  • Mississippi's legislature passed HB 1043, which make it possible for youth convicted of certain felonies to expunge their records.
  • Texas' legislature passed SB 2, which replaces mandatory life without parole for juveniles convicted of capital crimes with a mandatory sentence of life with the possibility of parole after 40 years.

The Indiana Supreme Court ruled that before juvenile court judges place a minor on sex offender registries, the court must find clear and convincing evidence that a minor is likely to reoffend.

Pennsylvania's State Supreme Court enacted a rule change that prohibits juveniles from being held in an adult jail, except in cases in which the juvenile has been charged as an adult.


States are advancing bills that could reduce the number of prisoners held in solitary confinement. Here are some promising developments from the last month:

  • California‘s SB 61 was approved by the Assembly Public Safety Committee. The bill, which has already passed the Senate, would impose strict limits on the solitary confinement of youth.
  • Massachusetts is considering S. 1133, which would restrict the use and duration of solitary confinement.

The ACLU of Colorado released a new report, "Out of Sight, Out of Mind: Colorado's Continued Warehousing of Mentally Ill Prisoners in Solitary Confinement, which finds that in recent years, an increasing proportion of Colorado prisoners held in solitary confinement suffer from mental illnesses. Read our press release for more information.

The ACLU released another report this month, "A Death before Dying: Solitary Confinement on Death Row," the first comprehensive review of the legal and human implications of subjecting death row prisoners to solitary confinement for years. At the link, you will find a discussion of solitary conditions on death row and a blog and video from Anthony Graves, who spent 12 years in solitary confinement on death row in Texas before being exonerated.

In protest of California's overuse of solitary confinement, thousands of California prisoners went on a hunger strike that is still ongoing. The ACLU sent out a petition that urges Corrections Secretary Jeffrey Beard to end the use of long-term solitary confinement.

PBS aired Herman's House, a documentary about a man who has spent 42 years in solitary confinement in Louisiana state prison. National Prison Project Director David Fathi wrote a reflection for PBS, which you can read here.


  • The South Carolina Department of Corrections has announced that it is abolishing its policy of HIV segregation. The announcement marks the end of the era of HIV segregation in America's prisons, as well as the culmination of a quarter-century long campaign by the ACLU to end HIV segregation throughout the nation.
  • The U.S. Department of Justice submitted a letter to the U.S. Sentencing Commission asking the commission to draw up simpler guidelines, reform mandatory minimums and the safety valve exception, reduce sentences for low-level drug offenses, and establish alternatives to prison for some offenses.
  • The National Employment Law Project released a new report, "Wanted: Accurate FBI Background Checks for Employment." The report exposes the FBI's failure to ensure that its records are accurate and complete, and the devastating impact faulty records have on workers caught in the criminal justice system. Read NELP's press release for more.

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108 Degrees and Rising

Fri, 08/02/2013 - 12:08pm

This was originally posted on CAMBIO.

We've all played Would you rather? Would you rather have a third eye or a second nose? Would you rather smell like a wet dog every third day, or a ham omelette every day? Would you rather wake up one morning to discover you're married to a hipster, or that you are a hipster?

Here's one more: Would you rather abandon your wife and five children, ages 18 to 5, or walk five days through the desert in south Arizona to get back to them?

Alfonso Martinez Sanchez chose to walk through the desert. Alfonso had come to the United States as a teenager, and over the course of twenty years, built a life in Vista, California with his wife Juana. Last spring, she sent him to the corner store for milk and tortillas. A sheriff's deputy asked Alfonso for his ID and called the Border Patrol. The agent pressured Alfonso into signing a voluntary departure form, and by nightfall, he had been dropped off in Tijuana.

With five children at home in Vista, Alfonso was desperate to get back. He first tried to cross back into the United States near Tijuana. He was caught and "laterally deported" – flown clear across the top of Mexico to Matamoros, the farthest point east on the U.S.-Mexico border. Alfonso immediately boarded a westbound bus and made another try, this time through the Arizona desert.

Alfonso's decision to try and walk into the U.S. through such an arid, dangerous stretch of land was exactly as predicted – and intended – by Operation Gatekeeper. As designed by the Border Patrol's San Diego Sector, the point of Gatekeeper since its inception in 1994 has been to push people away from San Diego and into "more hostile terrain…more suited for enforcement."

Earlier this week, I drove up, down and across this "more hostile terrain" of southern Arizona. It was so hot the roadrunners were walking. There were places near Yuma that look like the one relentless sand dune I'd imagined. The rest of the Arizona desert, though, is filled with greasewood shrub, mesquite and palo verde trees. Scrubby little burro-weed cover the ground, and the ocotillo's slender green branches reach high up into the air. I was surprised at how green everything is, in places almost lush.

Suitable for a long hike, were it not for the temperature: 108 degrees and rising.

As crossing routes shifted into southern Arizona, the Border Patrol added checkpoints and patrol routes. People changed routes to circumnavigate them, and crossings got longer and more complicated. Many reports and groups – among them the ACLU and Mexico's National Commission of Human RightsHumane BordersNo More Deaths, and Coalicion de Derechos Humanos – agree that Operation Gatekeeper and other initiatives designed to funnel people into remote crossing points are largely to blame for more than 5,000 deaths.

But there's another cause of death that has, in recent years, become perhaps as important as Gatekeeper. It's the Obama administration's dramatic increase in deportations, which includes a large number of long-time residents. A recent study by the University of Arizona found "a strikingly different portrait of deportees than the common conception of seasonal laborers and young single men with no real ties to the United States." Interviewing over a thousand recent deportees, the University of Arizona study found that, in fact, a large portion of the people now being deported are long-time residents of the United States.

For Alfonso and other long-time residents, their families, their work and their homes are all in the U.S. It's no wonder that 70% responded "Yes" when asked whether they planned to make the trip back to the U.S.

With the increased level of difficulty, what are the odds for these men and women?

There is no agreement about the total number of people who make it across the border each year – one of the sticking points in the debate over measuring "border security" – so the actual odds can't be calculated. One thing that can be determined from existing data, though, is that whatever the precise odds, they're getting worse. According to records kept by the Pima County of the Medical Examiner, someone starting out across the desert tonight is roughly twelve times more likely to end up dead compared to a dozen years ago.

