News & Commentary

Over the past month, two high-profile incidents reaffirmed why police body cameras cannot serve as a police transparency and accountability tool as long as state law empowers the police to determine what footage the public gets to see. As we have said time and time again, when the police are given the discretion to publicly release favorable body camera footage but withhold negative footage, police body cameras become nothing more than a police propaganda tool. The first such incident occurred on Nov. 19 in Omaha, Nebraska, where Kenneth Jones, a 35-year-old Black man, was pulled from the back seat of a car and killed by white police officers during a traffic stop. Despite having body camera footage of the incident, and immediate calls for transparency, the Omaha Police Department has refused to release the footage despite Nebraska’s strong tradition of open government. This decision, quite understandably, incensed the public. Omaha Deputy City Attorney Bernard in den Bosch, while acknowledging that “in the State of Nebraska, body cam videos are probably public records” nevertheless stated that “we have exercised our right to use the exception in the public records act to withhold them from public dissemination.”  Omaha Police Chief Todd Schmaderer took a different approach, saying that “I want to release the video” but then claiming he could not because “the video is the most inflammatory piece” of evidence, and that “arguably, if you are going to taint the jury pool, it would be with that piece of evidence.” The Omaha Police Department even went a step further, suggesting that Nebraska state law prohibits them from releasing the footage until the conclusion of any grand jury work related to the recorded incident. The chief’s claims are odd and suspicious for three reasons. First, when privately recorded videos of police conduct have been publicly released, they have had shockingly little impact on jury pools. Just ask the families of Eric Garner in Staten Island, New York or Daniel Shaver in Mesa, Arizona, where despite the release of graphic videos of their family members’ murders, the offending officers avoided any criminal liability. Second, the chief’s claim that state law prohibits him from releasing the footage is without merit. Even the local county prosecutor’s office told News Channel Nebraska that “nothing in the [state] grand jury law prohibits any police video from being released now.” Third, despite the chief’s claim that he was legally prohibited from releasing the body camera footage, he and his own police department went ahead and released several still images from the video — undermining all his previous claims.   All in all, the tangled web of strained and dubious claims by the Omaha Police Department are strongly indicative of someone trying to hide the truth; in this case, an unfavorable truth contained on body camera footage. But because Nebraska state law does not create an affirmative obligation to release police use-of-force body camera videos within a short time after an incident, the public has not seen the footage to date. Contrast that with the second incident, which occurred just over two weeks later, on Dec. 7, in Tallahassee, Florida. In that case, the Florida State Police raided the home of former Florida Department of Health data scientist Rebekah Jones, who has alleged she was fired from her job for refusing to manipulate COVID data. Following the raid, Jones tweeted that the state police “pointed a gun in my face. They pointed guns at my kids.” The tweet, which included a privately recorded video of the police entering Jones’ home, was picked up by the local press. In that case, like the case in Omaha, the police were wearing body cameras. Similarly as well, Florida’s body camera law, like that in Nebraska, does not require the immediate release of body camera videos that contain police uses of force, like entering a person’s home with guns drawn. However, in the Florida case, police body camera footage appears to show the state police acting in a more restrained manner than Jones was alleging. As a result, in what CNN properly noted to be a “rare move”, the state police released the body camera footage publicly, and they did it quickly. Transparency prevailed, but only because it favored the police. This double standard plays out in states like Nebraska, Florida, and many others where laws allow the police to be the sole or initial arbiter of what body camera footage the public gets to see. When body camera footage is negative, the police use bogus arguments to either withhold it or to justify selectively releasing portions of the footage to foster the story they are trying to tell. However, when body camera footage is favorable, the police tend to release the video with lightning speed. That is how a propaganda tool operates. If police body cameras are ever to become a real tool for promoting police transparency and accountability, release of footage that captures uses of force or alleged police misconduct should be quick and automatic. Further, as the ACLU’s model state body camera legislation states, “where a subject of the video footage is recorded being killed, shot by a firearm, or grievously injured, [release of the footage] shall be prioritized and the requested video footage shall be provided as expeditiously as possible, but in no circumstances later than five (5) days following receipt of the request.” States that do otherwise, either by leaving the release of critical footage to law enforcement discretion or by erecting laborious and costly legal hurdles to accessing important footage, should drop the ruse that they care about police transparency or the safety of their Black and Brown constituents who are so frequently the targets of police misconduct.

