News & Commentary

Election Day is fast approaching, and while we’re doing everything we can to prepare, some questions remain unanswered.  Dale Ho, director of the ACLU Voting Rights Project, and University of Michigan law professor Leah Litman join the At the Polls podcast this week to discuss litigation across the country that could impact who gets to vote and how.

Customs and Border Protection (CBP), the nation’s largest federal law enforcement agency, operates with

We, your Black friends, family, and colleagues, are not okay. A Black woman, asleep in her bed, was murdered in cold blood and the system didn’t just find her killers innocent — they found their crime, the crime of ending the life of a Black woman, unworthy of even being charged. We work alongside you at the American Civil Liberties Union, fighting for a country that’s never loved us and forced to fight within a system built to harm and kill us. A legal system that says explicitly that Black lives do not matter. A system that calls for more accountability for putting bullets into drywall than into a Black woman. I ask you to imagine how the system would have responded if these police had murdered a white woman EMT (during a global pandemic) in her sleep. Does anyone think it would have taken six months to convene the grand jury? Does anyone think there wouldn’t even be a trial? Does anyone think that this country reacts and punishes the harm done to Black women with even a semblance of the outrage and protection we reserve for other communities? If you are not Black and you’re asking yourself, “How can I help my Black friends, family members, and colleagues?”, here is a non-exhaustive list of what you can do today: 1. Offer your Black staff and colleagues the opportunity to take time off and help redistribute their workload. Do not just send a note that says, “It’s okay if you need to take some time.” Send a note that says, “I want to support you in taking time off. What can I take off your plate? What meetings can I attend in your place? How can I make that happen?” 2. Be mindful of when/how you are processing your feelings. If you’re not Black, this is the time to be especially mindful of how, when, and with whom you are processing your grief, pain, and anger. Do not put additional emotional labor on your Black friends and colleagues.  3. Do acknowledge the impact of this tragedy. Carve out space in agendas you create to address the trauma and be clear not to move on with “business as usual” without holding that space.  4. Call each other in and call each other forward. Be in solidarity by spending your political capital on racial justice at work and find a way to do it without virtue signaling or centering yourself. Most of your allyship should take place “backstage,” out of the spotlight. Continue educating yourself, amplifying Black voices, donating to Black leadership causes, protesting and demanding justice for Black lives. Those actions matter. At the very same time, support and uplift Black people — on your teams, in our organization, and in your life. For every public, external action you take for racial justice, I invite you to take an action inside our walls with that same spirit. To my Black colleagues: I know you’re not okay. I’m not okay either. We have been fighting for justice every day for 400 years and today we are grieving, we are enraged, and we are exhausted. I see you, I’m with you, I am you. We are not alone in our grief, not abandoned in our anger, not uncared for in our exhaustion. We are in this with each other, with the legacies of our ancestors and the vision of our youth. With the wisdom of our elders and the unwavering guidance of our leaders.

As colleges and universities around the country attempt to resume some semblance of in-person education this fall, many schools are requiring their students to download COVID-19 apps as a condition of returning to campus. These apps vary in what they do, but we are highly skeptical of, or outright opposed, to many of them. It is unlikely that any of these apps will make a significant difference in stemming the spread of the coronavirus on campuses, and it appears that many such apps invade students’ privacy. Many of them, as professor of sociology and technology Zeynep Tufekci argues, are merely “performative” on the part of college administrators — an effort to make a show that they are doing something — and will likely prove to be actively counterproductive.   In public institutions, these app installation requirements represent a government demand that citizens install a particular piece of software on their personal phones. It is true that the current outbreak constitutes an extraordinary situation, but we don’t want this to open the door to a future where people become prisoners of their phones, as various government agencies use compulsory app installation rules to turn them into enforcement devices for all kinds of legal and administrative rules.   It is difficult for us at the ACLU to track what is happening at thousands of schools across the United States, but we encourage returning students and staff being asked to download apps onto their personal devices to ask some sharp questions of school administrators.   1. What does it try to do? Does it administer daily health surveys, remind you to get tested, or provide daily exposure notifications? Does it connect to testing or treatment regimes? Will it help you get in touch with campus health services, or inform you where you can get tested? Does it record your movements or the people that you are near? (We are skeptical and have raised many questions about both location tracking and