It's a level of danger that has become impossible to ignore. This past Tuesday, Arizona's Senator John McCain was giving a pat answer about the importance of immigrants to the economy when he suddenly interrupted himself with this outburst (at 10:15):

By the way, sometime today or in the next few days, somewhere in southern Arizona, the border patrol or local authorities will come across some dead bodies. They'll come across dead bodies, of people who crossed our border, usually with coyotes who deserted them. This is not acceptable! It is not acceptable! It is not acceptable...

It's clear from the video that McCain is not faking it. He's genuinely upset by the deaths.

As he should be. This past year, 463 people died crossing the border. Of those, 171 died in southern Arizona. Among the 171 was Alfonso Martinez Sanchez, long-time resident of Vista, California, husband to Juana Garcia Martinez, father to Gladys Dominguez, age 18, Miguel Dominguez, Victor Martinez, Juan Carlos Martinez, and Katee Martinez, age 5.

Perhaps it was Senator McCain, with a close up view of thousands of deaths in Arizona, who shepherded into the Senate immigration bill a provision allowing certain long-time residents who were deported to return legally rather than through the desert. It's a very good provision.

Whether that provision eventually becomes law or not, the Obama administration can in the meantime do its part, and stop deporting people like Alfonso Martinez Sanchez in the first place. Maybe the administration is worried that reversing course and lowering the number of deportations now, after years of massive enforcement numbers, will be embarrassing. But would you rather, Mr. President, have egg on your face, or blood on your hands?

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Washington Gives Us Something to Get Excited About (No, Really!)

Fri, 08/02/2013 - 11:35am

If you care about criminal justice reform, you're coming off a really good month in Washington. Don't believe me? Here's what you have to get excited about:

  1. The U.S. Sentencing Commission released its preliminary report on the effectiveness of crack cocaine sentencing reform, and the numbers prove the changes are making a real impact in the lives of thousands of prisoners. More than 7,300 federal prisoners will be seeing their families sooner thanks to the new laws.
  2. Sen. Patrick Leahy (D-Vt.) announced a hearing on his own bill to give judges more discretion with mandatory minimum sentences: the Justice Safety Valve Act of 2013, which he introduced with Sen. Rand Paul (R-Ky.) earlier this year. The hearing will take place sometime in September.
  3. In another stroke of bipartisanship, Sen. Dick Durbin (D-Ill.) and Sen. Mike Lee (R-Utah) teamed up this week to introduce the Smarter Sentencing Act. This bill will reduce mandatory minimum sentences for some drug offenses, apply the Fair Sentencing Act to those currently serving sentences for crack cocaine offenses, and give judges more discretion to determine if people deserve mandatory minimum sentences.

The New York Times summed up these developments in a terrific editorial from today's paper:

This week, we began to learn that there are no costs, only benefits [to sentencing reform]… The average [sentence] reduction is 29 months, meaning that over all, offenders are serving roughly 16,000 years fewer than they otherwise would have. And since the federal government spends about $30,000 per year to house an inmate, this reduction alone is worth nearly half-a-billion dollars — big money for a Bureau of Prisons with a $7 billion budget. In addition, the commission found no significant difference in recidivism rates between those prisoners who were released early and those who served their full sentences.

The bottom line is clear: sentencing reform is smart reform. And with all of the positive steps Washington has taken in the last month, we're on our way to restoring fairness in the criminal justice system.

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Voter ID Trial Day 12: Closing Arguments

Fri, 08/02/2013 - 7:23am

Yesterday was the twelfth and final day of the voter ID trial. In front of a full courtroom, which included Secretary of State Carol Aichele, attorneys for both sides presented their final arguments to Judge McGinley.

Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia (PILCOP), argued for the petitioners. The law, she said, unreasonably burdens the cherished right to vote. Voting shouldn't be a test of whether people are willing to go to PennDOT multiple times or endure immense physical pain to get an ID. Pennsylvania's constitution, unlike the U.S. Constitution, specifically states that "no power… shall at any time interfere to prevent the free exercise of the right to suffrage."

Ms. Clarke walked the court through the various figures for people lacking PennDOT-issued ID, including testimony from Rebecca Oyler, until recently an official with the Department of State, who estimated four to five percent of registered voters (or 320,000-400,00 individuals) lack ID, to Secretary Aichele's statement at a recent legislative hearing that 3.5% of Philadelphia voters who voted in November 2012 lacked ID (if applied statewide, that would be 190,000), to petitioner's expert Dr. Bernard Siskin's estimate of 511,000 registered voters who lack ID. No matter who you ask, it is clear that at least a hundred thousand if not hundreds of thousands of registered voters are at risk of disenfranchisement.

Throughout her argument Ms. Clarke wove in stories of the real voters who would be disenfranchised if the voter ID law is allowed to go into effect. Voters like Marian Baker, an elderly Berks County woman who wanted to obtain a valid ID after she learned about the law. The last time she had renewed her ID she had to stand in line for four hours at PennDOT, but a leg injury prevented her from doing so again. She called PennDOT to explain her situation and asked for an accommodation, including obtaining an ID through mail, but was told she would have to wait "just like everybody else." Unaware that the injunction blocking enforcement of the law had been extended to the May 2013 primary, she did not vote in that election, mistakenly believing she did not have the necessary ID.

The commonwealth has argued that thanks to the "streamlined" process for obtaining a Department of State (DOS) ID at one of the 71 PennDOT locations around the state, voters can easily obtain the necessary ID for voting, said Ms. Clarke. But the Department of State's own "exceptions spreadsheet" shows that hundreds of voters who applied for the DOS ID left PennDOT empty-handed, and even using the commonwealth's figures (a major point of dispute during the trial), dozens of registered voters who applied for the ID before the November 2012 election either received the ID long after the election or never received it at all. If the voter ID law had been in effect, these legally registered voters would have been disenfranchised.