The FBI is secretly breaking the encryption that secures our cell phones and laptops from identity thieves, hackers, and abusive governments, and it refuses to even acknowledge that it has information about these efforts — even though some details have been filed publicly in federal court. We’re suing to get some answers.   Between our emails, text messages, location information, social media activity, and more, our cell phones hold almost our entire lives. In recent years, governments have stepped up efforts to gain access to the information on our cell phones and personal computers. The federal government has been pressuring companies to build encryption backdoors that would severely undermine our digital privacy and security, and both federal and state governments have regularly paid third-party vendors to break into people’s encrypted devices.   Now, it appears the FBI has built an in-house capability to break into these devices. Publicly available information indicates that the Electronic Device Analysis Unit (EDAU), a team within the FBI, has acquired or is in the process of acquiring software that allows the government to unlock and decrypt information that is otherwise securely stored on cell phones. Public court records also describe instances where the EDAU appeared capable of accessing encrypted information off of a locked iPhone. And beyond that, the EDAU even sought to hire an electronics engineer whose major responsibilities would include “perform[ing] forensic extractions and advanced data recovery on locked and damaged devices.”   To learn more about the EDAU and its capabilities, we filed a request under the Freedom of Information Act asking that the Department of Justice and the FBI disclose records relating to the EDAU and its technological capabilities for retrieving information from locked electronic devices. The FBI responded in part by issuing what’s known as “Glomar” responses to two of our requests — which means that the agency refuses to even confirm or deny the existence of any records pertaining to the EDAU.   A valid Glomar response is rare, as there are only extremely limited instances where its invocation is appropriate — that is, only where the existence or nonexistence of records is itself exempt under FOIA. The problem with the FBI’s Glomar response is that, as detailed above, we already know records pertaining to the EDAU exist because information about the unit is already public. The fact that all of this information is already publicly known deeply undercuts the FBI’s Glomar theory. The FBI itself has made clear that it is attempting to access and decrypt personal electronic devices, so the claim that it can’t even acknowledge whether these records exist is implausible.   Seeking some much-needed transparency, today we asked a federal court to intervene and order the DOJ and the FBI to turn over all responsive documents pertaining to the EDAU. We’re demanding the government release records concerning any policies applicable to the EDAU, its technological capabilities to unlock or access electronic devices, and its requests for, purchases of, or uses of software that could enable it to bypass encryption.   By invoking the Glomar response, the federal government is sending a clear message: It aims to keep the American public in the dark about its ability to gain access to information stored on our personal mobile devices. But it’s not that the FBI has just shut the door on this information — they’ve shut the door, closed the windows, drawn the shades, and refused to acknowledge whether the house that we’re looking at even exists. It’s imperative that the public gets meaningful access to these records regarding the federal government’s capabilities to access our phones and computers. Our privacy and security are at stake.

This blog is the eighth in a series outlining a reimagined, just, and humane immigration system for the United States.  The past four years proved that the Biden-Harris administration must be bold and focused on overhauling the immigration system. The Trump administration has touted the “breathtaking” changes it has made to our immigration system. The changes are indeed breathtaking — in their dishonesty, abject cruelty, and white supremacist roots. The Trump administration has been single-mindedly obsessed with destroying our immigration and refugee system, using a global pandemic to upend it. On his way out, Trump is also shoving through “last-ditch efforts” at further harming immigrants. Our border militarization and immigration enforcement machinery is overfunded, unaccountable, and increasingly lawless. It is this vast, “formidable machinery” that Trump has stretched to its limits, but the issue predates Trump. The last four years under Trump have highlighted how cruel and unjust our immigration system can be — but also demonstrated the significant discretion the executive branch can exercise.  The Biden-Harris administration committed to an immediate moratorium on deportations. Hitting pause on banishing people from the United States acknowledges that our immigration system is deeply flawed — even more so after four years of Trump — but also provides the space to begin laying the groundwork for an audacious and inclusive vision for immigrants’ rights.   During a moratorium, the executive branch must immediately halt immigration enforcement and deportations while it works to undo policies like the evisceration of asylum. We know that just reversing course will be a massive task, but it is also not enough.  A moratorium also provides an opportunity for the Biden-Harris administration to reject our existing immigration system’s reliance on the punitive, enforcement-based approach driven by mass detention and mass deportation. This system costs taxpayers tens of billions of dollars a year. The executive branch should instead invest in a humane and effective system focused on helping people navigate a byzantine immigration system and on a pathway to citizenship. In this reimagined immigration system, ICE and CBP racial profiling rather than engage in and encourage it. Immigrants would not be caged while going through the immigration system, but instead be with family and a support system as they pursue relief under the supervision of a judge. And the government would provide lawyers for people who are too poor to afford one because that is what fairness and justice demand.  There is a real opportunity and political will to reimagine our country’s approach to immigration: shifting from a detention and deportation-obsessed approach to one that is rooted in fundamental due process and human rights.  Take, for example, expedited removal, created by Congress in 1996 as part of a