As a direct result of the immense courage of our clients and three years of litigation, the Trump administration has officially abandoned its policy of preventing young immigrants in its custody from accessing abortion care. Yesterday, the administration adopted a new policy that prohibits Office of Refugee Resettlement (ORR) staff and staff employed by any ORR-funded shelter from blocking or interfering with unaccompanied pregnant minors’ access to abortion. ORR’s adoption of this new policy was a condition of our agreement to dismiss our case, which we have done today. It was three years ago that our heroic client Jane Doe — who at the time was 17 and was seeking refuge in the United States on her own — took on the Trump administration. In September 2017, we learned that ORR was trying to stop Ms. Doe from having an abortion through her fierce guardian ad litem, Rochelle Garza, and Texas-based Jane’s Due Process.  Pursuant to the orders of then-ORR Director Scott Lloyd, Ms. Doe was effectively held hostage in the shelter where she was residing for over a month. The federal government prevented her from leaving the shelter to attend any abortion-related appointments; forced her to undergo a medically unnecessary ultrasound and to receive religious “counseling” from an anti-abortion crisis pregnancy center, where they also prayed over her; and she was kept under intensive surveillance. Lloyd also instructed staffers to inform Jane Doe’s parents of her pregnancy and abortion request against Ms. Doe’s express wishes, and despite the fact that she had already obtained a court order permitting her to proceed with her abortion without involving her parents. We rushed into court on behalf of Ms. Doe, and after weeks of court battles, obtained a court order allowing her to access abortion. Since then, we have fought alongside Ms. Doe and on behalf of our other plaintiffs, Jane Poe, Jane Roe and Jane Moe, who were also subjected to ORR’s coercive, anti-abortion tactics, to stop the federal government from commandeering the reproductive decisions of all young immigrants in its custody. Today, we are able to proudly declare that justice has finally been served. Our success is especially meaningful for Ms. Doe, who fearlessly represented hundreds of others to ensure that what happened to her would never happen to anyone else. In response to our victory, she said, “I am happy to know that my fight means that other young women like me will be able to make the decision about whether to become a parent for themselves.” We are certainly taking a moment to celebrate, but the fight for Ms. Doe’s vision of “reproductive freedom for all” is far from over — including for others currently in immigration detention. Indeed, the recent allegations from the Irwin County Detention Center that a government-contracted doctor performed unwarranted gynecological procedures on women in ICE detention are very disturbing, especially in light of our country’s long history of forcibly sterilizing Black and Brown people. These reports follow weaponize the COVID-19 crisis to prohibit abortion under the guise of protecting public health, a terrifying preview of what would happen if Roe v. Wade were overturned. And with the devastating passing of Justice Ruth Bader Ginsburg, the balance of the Supreme Court could soon be shifted against the constitutional right to abortion. In light of President Trump’s vow to only appoint justices that would overturn Roe v. Wade, it is no exaggeration to say that the future of legal abortion is at stake. So, we celebrate with one eye on the Supreme Court, and the other on the road ahead. We’ll continue to fight for access to reproductive health care for people in federal custody and beyond to ensure that the Jane Doe’s victory does not become hollow and her vision for the future is realized: that all people are able to access reproductive health care, including abortion, without obstacles, shame, or stigma.

George Washington University law student Dorea K. Batté saw the texts, missed calls, and voicemails pour into her phone by the hundreds. When she blocked the number they were coming from, her stalker found a way to use different numbers to contact her. She kept blocking the numbers; he kept reaching her using new ones. Feeling helpless and overwhelmed and after warning her stalker twice to stop contacting her — to no avail — Batté finally went to her law school’s Title IX office to get help. As a reminder, Title IX is the federal law that prohibits sex discrimination — including sexual harassment — in education. Batté wasn’t trying to get anyone in trouble; she just wanted the harassment to stop. So when her school offered a non‑disciplinary solution to her Title IX complaint — a mutual no-contact order, where neither student could interact with the other — she gladly accepted. The order was informal, requiring nothing more than agreement by both parties. It involved no disciplinary proceedings and no disciplinary findings. Batté was assured that the “administrative order” did not go into her academic record or appear otherwise in anything that would show up in a background check. The no-contact order worked: Batté had no further problems with the other student. Unfortunately, the same can’t be said for Batté’s interactions with GW. After applying for admission to practice as an attorney in 2020, Batté learned the university reported to the D.C. Bar that Batté had a disciplinary record: the no-contact order that she had sought to continue her legal education harassment‑free. Suddenly, Batté’s bar admission was in jeopardy, given the “character and fitness” portion of the process. The university also put a hold on releasing Batté’s transcript. University administrators declined to fix the problem they created — and one they had promised Batté wouldn’t happen from the start. Instead a GW administrator admitted that she “understood how the complaint started.” Yet she remarkably stood by her bar report, only telling Batté that she was free to “provide whatever explanation you believe to be appropriate to the D.C. Bar.” Batté was shocked that her law school had effectively recast her as a wrongdoer for doing nothing more than trying to continue her education free from harassment. Only when the ACLU of the District of Columbia got involved did GW finally write to the bar to clarify that a no-contact order is not a “disciplinary” action — not for students accused of wrongdoing, who have yet to go through a fair investigative process, and most certainly not for complainants, who have been accused of no wrongdoing at all. Despite this seemingly happy ending, Batté’s experience continues to present a cautionary tale. When the ACLU-D.C. asked GW to reform its reporting process to prevent future students from suffering adverse consequences for invoking Title IX, the school would not commit. In a recent story about Batté’s experience, a GW spokesperson told a reporter, “Mutual no-contact orders are not disciplinary actions, they are not reported to third parties as disciplinary actions, and they are not listed as a sanction on university conduct records.” This was news to us. It is unclear whether this isolated statement, given in response to a media request and unaccompanied by any formal policy document, represents a concrete change in GW policy or an empty talking point in response to negative publicity. Accordingly, future Title IX complainants or respondents could suffer the same consequences for agreeing to what they were led to believe was a non-disciplinary course of action. There is no telling how many students at GW — and at an untold number of other schools — are still saddled with undeserved disciplinary records for trying to have a harassment-free education. The