The commonwealth also failed to educate the public about the DOS ID. In its $4 million ad campaign, the Department of State chose not to include information about the existence of this "easily accessible" ID, nor how or where to obtain it. When asked about this oversight, Deputy Secretary for External Affairs and Elections Shannon Royer said they did not want to confuse voters by "talking about an ID most people had never heard of." Kurt Myers of PennDOT spoke of a "shared responsibility" that voters had to know what kind of ID they needed and where to obtain it, but if the information isn't provided, "how can people take that responsibility?" Ms. Clarke asked.

For those unable to obtain an ID, the law provides no safety net, said Ms. Clarke. Unlike some other states with voter ID laws, the Pennsylvania version does not allow a voter who shows up at the polls without an ID to sign an affidavit affirming his or her identity. Pennsylvania also lacks another critical safety net other states have – no-excuse absentee voting.

Alicia Hickok, an attorney with Drinker Biddle Reath, argued for the commonwealth. She said that state employees worked "tirelessly and diligently" to help voters and took their responsibilities seriously. The voter ID law was to protect the public good – not the good of individuals or private interests. The Department of Aging has been reaching out to seniors, the age group most of the petitioners' witnesses fall in to, to help them, she said.

Ms. Hickok disputed that large numbers of people lack acceptable ID, saying that petitioners' expert played "fast and loose" with the data, and pointed to the fact that college students can use their student IDs if they have expiration dates and that those in nursing homes and personal care facilities can use an ID printed by that facility. In her rebuttal, Ms. Clarke noted that many colleges still do not issue voter ID-compliant IDs, and two Department of State officials admitted they do not track which nursing homes and personal care facilities offer their residents IDs and therefore did not know how many of residents were actually able to obtain an ID.

Ms. Hickok's main argument was that the legislature was allowed to "regulate the franchise," and that the voter ID merely regulates the election process – it does not "deny the franchise." Requiring voters to show ID promotes integrity of the election. She cited Crawford v. Marion County Board of Elections, a 2008 case out of Indiana, in which the U.S. Supreme Court found that Indiana's voter ID law was constitutional.

In her rebuttal, Ms. Clarke noted that the challenge to Pennsylvania's voter ID law differs in several critical ways, including the fact that petitioners brought their suit under the Pennsylvania constitution and not the U.S. Constitution. In the Indiana case, petitioners did not provide testimony from a single witness who would be disenfranchised – in stark contrast to the Pennsylvania case, in which numerous witnesses testified.

When the fundamental right to vote is burdened, said Ms. Clarke, we have to weigh that against the justification. In this case, the commonwealth has not argued that there is fraud. Instead, they say it is about the "integrity of the election." Yet the Department of State's top career official overseeing elections, Jonathan Marks, testified that he was confident of the integrity of Pennsylvania's elections.

In the 16 months since the law was initially passed, despite numerous tweaks and attempts to improve the system, the state has still not been able to show that no one will be disenfranchised under the voter ID law. "It is time to put an end to this and enjoin this law," Ms. Clarke concluded.

During her closing arguments, Ms. Hickok did agree to extend the preliminary injunction blocking enforcement of the law through the November 2013 election. Petitioners are asking that the injunction continue until the case has been completely resolved. They are also asking that the "soft roll-out" aspect of the injunction, in which voters are asked for but not required to show ID, be eliminated going forward.

Following the two sides' closing arguments, the judge announced that the court was recessed and left. For several minutes, spectators and attorneys looked around in confusion, not sure if court would be coming back into session. Several minutes later, the bailiff stuck his head out of the door to judge's chamber and called out, "Adjourned!" With that, the voter ID trial finally came to a close.

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You May Have 'Nothing to Hide' But You Still Have Something to Fear

Fri, 08/02/2013 - 7:17am

This post was first published on

In the wake of recent news that the NSA is spying on Americans, I have been particularly struck by the argument that "if you've got nothing to hide, you've got nothing to fear."

At first blush, this argument might seem sound – after all, if the government is merely conducting anti-terrorism surveillance, non-terrorists shouldn't be affected, right? But if you look more closely, you'll see this idea is full of holes.

The "nothing to hide" argument mistakenly suggests that privacy is something only criminals desire. In fact, we choose to do many things in private – sing in the shower, make love, confide in family and friends – even though they are not wrong or illegal. Who would not be embarrassed if all of their most intimate details were exposed? Fences and curtains are ways to ensure a measure of privacy, not indicators of criminal behavior. Privacy is a fundamental part of a dignified life.

The "nothing to hide" argument also has things backwards when it suggests that we are all worthy of suspicion until proven otherwise. Our system of justice treats us all as innocent until proven guilty. That applies in everyday life – when the government wants to spy on our daily activities and private conversations – as much as it applies in court. The state bears the burden of showing there is a good reason for suspicion, not the other way around. The refrain "nothing to hide" should not be a license for sweeping government surveillance.

Even if you think you have nothing to hide, you may indeed have something to fear. You might fear for yourself. As Kafka so chillingly illustrates in "The Trial," the prospect of unwarranted government pursuit is terrifying. Or you might fear for our society. Living under the constant gaze of government surveillance can produce long-lasting social harm: if citizens are just a little more fearful, a little less likely to freely associate, a little less likely to dissent – the aggregate chilling effect can close what was once an open society.

Government surveillance can also have a direct harm on others – think of human rights workers or journalists who must work with people who fear government scrutiny, not because of wrongdoing but for political reasons. Imagine a liberal group arguing that in the wake of the recent IRS scandal, it has nothing to fear because the IRS is interested only in conservative groups. This argument would be myopic, missing the wider risks of government overreaching. (Need proof? The IRS has now admitted that it scrutinized liberal groups, too.)

Perhaps you remain unconvinced. You are sure that you have nothing to hide and you never will. You think my concerns about chilled speech and democratic accountability are overblown, and you think privacy concerns are exaggerated and unlikely to affect you or our society in any case.

But – and this is the biggest hole in the "nothing to hide, nothing to fear" argument – how can you know for sure?

In fact, you have no idea if you have something to fear or not, because you do not know what the government does with the data it collects. If the government keeps secret what it is collecting about you or why, you cannot correct potential errors. And if you know anything about our justice system, you know that errors are common. Transparency is partly about making sure the government's actions – its outputs – can be evaluated; but transparency is also about making sure the government's information – its inputs – is accurate.