Over the last couple years, it’s become increasingly clear that facial recognition technology doesn’t work well, and would be a civil liberties and privacy nightmare even if it did. But that’s not stopping the Trump administration from moving forward with its dangerous plans to expand the technology’s use at U.S. airports and other ports of entry. U.S. Customs and Border Protection (CBP) has proposed a new rule that would massively expand the use of face surveillance at the border, further entrenching a dystopian surveillance infrastructure that threatens our rights to privacy and anonymity, and disproportionately harms people of color and immigrants. Today, we and a diverse group of rights organizations are calling on the government to withdraw its plans.       According to a notice published in November, CBP plans to collect the faceprint of virtually every non-U.S. citizen who enters or exits the U.S., including children. The faceprints will then be stored in a government database for up to 75 years, where they may be used not only by the Department of Homeland Security, but by foreign governments and federal, state, and local law enforcement to identify individuals for a variety of purposes. CBP says it will apply a face-matching algorithm to travelers, comparing their faceprints to a gallery of other images in the government’s possession.   This plan is unjustified, unnecessary, and dangerous. Unlike fingerprints and many other biometrics, faceprints can be collected covertly, at a distance, and without our consent. Once a government acquires a person’s faceprint, it creates a risk of a unique and unprecedented form of persistent surveillance, one that allows the government to identify and track people without their knowledge. Congress has not authorized the government to take such an extraordinary and unprecedented step, and the government already collects fingerprints from non-U.S. citizens entering the United States, undercutting its claims about the unique value of facial recognition for identity verification.   Face surveillance gives governments, companies, and individuals the power to spy on us wherever we go, and we are already seeing its harmful consequences. In China, the telecommunications firm Huawei was reportedly testing a facial recognition algorithm that could send automated alerts to police when it identifies a member of the Uighur community, an oppressed Muslim minority group that has been subjected to unconscionable human rights violations in China. And here in the United States, the government has already used this technology to spy on protesters.   CBP’s proposed expansion of the technology will disproportionately harm immigrants and communities of color. Several recent studies, including government studies, have shown that the technology is wrongful arrests for crimes they did not commit.   Faulty facial recognition technology could provide a pretext for subjecting people of color and religious minority groups to additional screening and harassment. And regardless of the accuracy of CBP’s face-matching technology, DHS’ retention and sharing of travelers’ faceprints for up to 75 years will facilitate unjustified law enforcement scrutiny of immigrant and other communities for decades.   Granting CBP the extraordinary and unprecedented power to conduct persistent, secret surveillance of public movements with a faulty technology is cause for significant alarm. CBP played a leading role in carrying out family separations under President Trump’s cruel policy. The agency has a must put the brakes on this country’s slide into an anti-immigrant dystopia.

President Trump has assailed the right to vote during his entire time in the Oval Office. Trump’s term was bookended with baseless claims of voter fraud, an unoriginal yet effective trope that has been used throughout our country’s history to erect barriers to discriminate against Black, Hispanic, and Native American voters. Trump’s goal is obvious: to intentionally weaken public trust in our elections and embolden voter suppression efforts. Manufactured claims of fraud to explain away Trump’s loss of the popular vote in the 2016 election led to the creation of a sham commission that eventually disbanded after failing to provide any factual evidence to support Trump’s preposterous statements that millions of people had voted illegally. And following his loss of the 2020 presidential election, Trump has led a rabid assault on American democracy, which has eroded the public’s faith in the outcome of the election and catapulted efforts to subvert the will of voters by overturning the results of the election. Undeniably, there are problems with our democracy that must be fixed. But these issues do not arise from purported voter fraud. Rather, they are the legacy problems of our republic: systematic efforts by politicians to erect voting barriers and to discriminate against voters of color to tip the balance of power. These problems are enduring, persistent, and verifiable.  In Georgia and Arizona, the 2020 presidential election demonstrated the power of voters of color to disrupt entrenched political power structures, a development that has unnerved politicians who rely on low voter turnout to maintain the status quo. Next year will also mark the first national redistricting cycle since the Supreme Court gutted Section 5 of the Voting Rights Act, which required state and local governments with the worst records of voting discrimination to preclear voting changes with the Justice Department to ensure the changes did not racially discriminate. For the first time since 1965, congressional, state, and local government legislative districts will be drawn without the protections of Section 5 to prevent state and local officials from diluting the rising political power of minority voters.   It is imperative that President-elect Biden’s administration take ambitious action to protect the right to vote and improve the future of American elections under our existing federal voting laws and to champion new federal protections for voting rights. Here are the ACLU’s key recommendations:

The 2020 election was notable for many reasons, but one winner really stood out: drug legalization. Five states legalized either medicinal or adult use of marijuana. Oregon and went even further, becoming the first state to decriminalize the personal use and possession of small amounts of illegal drugs, including cocaine, heroin, and methamphetamine. The momentum garnered from these cross-country wins helped push the MORE Act through the House in recent weeks. If passed and enacted, this legislation would end the federal prohibition of marijuana. This week on At Liberty, Cynthia Roseberry, deputy director of our National Political Advocacy Department, joined us to discuss what this election means for the future of the drug war, and the long work of advocates to bring it to an end. “What we’re seeing now is finally the voice of the people being heard by policymakers,” said Roseberry. “It is a tipping point. It is a beginning, let me say that,” she added. “But it is a crucial point as we approach the 50 year anniversary of the war on drugs.”

The federal government has not been kind to transgender people over the last four years. Trans students were put at risk when the Department of Education withdrew critical guidance explaining how schools must protect transgender students. Trans people facing housing instability were left in the cold when the Department of Housing and Urban Development rolled back rules protecting trans and gender non-conforming people from discrimination at homeless shelters and other housing services receiving federal funds. Trans military members were devastated by a single tweet from the president that put their careers and livelihoods at stake. And the list of attacks goes on. The government is supposed to support and serve all of us, but trans folks have been intentionally and cruelly cut out these last four years, along with so many other communities. Of course, we are still here, and will continue to take care of each other no matter who is in the White House. We’ve heard Biden and Harris pledge to repeal the trans military ban and pass the Equality Act, and assure us that their administration will work to undo the harms of the last four years. Now we must must hold this administration accountable and ensure that they make a meaningful difference in the day-to-day lives of trans and non-binary people around the country. There’s one important action this administration can take right away to show transgender people that they respect and support us: give us identification that reflects who we are. That’s why one of the ACLU’s top priorities for the Biden-Harris administration is an executive order updating the process by which federal agencies change gender markers on IDs.  s order will ensure that all transgender people have access to an accurate ID. Currently,  to update a gender marker in the social security system, on a passport, on immigration documents, or on any other federal ID or record, an applicant must submit a letter from a medical doctor attesting to appropriate clinical treatment for gender transition. This executive order would remove those burdensome medical documentation requirements so that everyone has access to the appropriate gender marker, and add an “X” option so that non-binary, intersex, and other folks have an accurate designation. Access to accurate IDs is personally meaningful for trans folks but also practical, ensuring we can travel, apply for jobs, and enter public establishments with less risk of harassment or harm. But this update is not just about us, it’s a sensible solution for the federal government. IDs are intended to identify people, and are useless when they don’t match the applicant. Requiring trans folks to jump through hoops with doctor’s visits and medical letters to obtain updated IDs is costly, complicated, an invasion of privacy, and entirely unnecessary — and prevents many people from getting an updated ID to move through the world. Accurate IDs are not possible without appropriate options for non-binary folks, intersex people, and anyone else for whom an “M” or “F” is not suitable. An “X” designation is used throughout the world to indicate a sex or gender other than male or female, and must be available on our federal documents. Nearly 20 states already have self-attestation and an “X” designation on driver’s licenses and state IDs, so this update is also important to ensure that people can have consistent state and federal documents. The ACLU is excited to encourage this important step forward. In 2021, we’ll be sharing stories from trans and non-binary folks about the importance of accurate IDs, meeting with White House officials, and pushing the administration to follow through on their promises to the trans community. With one stroke of the pen, President-elect Biden can issue this order to not only provide a common-sense solution to access accurate IDs, but send a critical message to transgender people across the country: Our government sees you as exactly who you say you are, and we want you to be supported and included in this country. Building trust between the government and trans communities is a long and hard process, but it starts with recognition. 