When the government operates in secret, it is hard to know anything with confidence. There is, however, one thing you can say with 100% confidence: we need to know more.

We need to know more about what information the government is collecting about millions of innocent Americans. We need to know more about the secret legal interpretations that the government is relying on to monitor our communications. And we need to know more about what the government does with the trillions of bits of electronic data it is amassing in its files. We need these answers because, even if we have nothing to hide, that does not mean we want to live in a society where nothing is private.

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Raiding the "Corporate Store": The NSA's Unfettered Access to a Vast Pool of Americans' Phone Data

Fri, 08/02/2013 - 7:10am

The director of National Intelligence declassified three documents on Wednesday related to the NSA's mass collection of Americans' telephone records. One of these — a so-called "primary order" issued by the secret Foreign Intelligence Surveillance Court (FISC) — describes in new detail the rules that the NSA must follow when it collects and queries this trove of sensitive telephone data. What it reveals is not reassuring. Despite intelligence officials' repeated assertions that their access to Americans' phone records is extremely limited and tightly controlled, the primary order suggests NSA analysts can sift through far more telephone data — with far fewer restrictions — than government officials have let on in public. In particular, the primary order shows that NSA analysts have unfettered access to a pool of telephone data called the "corporate store," which likely contains millions of Americans' calling records.

Intelligence officials have repeatedly said that the NSA queries its call-records database only when there is "reasonable suspicion, based on specific and articulated facts" that an identifier — such as a telephone number — is linked to specific foreign terrorist organizations. They have frequently cited one statistic to back up these assertions: According to officials, the NSA queried fewer than 300 unique identifiers under this program in 2012.

As we have pointed out, though, even if the government ran queries on only 300 unique identifiers in 2012, those searches implicated the privacy of millions of Americans. Intelligence officials have explained that analysts are permitted to examine the call records of all individuals within three "hops" of a specific target. As a result, a query yields call information not only about the individual thought to be associated with a specific foreign terrorist organization, but about all of those separated from that individual by one, two, or three degrees. Even if one assumes, conservatively, that each person has an average of 40 unique contacts, an analyst who accessed the records of everyone within three hops of an initial target would have accessed records concerning more than two million people. Multiply that figure by the 300 phone numbers the NSA says that it searched in 2012, and by the seven years the program has apparently been in place, and it quickly becomes clear that official efforts to characterize the extent and impact of this program are deeply misleading.

This much we've known for several weeks. But thanks to the documents released yesterday, we now have a better idea about what happens to the information that's pulled up through queries. All of this information, the primary order says, is dumped into something called the "corporate store." Incredibly, the FISC imposes no restrictions on what analysts may subsequently do with the information. The FISC's primary order contains a crucially revealing footnote stating that "the Court understands that NSA may apply the full range of SIGINT analytic tradecraft to the result of intelligence analysis queries of the collected [telephone] metadata." In short, once a calling record is added to the corporate store, anything goes.

More troubling, if the government is combining the results of all its queries in this "corporate store," as seems likely, then it has a massive pool of telephone data that it can analyze in any way it chooses, unmoored from the specific investigations that gave rise to the initial queries. To put it in individual terms: If, for some reason, your phone number happens to be within three hops of an NSA target, all of your calling records may be in the corporate store, and thus available for any NSA analyst to search at will.

But it's even worse than that. The primary order prominently states that whenever the government accesses the wholesale telephone-metadata database, "an auditable record of the activity shall be generated." It might feel fairly comforting to know that, if the government abuses its access to all Americans' call data, it might eventually be called to account—until you read footnote 6 of the primary order, which exempts entirely the government's use of the "corporate store" from the audit-trail requirement.

The FISC's rules provide the appearance of limited and targeted access to Americans' phone records — but the reality is far different. When a single query is, in fact, a three-hop frolic through American's phone records, the initial restraints lose much of their force. And, when the NSA can combine the results of all these queries for future, unrestricted analysis, the FISC's front-end protections have almost no significance at all. The weakness of the back-end controls renders the front-end protections all but irrelevant.

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Fri, 08/02/2013 - 7:04am

It's DEF CON time! The preeminent hacker convention kicked off yesterday in Las Vegas, and a team of ACLU experts are there. If you're in town, come visit us in the vendor area, where we're on hand to chat about what has been a pretty eventful year – to put it mildly – in digital privacy, and where we're offering limited edition t-shirts (designed especially for DEF CON!) to new ACLU members. And be sure not to miss our two panels today (Friday), after which you can join us to Party Like It's 1986 at the DEF CON pub crawl. Details on the panels and party are below.

Backdoors, Government Hacking and The Next Crypto Wars
Friday, August 2, 12 p.m.

The FBI claims it is going dark. Encryption technologies have finally been deployed by software companies, and enabled by default, such that emails are flowing over HTTPS, and disk encryption is now frequently used. Friendly telcos, who were once a one-stop-shop for surveillance, can no longer meet the needs of our government. What can the FBI and other agencies do to preserve their spying capabilities?

Part of the answer is backdoors: The FBI is rallying political support in Washington, DC for legislation that will give it the ability to fine Internet companies unwilling to build surveillance backdoors into their products. Even though interception systems prove to be irresistible targets for nation states, the FBI and its allies want to make our networks less secure, not more.

The other solution embraced by the FBI is hacking, by the government, against its citizens. A team of FBI agents and contractors, based in Quantico, Virginia have developed (and acquired) the capabilities to hack into systems, deliver malware capable of surreptitiously enabling a computer's webcam, collecting real-time location data, as well as exfiltrating emails, web browsing records and other documents.

While politicians are clearly scared about hacks from China, our own law enforcement agencies are clearly in the hacking business. Chris Soghoian, the ACLU's principal technologist, will discuss what this means for the current, heated debate about cybersecurity and our ability to communicate securely.

The ACLU Presents: NSA Surveillance and More
Friday, August 2, 3 p.m.

From the NSA's PRISM and metadata programs to IMSI catchers, location tracking to surveillance drones, and warrantless wiretapping to the AP's emails – this has been the year of surveillance. Come join the American Civil Liberties Union as we unravel the thicket of new technologies and laws that allow the U.S. government to spy on Americans in more intrusive ways than ever before. We will explore the latest news and trends in surveillance, reasons to despair, grounds to be hopeful, and ways in which you can help the ACLU's fight against government overreaching.

Participating on the panel will be the Catherine Crump, a staff attorney with the Speech, Privacy and Technology Project (SPT); Alex Abdo, a staff attorney with the ACLU's National Security Project; Christopher Soghoian, SPT's principal technologist; Kade Crockford, the director of the Technology for Liberty program at the ACLU of Massachusetts; and Nicole Ozer, the Technology and Civil Liberties Policy director at the ACLU of California. SPT Director Ben Wizner will be moderating the panel.

Join the ACLU to Party Like It's 1986!
Friday, August 2, 9 p.m.

There's plenty to celebrate about the 80s – like the Bangles, big hair, and Pac-Man, for starters. But one totally un-rad remnant from that era is the outdated Electronic Communications Privacy Act (ECPA), which was enacted in 1986, and which gives law enforcement warrantless access to much of our electronic communications.

So gear up to fight for an update to ECPA: Break out those old high tops, and get ready to get down to some loud and bodacious 80s music at an ACLU-hosted party at DEF CON 21's pub crawl tonight. Flashy fashion and makeup await. There will be retro décor. And ACLU experts will be on hand to discuss privacy and technology law.

It is ridiculous that the standards for protecting your emails, Facebook messages, text messages, and more haven't been updated since before the World Wide Web was even invented. So let's get together to party like it's 1986 – and demand privacy like it's 2013.

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Federal Judge Blocks Wisconsin Abortion Law

Thu, 08/01/2013 - 9:00pm

Law Would Have Closed Half of State's Abortion Clinics

August 2, 2013

CONTACT: 212-549-2666,

MADISON, Wis. – A federal judge issued a preliminary injunction today blocking a Wisconsin law that places medically unnecessary restrictions on abortion providers and that would have forced two of the four health centers that provide abortions in the state to close. The law was challenged on July 7, 2013, by the American Civil Liberties Union, the ACLU of Wisconsin, Planned Parenthood Federation of America, and Planned Parenthood of Wisconsin.

The law, which requires every physician who performs an abortion to have admitting privileges at a local hospital, is similar to Alabama and Mississippi laws that were blocked by federal district courts earlier this year, and a North Dakota law blocked by a state trial court just last week. Doctors and leading medical groups, such as the American College of Obstetricians and Gynecologists and the Wisconsin Public Health Association, have opposed such requirements because they are unnecessary for the provision of safe, high-quality health care, and because they prevent women from getting necessary services. Wisconsin law does not require doctors providing surgery at other health centers to have admitting privileges even for more complicated procedures.

"We are pleased that the court blocked this law which would have threatened women's health by shutting down women's health centers that provide safe, legal abortions," said Larry Dupuis, legal director of the ACLU of Wisconsin.

"This law is just one in an already too-long list of legislation passed this year and designed solely to interfere with a woman's private medical decisions," said Alexa Kolbi-Molinas, staff attorney with the ACLU Reproductive Freedom Project. "We will not stand silent as extremist politicians attempt to take away women's access to safe and legal abortion care."

For more information on this case, please visit:

Edward Snowden is a Whistleblower

Thu, 08/01/2013 - 9:00pm

This piece originally ran at the ACSblog.

My American Civil Liberties Union colleagues and I have been extremely busy since the Guardian and the Washington Post published leaked classified documents exposing the scope of the government's secret interpretations of the Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act, which allow the FBI and NSA to spy on hundreds of millions of innocent Americans. We haven't written much about the alleged leaker of this information, Edward Snowden, however, mainly because we took his advice to focus on what the NSA and FBI were doing, rather than on what he did or didn't do. (See exceptions here and here).

But I did want to clear up a question that seems to keep coming up: whether Snowden is a whistleblower. It is actually not a hard question to answer. The Whistleblower Protection Act protects "any disclosure" that a covered employee reasonably believes evidences "any violation of any law, rule, or regulation," or "gross mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety."

In the two months since Snowden's alleged disclosures, no fewer than five lawsuits have been filed challenging the legality of the surveillance programs he exposed. The author of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), called the scope of data collection revealed in one of the leaked Foreign Intelligence Surveillance Court orders "incredibly troubling," and "an overbroad interpretation of the Act" that "raise[s] questions about whether our constitutional rights are secure."

It doesn't end there. Over a dozen bills have been introduced in Congress to narrow these now public surveillance authorities and increase transparency regarding continuing programs. No one can know what was in Edward Snowden's mind, but clearly he could have had a reasonable belief the documents he leaked to the news media revealed government illegality and abuse of authority.

The disclosures also revealed that U.S. military officers and intelligence community officials have been less than truthful in their public comments and congressional testimony about the government's domestic surveillance practices, both in the scope of the programs and their effectiveness. Such false and misleading testimony threatens more than just Americans' privacy; it threatens democratic control of government.

Americans need and deserve truthful information about what the government is doing, particularly where the activity infringes on individual rights. As the father of the Constitution James Madison said, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both." Denying Americans this knowledge through excessive and unnecessary secrecy, or worse, official deception, is unjustifiable and illegal. In a democracy, the law should never be secret.

The countless articles on the front pages of dozens of newspapers across the country since the documents leaked reveal the public thirst for this information. It is clear that these disclosures benefited the public, by giving victims of illegal surveillance – essentially all Americans – the knowledge and opportunity to challenge these unconstitutional programs, both in the courts and through their elected representatives in Congress. Even President Obama said he "welcomed this debate" and thought it was "healthy for our democracy." Yet a properly informed public debate on these programs would not have been possible without Snowden's leaks.

But the fact that the leaks served the public interest by exposing government illegality and abuse doesn't mean Snowden is protected by the law, because the intelligence community has always been exempted from the Whistleblower Protection Act. This fact refutes the other common misperception: that there are effective internal avenues for reporting illegal activities within the intelligence community.