This piece was originally published in Washington Post The administration of President-elect Joe Biden must do more than reverse the cruel immigration policies of the Trump administration. While the Trump administration’s policies have been particularly egregious, they are just the latest manifestation of a system that is fundamentally flawed. It is not enough to just turn back the clock on the past four years.   It is time to put an end to the Immigration and Customs Enforcement detention machine.   Over the past several decades, immigration detention — in essence, incarcerating those awaiting a determination of their immigration status or potential deportation — has become our nation’s newest system of mass incarceration for Black and Brown people. Rather than perpetuating this costly and cruel system, the Biden administration can immediately take action to curtail it — without any new laws from Congress, with the goal of phasing out mass detention.   Specifically, the new administration should immediately close all family detention centers. It should terminate existing contracts with private prisons and local and state jails by the end of the year, beginning with those that have an egregious history of abuse. It should also refrain from entering into new ones.   During the first 100 days, the new administration’s budget proposal can signal changed priorities, including an immediate reduction of at least 75 percent in the detention budget of ICE.   The Biden administration should eliminate bond for those otherwise eligible for release, and operate under a presumption of liberty, not detention. Under current law, ICE could immediately release tens of thousands of people from custody, but it routinely ignores its own internal standards to deny liberty to immigrants. The administration should simultaneously work with Congress to eliminate any circumstances in which detention is mandatory.   Incarceration of immigrants used to be the exception, not the rule. Under the law, we aren’t supposed to incarcerate people to punish them for lacking immigration status — that is a civil matter — or to deter others from coming to the United States. But that’s precisely what we now do, and on a massive scale. Decades of racist “tough on crime” policies, new detention policies seeking to punish and discourage people from coming to the United States, and the expansion of the detention infrastructure in the aftermath of 9/11 have pushed us in this unwise, expensive and inhumane direction.   The numbers are staggering. In just over six decades, the United States has completely upended its 1954 goal of ending the use of detention in “all but a few cases.” The detention of immigrants on any given day has gone from just under 6,800 in 1994, to nearly 34,000 in 2013, to an all-time high of more than 52,000 in 2019. In short, in just 25 years, the average daily population of immigrant detainees has increased more than sevenfold. We have all but normalized a system that abuses and traumatizes immigrants as a matter of practice.   Although other agencies detain immigrants, ICE is responsible for the vast majority of detentions and holds people the longest — for months or even years. The cruelty of its vast network — more than 200 sites nationwide — is by design: Detain people in the middle of nowhere, without lawyers and with no support network nearby. Pressure the people who are still fighting their cases into giving up their legal claims. Deport people covertly, and repeat.   ICE detention is a critical piece of our country’s mass deportation conveyor belt, propping up a system that tolerates racist practices, harms families and children, and denies basic due process and human rights to hundreds of thousands of people each year — costing taxpayers more than $3 billion this past fiscal year alone. Detained individuals have suffered severe pain and medical neglect culminating in sometimes months-long hunger strikes, deaths, amputations and suicides. Recently, numerous women bravely came forward to report invasive and unnecessary surgeries, including covid-19 has laid bare the ultimate costs of immigration detention. ICE has refused to provide even basics like masks or soap, denied testing to keep infection numbers artificially low, recklessly transferred people between facilities with coronavirus outbreaks, and failed to provide urgent medical care. ICE’s neglect during a pandemic is killing people and spreading the virus.   In part because of litigation and advocacy, ICE detention levels declined significantly this year, demonstrating that people are needlessly detained. These lower levels of detention, coupled with a presumption of release, enable a new administration to make urgently needed changes.   These recommendations are the minimum of what the Biden administration must do. But implementing them would move us toward a reimagined system — without the systemic trauma and cruelty stemming from immigrant detention — that embodies our nation’s values of fairness, justice and human rights.

It took a split second for my whole world to come crashing down.  My teammates on the University of Connecticut’s women’s soccer team were jumping and screaming and hugging each other. We had just won a championship game. It was one of the happiest moments of my life — my first championship win at the collegiate level. Without thinking, I flashed a middle finger in celebration as I embraced teammates on camera. I couldn’t have known that split-second, mindless gesture of celebration would cause UConn to suspend me from the NCAA tournament, revoke my scholarship, and completely upend my life as I knew it. All for a stupid mistake. Right away, UConn issued a press release calling the middle finger “unsportsmanlike” behavior. I cried the whole way home through the airport, and apologized to my team. Luckily, my teammates were so supportive. But UConn was not finished punishing me.  At that point, I knew I was suspended, but I didn’t really grasp what that meant until I tried to join my teammates in watching the NCAA selection show, which is always a big deal every year. I was essentially barred from seeing my team on campus. I wasn’t allowed to go to any team functions or even enter the locker room. I wasn’t allowed to wear any gear or to identify myself as a UConn athlete, either. And then over winter break, I learned that I had lost my full-ride scholarship. Without it, I could no longer afford to attend UConn. I had to transfer to another school with a partial athletic scholarship mid-year. That’s when I decided to take legal action against UConn. This was about more than a tournament, and even more than a lost scholarship. This was about discrimination on the basis of sex. UConn’s harsh punishment left me feeling ostracized. They attacked my whole identity as a career athlete. And I don’t think the same thing would have happened if I were a male athlete.