Congress passed the Intelligence Community Whistleblower Protection Act in 1998, but it is no more than a trap. It establishes a procedure for internal reporting within the agencies and through the Inspector General to the congressional intelligence committees, but it provides no remedy for reprisals that occur as a result. Reporting internally through the ICWPA only identifies the whistleblowers, leaving them vulnerable to retaliation. The examples of former NSA official Thomas Drake, former House Intelligence Committee staffer Diane Roark and former CIA officer Sabrina De Sousa show too well.

This lack of protection means that when intelligence community employees and contractors – who take an oath to defend the Constitution – see government illegality they must turn the other way, or risk their careers and possibly even their freedom. The people we trust to protect our nation from foreign enemies deserve legal protection when they blow the whistle on wrongdoing within government.

Michael German is senior policy counsel at the ACLU's Washington Legislative Office and a former FBI agent.

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New Proposal Could Singlehandedly Cripple Free Speech Online

Thu, 08/01/2013 - 2:10pm

The Internet has evolved into a true marketplace for every idea – if you can think of it, you can find it on the web. That the online world has blossomed into this virtual town square teeming with diverse content is no accident. It is largely a creation of federal law – specifically, Section 230 of the Communications Decency Act of 1998. Section 230 is directly responsible for the free, messy, uncensored, and often brilliant culture of online speech. By prohibiting most state civil or criminal liability for something somebody else writes or posts, it created the single most important legal protection that exists for websites, bloggers, and other internet users. Under Section 230, a website can provide a platform for all speech without worrying that if one of its online users posts something stupid, critical, defamatory, or unlawful, the website itself can be held responsible.

What does this mean for the web as we know it? Almost everything. It means that Yelp can't be held legally responsible for a negative restaurant review written by one of its users. It means Craigslist doesn't have to screen every personal ad to make sure it isn't a cleverly-disguised prostitution pitch. It means that Reddit could, and did, offer its users a thread tracking the manhunt for the Boston Marathon bombers in real time without censoring users' reports from the BPD scanner. In short, Section 230 makes sure that any website that offers individuals a place to speak — comment threads, group forums, consumer reviews, political meet-ups, you name it — doesn't have to police its users to make sure every post is within the letter of state and federal law.

But last week a group of state attorneys general wrote a letter to Congress asking to change all that — and their misguided proposal threatens to undermine the legal regime that has allowed speech to flourish. The AGs have asked Congress to amend Section 230 so that websites can be liable based on accessory, accomplice, facilitation, or similar legal theories for users' violations of state criminal laws. If their proposal were to pass, it would mean that every website on the Internet could be subject to legal liability for violations of an unfathomable number of state laws. As Matt Zimmerman over at EFF points out, these include such infamous crimes as posting Netflix passwords online, and publishing someone's else's defamatory speech (which is illegal under a number of state laws). No website owner in her right mind would offer an uncensored user forum knowing that the website could be investigated, shut down, or charged with a felony just for one user's speech. We've joined a letter in response to the proposal that was submitted to Congress yesterday.

History shows us that that the likely result – the dramatic chilling of online speech – isn't a theoretical slippery slope. Section 230 was actually passed in response to the dark early days of the Internet, when websites faced lawsuits over speech by their users. Section 230 wasn't passed in order to provide a legal haven for sites hosting illegal behavior, but rather in response to legal claims that sites that remove offensive or illegal user-generated content then become legally responsible for that content. The legislative history of Section 230 refers specifically to a New York state case — Stratton Oakmont, Inc. v. Prodigy — in which a Long Island investment banking firm successfully sued a bulletin board for hosting anonymous defamatory comments because it had exercised "editorial" control to remove "offensive" language. The case had the perverse effect of discouraging sites from regulating offensive (or illegal) content, and led directly to Section 230.

The AGs' proposal would turn the Internet as we know it upside-down. Without Section 230's safe harbor to ensure that websites aren't legally on the hook for content created by their users, websites would be responsible for policing every user-submitted word for possible criminal violations — which simply isn't feasible. Avoiding legal risk would require even the smallest blog to hire an army of lawyers to compare user content against the mosaic of all 50 states' ever-changing criminal laws. More realistically, websites would do one of two things. They would draft their compliance policies to censor user-generated speech to match the most restrictive state law, or they would simply not host user-generated content. It's certainly what their lawyers would advise them to do. If Section 230 is stripped of its protections, it wouldn't take long for the vibrant culture of free speech to disappear from the web. That would be nothing short of a national tragedy.

Section 230's safe harbor provisions have been positive for free speech, resulting in the spectacular diversity of content we now expect online. More than 220 years after the adoption of the First Amendment, the web has fulfilled our foundational promise of an uncensored marketplace of ideas where free speech truly flourishes. Keeping Section 230 intact will ensure that websites aren't punished for providing the soapbox.

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Texas Bill Would Require Women To Take Adoption Class Before Abortion

Thu, 08/01/2013 - 1:43pm

I've had it. Dozens of restrictions to abortion access have already passed this year across the country, with Texas in the national spotlight. And just when we thought it couldn't get any worse, politicians in the Lone Star State have stepped up to the plate, yet again, to restrict women's health in what may be one of the most demeaning ways yet.

Earlier this week, Texas State Sen. Eddie Lucio introduced a bill that would require a woman to take a three-hour class on adoption before she could get an abortion. Keep in mind that a woman in Texas already has to undergo counseling before getting an abortion, and the state's materials include information about adoption.

This can't be serious.

Does Sen. Lucio think we're stupid? Does the Texas legislature think that women don't know about adoption? Do our elected officials really believe that women can't make complex decisions? It seems that way, doesn't it.

Maybe we should require our elected officials to take a class on women. Maybe these politicians need to have someone explain to them that women have brains just like men, and like men, we can make our own decisions about our lives, and our families.

We all need to be able to make informed decisions about the medical care we seek, but this bill implies that women don't know how to find this information and make these important decisions on their own. We should make sure all options are available to every woman, and ensure that each woman receives unbiased counseling and accurate education. But the information should not be intended to shame or pressure the woman into changing her mind or making a decision that is not right for her. This bill is political interference, not informed consent.

It's time for legislators to listen to medical experts, to their constituents, to common sense. It's time to leave these personal, private decisions to us. Legislators should get out of our doctors' offices. Tell your legislators that you are not stupid.

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The Darker Side of the DOJ Press Guidelines

Thu, 08/01/2013 - 9:26am

In mid-July, the attorney general released guidelines about when and how the Justice Department can investigate journalists in the aftermath of the AP and James Rosen scandals. In my last post, I explained why the new limits on when the DOJ can delay notice of a phone records subpoena are really very good. Here, I'll look at the darker side of the changes.

Who's a Journalist?

Marcy Wheeler has a post on why she says the frequent reference to the "news media" (as opposed to "reporters" or "journalists") could exempt bloggers and outlets like WikiLeaks from the guidelines' protections. While the guidelines in the FBI's Domestic Investigations and Operations Guide (the "DIOG") that she references are far too crabbed (look at DIOG section and Appendix G section G.7.1.1), were the definition of "news media" applied in good faith, there's an argument that it applies to most bloggers.

While simply posting "information or opinion" to a blog isn't enough to trigger the definition, an internet poster does qualify if they otherwise "fall under the definition" of a member of the news media. The definition covers (my emphases) an organization or individual that (1) gathers information of public interest, (2) uses editorial skills to (3) turn raw materials into (4) a distinct work, and (5) distributes that work to the public. The vast majority of modern bloggers do exactly that; the only difference between Talking Points Memo and the New York Times is the lack of newsprint. (The guidelines also direct investigators to, when in doubt, err on the side of inclusiveness.)

She is very likely right, however, that the definition of news media wouldn't cover most of Wikileaks or any other information hub that doesn't apply "editorial skills" to transform "raw materials" into a "distinct work" (WikiLeaks does do more than just post raw information, activity that may be covered even by the DIOG definition). And that's absolutely a fundamental problem with both the DIOG and the new DOJ guidelines. There is no question that these repositories—see also Reddit—are performing a checking function on the government similar to that which prompted the Framers to protect press freedoms in the first place. They should receive the same protection as the New York Times, and for the same reason.

Criminalizing Journalism?

The second major reform in the new guidelines is to apply the same limits on news media subpoenas to warrants under the Privacy Protection Act (see this post for background on the PPA). The government will now have to show that it has exhausted all other avenues, that the material sought is essential to the investigation, and that the warrant is narrowly tailored. The attorney general must then sign off.

That's all good and should reduce the use of search warrants to access reporters' emails, notes, and other work product. But there may be a drafting issue. The new guidelines make clear that a PPA warrant will not be sought "if the sole purpose is the investigation of a person other than the member of the news media" (my emphasis). But what if the investigation targets both a member of the news media and another person, and the warrant is issued to the reporter to get records that implicate the other person? It's unclear whether that's still permissible—and it shouldn't be. A warrant should only be issued under the PPA when the DOJ has good faith probable cause that the reporter has personally committed a crime unrelated to newsgathering.

Circumventing the Guidelines

Finally, there's nothing stopping the DOJ from using national security letters, informal "exigent" letters, or administrative subpoenas to secure transactional records (for instance, who called or emailed whom and when) that it would be barred from accessing under the revised guidelines.

For national security letters, the government need only show that they are "relevant" to a foreign intelligence investigation. That clearly wouldn't be a stretch with most national security leaks, which, even when they involve the press, could arguably also implicate the potential transfer of national defense information to foreign powers. "Exigent" letters have already been used (improperly) to secure phone records from the media. And administrative subpoenas could be used in cases involving health care fraud, controlled substances, child abuse, Secret Service, or inspector general investigations to completely bypass the new guidelines. The government could then use the information produced, without restriction, to identify an anonymous source.

All of these shortcomings, and particularly the last, combine to limit the scope of the new DOJ media guidelines. They also starkly highlight the need for a federal shield law. (Currently, there's the Schumer-Graham bill, S. 987, set for consideration in the Senate Judiciary Committee later this week. The legislation isn't perfect, but it would certainly be an improvement over the status quo. )

Nevertheless, the changes to the DOJ guidelines are a clear step in the right direction, and the cautious optimism expressed by many advocates is not misplaced.

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How to Decode the True Meaning of What NSA Officials Say

Thu, 08/01/2013 - 9:09am

This piece was originally published on Slate.

James Clapper, the director of national intelligence, has been harshly criticized for having misled Congress earlier this year about the scope of the National Security Agency's surveillance activities. The criticism is entirely justified. An equally insidious threat to the integrity of our national debate, however, comes not from officials' outright lies but from the language they use to tell the truth. When it comes to discussing government surveillance, U.S. intelligence officials have been using a vocabulary of misdirection—a language that allows them to say one thing while meaning quite another. The assignment of unconventional meanings to conventional words allows officials to imply that the NSA's activities are narrow and closely supervised, though neither of those things is true. What follows is a lexicon for decoding the true meaning of what NSA officials say.

Surveillance. Every time we pick up the phone, the NSA makes a note of whom we spoke to, when we spoke to him, and for how long—and it's been doing this for seven years. After the call-tracking program was exposed, few people thought twice about attaching the label "surveillance" to it. Government officials, though, have rejected the term, pointing out that this particular program doesn't involve the NSA actually listening to phone calls—just keeping track of them. Their crabbed definition of "surveillance" allows them to claim that the NSA isn't engaged in surveillance even when it quite plainly is.

Read the rest of the NSA Lexicon on Slate.

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ACLU in Defense One: Obama's Whistleblower Witchhunt Won't Work at DOD

Thu, 08/01/2013 - 8:55am

For two decades during the Cold War, an ultra-secret "mole" hunting squad at the Central Intelligence Agency, led by James Jesus Angleton, investigated hundreds of loyal government workers, primarily Eastern Europeans, in an obsessive search for Soviet spies based on tips from a questionable source. When all was said and done, many careers were ruined, no mole found and Angleton had lent his name to a new word for things conspiratorial and paranoiac: Angletonian.

The Obama administration is now on an Angletonian path, but on a meta scale throughout the government. Two years ago, the White House implemented the Insider Threat Program, an initiative created by executive order following the WikiLeaks affair. Not surprisingly, civil liberties groups fear the initiative will open the door to inappropriate and biased reporting based on racial and ethnic profiling, whistleblower retaliation and personal and political vendettas that will overload the system with bad information. These critics are joined, however, by career counter-intelligence experts, many of whom argue that non-professionals are simply ill-equipped to accurately identify potential threats.

To continue reading:

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Voter ID Trial Day 11: Closing Arguments Delayed as Dispute over Data Continued

Thu, 08/01/2013 - 8:35am

The eleventh day of the voter ID trial proved to be an interesting mixture of boredom and drama. After a long trial, everyone involved was looking forward to closing arguments today. Instead, Judge McGinley once again closed the courtroom to everyone but attorneys in the case, leaving the dozen or so journalists and other observers to hang out in the lobby for almost two hours as the two sides continued to tangle over the Department of State (DOS) ID "exception spreadsheet." The debate is a critical one to the case, as it gets to the issue of whether or not these IDs are actually easily accessible for voters.

The DOS exception spreadsheet is a list produced by the Dept. of State of roughly 600 voters who applied for the DOS ID – the ID the commonwealth claims is easily available to all – at PennDOT but who left without the ID in their possession. The debate between the two sides has been whether those individuals did ultimately receive the ID, how long it took, and why there was a delay in processing them. Opposing counsel fought over discussing the issue in open court, claiming that confidential PennDOT information might be revealed. Petitioners provided abundant assurances that no confidential information would be made public and believe that the real reason for the request for a closed courtroom is to keep the problems with the DOS ID system, which has the potential to disenfranchise voters if the law goes into effect, from being discussed publicly.

The morning began with the cross examination by the commonwealth of Bryan Niederberger from BLDS. Mr. Niederberger was a rebuttal witness put on the stand yesterday over the objections of the commonwealth. He produced a report analyzing multiple documents produced by opposing counsel during discovery and the trial. He examined the data multiple ways, including versions that took into account the commonwealth's disputed claims (they claim that 144 individuals on the list of 600+ names were erroneously included on the exception spreadsheet because they have another form of PennDOT ID). Even assuming the commonwealth's claims are correct, the bottom line is that out of 2,530 people who applied for a DOS ID on or after September 25 (the date the new "streamlined" DOS ID procedure went into effect), at least 56 validly registered voters who went to PennDOT before the November 2012 election did not receive their DOS ID in time for the election. Seven of the 56 never received the ID. (See page 2 of the report.) If the voter ID law had been in effect in November, these voters would have been disenfranchised.

Lawyers for the two sides retreated to their respective conference rooms to plan next steps. A clerk for the judge attempted to do some shuttle diplomacy, visiting each side to try to reach an agreement about the data. For a while it looked like the commonwealth was going to call rebuttal witnesses to rebut the petitioners' rebuttal witness.

Journalists and other observers were finally able to enter the courtroom around 11:15 a.m. The commonwealth said it would not call any more witnesses but did file a motion asking the judge to dismiss the case, claiming the petitioners did not have standing. (The motion was not unexpected and is a fairly standard practice.)

In a surprise move, Judge McGinley announced that closing arguments would be today August 1, at 10 a.m. rather than this afternoon. The trial has already lasted several days longer than expected.

Later in the afternoon, the judge issued a scheduling order pushing back the date of his ruling on petitioners' request that the court block enforcement of the voter ID law until a final ruling has been made on the law. Originally due August 9, Judge McGinley will now issue an order on extending the preliminary injunction by August 19, 2013.

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How One Philly School Stopped Violence in Its Tracks

Thu, 08/01/2013 - 8:05am

I recently read an article in The Atlantic by Jeff Deeney about a school in Philadelphia that took an innovative approach to reduce youth violence in one of the most desperately poor areas of the city. Instead of relying on a hefty police presence to keep their students safe, their approach—relatively unheard of in an economically depressed school like this one—centered on empowerment, community support, and providing a stable environment for the students.

Deeney wrote:

Every day police would set up a perimeter of police officers on the blocks around the school, and those police were there to protect neighbors from the children, not to protect the children from the neighborhood. School police officers patrolled the building at [the school], and children were routinely submitted to scans with metal detecting wands.

So when American Paradigm Schools took over the struggling school, renamed it Memphis Street Academy, and removed every remnant of the police state it once was, most expected the school to fall even further into chaos. But a funny thing happened instead: the number of violent incidents dropped by 90%.

According to internal anonymous surveys taken by Memphis Street Academy students, the majority of students now say they feel safe at school and that there's an adult at school who cares about them. A whopping 95% now say they hope to graduate from college one day.

We shouldn't be shocked that Philadelphia's gamble paid off. Studies and reports consistently demonstrate the success of empowerment and intervention programs compared to the lock ‘em up route, and the success of Memphis Street Academy should serve a model for schools across the country.

The Youth PROMISE Act (YPA), which is currently awaiting a vote in Congress, represents a tremendous opportunity to begin this systematic reversal of course by making sure kids are in school, not prison. The bill enables communities to kick-start their own Memphis Street Academy-esque changes through evidence-based reform programs aimed at curbing violence.

Unlike the situation in Philadelphia, this bill doesn't withdraw police presence. Instead, schools and communities will work with local law enforcement to ensure their presence is providing the maximum benefit to young people by encouraging mentorship and collaboration between youth groups and law enforcement.

A companion bill for the YPA was recently introduced in the Senate by Sen. Mary Landrieu (D-La.) and Sen. James Inhofe (R-Okla.) earlier this month after Rep. Bobby Scott (D-Va.) re-introduced the bill in the House in late spring. The bill was pushed forward by a recent Capitol Hill panel sponsored by the ACLU—and moderated by our very own legislative counsel Jennifer Bellamy—featuring Rep. Scott, Grammy-nominated musician and composer John Forte, and other experts and special guests.

The moral of Memphis Street Academy's story is clear: young people need our trust and support to succeed. The Youth PROMISE Act will give kids across the country the same opportunity to thrive.

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