The recent news of a whistleblower’s allegations that a for-profit ICE detention center forced sterilization procedures on immigrant women shocked many people and drew comparisons to Nazi sterilization campaigns. The ICE detention story reflects a long pattern in the United States of the coerced sterilization of marginalized populations, particularly of Black, Latinx, and Indigenous peoples. In fact, the Nazi’s borrowed ideas for their sterilization regimen from eugenic sterilization laws adopted in the U.S. in the early 20th century. Over the course of this long history, both public and private actors in the U.S. targeted the poor, the disabled, immigrants, and racial minorities for forced sterilization. Spurred by the eugenics movement popular at the turn of the century, states enacted laws beginning in 1907 that authorized the sterilization of the “feebleminded.” More than 60,000 coercive sterilizations were performed throughout the U.S. pursuant to these eugenics laws. In Buck v. Bell, the Supreme Court legitimized early 20th century eugenic sterilization practices with Oliver Wendell Holmes’ notorious declaration: “Three generations of imbeciles are enough.”   It was not until Nazi Germany adopted American eugenic theory and practice that public opinion about eugenics ultimately shifted in the United States. The counter-movement against eugenic sterilization culminated in the Supreme Court’s 1942 decision in Skinner v. Oklahoma. While Skinner rejected eugenic sterilization as a valid state goal and recognized that procreation is a basic civil right, the Supreme Court has never explicitly overruled Buck v. Bell.      Although support for eugenics-based sterilization laws waned, new justifications for coerced sterilization arose. Following World War II, concerns about population control, immigration, and welfare costs emerged as new rationales for targeting marginalized populations. By the 1960s, a new era of sterilization abuse was born, which once again focused on the poor, immigrants, and people of color.   For example, in the 1974 case of Relf v. Weinberger, a federal court found that poor people in the South were being forced to agree to sterilization when doctors threatened to withhold welfare benefits or medical care, including for childbirth. Relf involved the forced sterilization of two Black sisters, just 12 and 14 years old, who were sterilized by a federally-funded family planning clinic in Alabama. Their mother signed an “X” on a consent form she could not read, discovering too late that she had inadvertently “consented” to the permanent sterilization of her daughters Mary Alice and Minnie Relf. The federal court in Relf emphasized that coercive medical practices crossed the line between family planning and eugenics.   On the other side of the country and during the same era as Relf, the case of Madrigal v. Quilligan exposed coercive sterilization at the Los Angeles County/USC Medical Center in the early 1970s. After a whistleblower leaked evidence of rampant sterilization abuse at the Medical Center, a group of women filed a lawsuit alleging that medical personnel systematically coerced Mexican American women into submitting to sterilization. The Madrigal case involved women whose primary language was Spanish and who had undergone a tubal ligation after childbirth by cesarean section. Hospital staff repeatedly approached the women for consent to sterilization while they were in the midst of labor — some after being heavily medicated — and pressured the women into signing English language consent forms that they could not understand.   A medical student who was a firsthand witness on the maternity ward testified about what she viewed as the Medical Center’s concerted effort to reduce the birth rate of racial minorities. The medical student detailed coercive practices she witnessed:

This week, the presidential candidates will face off in their first debate of the general election. Voters will hear Donald Trump and Joe Biden talk about their views on the COVID-19 pandemic, the economy, and the Supreme Court vacancy created by the untimely passing of ACLU alumna Ruth Bader Ginsburg. The ACLU and our supporters will be listening closely for how their answers relate to key civil liberties issues, including racial justice and reproductive freedom, just as we have throughout the presidential campaign. This cycle, the ACLU has gotten involved in the presidential campaign in a serious way for the first time. During the primaries and caucuses, our volunteers spread across the early states to get commitments (on camera) from the candidates of both parties, on issues like access to abortion and immigrants’ rights. In fact, it was our volunteer, Nina Grey, who secured the all-important commitment from Joe Biden to end the Hyde Amendment, which has blocked access to reproductive health care to low income individuals for decades.  Now, as we enter the thick of the general election, we’re not backing down. Instead, we’re making sure every voter understands the civil liberties issues at stake, and knows how they can safely and effectively exercise their right to vote. Our message to voters: Vote like your rights depend on it. In Michigan, we’ve launched a voter turnout campaign for the Presidential election, to build on the success of last cycle’s Proposition 3 Promote the Vote ballot initiative, which brought no-excuse absentee voting and same day voter registration to the state. We are ensuring that voters — particularly Black Michiganders, young people, and other populations positioned to benefit from the ballot measure — are educated on their rights and options, and encouraged to get to the polls. We are running a parallel voter turnout program in the other important presidential battleground of Wisconsin. We are also continuing our commitment to down-ballot races that often have the greatest impact on policies and practices that affect civil rights. Our focus on hyper-local races, like sheriffs and district attorneys, has brought about crucial improvements on bail reform, reductions in prison and jail populations, protections in access to abortion, and the end of immigration detention agreements with the federal government. Voters have the opportunity to usher in even more change in this vein on Nov. 3. In the 2020 ballot measure space, we’ve made racial justice one of our top priorities for this election cycle. Our largest financial and personnel commitments have focused on three ballot referenda with strong racial justice implications. In California, the ACLU and its affiliates will invest approximately $1 million to lift a ban on affirmative action. In Oklahoma, we have spent more than $3 million to enact far-reaching criminal justice reforms that will help address racial biases and systemic inequality in the criminal legal system. In Nebraska, we’ve invested over $1 million to fight the extortionist practices of predatory payday lending institutions, which takes $28 million a year from low-income people, disproportionately people of color, in the state. Taken together and coupled with another ballot measure investments, the ACLU is flexing its political power to advance an agenda of systemic equality — one that gets at the root causes and persistent effects of systemic racism.   We are a nonpartisan organization, and we don’t endorse or oppose particular candidates for office. But we’re involved in elections because the stakes are incredibly high for civil rights and civil liberties issues in America. The ACLU aims to educate voters about the civil liberties and civil rights records of candidates — through paid and earned media and other forms of voter communication — and encourage voters to factor those records into how they vote. At the same time, we mobilize ACLU volunteers to ensure that Americans around the country understand the potential consequences of these elections, certainly the most consequential in generations in terms of civil liberties and civil rights. Our volunteers will make millions of phone calls and send millions of text messages to voters over the course of this election. And through our new platform, Let People Vote, we’re ensuring people know how and when to vote, as well as how to get involved in their state. The ACLU takes its nonpartisan status very seriously. We are not nonpartisan merely out of tradition or to protect our tax status; we are nonpartisan because our commitment to civil rights and civil liberties drives everything we do. We have an issue-based agenda, not a party-based one. We are nonpartisan because we have had allies from all political stripes and all political parties — and opponents, also, from all points on the political spectrum. Rather than judge politicians based on their party affiliation, we judge them on their civil liberties and civil rights records and stances. We thanked Chuck Grassley — the Republican senator from Iowa — for his leadership on the First Step Act with a full-page ad in his local newspaper. And yet, we are likely to clash horns with the same Senator Grassley for refusing to defer the confirmation process for Justice Ginsburg’s successor until after inauguration. We are an equal opportunity friend and foe, but a constant advocate for civil liberties and civil rights. When we engage in politics, we do so to highlight the issues that affect our daily work and the lives of millions of Americans. Success for us is infusing a higher profile discussion of key civil liberties issues into elections and into voters’ calculus when casting their votes. We engage in electoral work because this is when citizens are most engaged, our issues are most salient, and voters have the greatest power to affect policy. It is also when politicians are most likely to take seriously what voters care about. Our goal is to make sure candidates know civil liberties and civil rights issues matter to voters and move the needle on key policies and practices. We’re trying to change hearts and minds on civil liberties issues, and therefore we have short- and long-term goals. For instance, an anti-civil liberties candidate may very well win despite our best efforts to educate voters about that race, but we will have fulfilled our mission if we’re able to increase voters’ understanding and awareness of civil liberties issues.   We, therefore, have made and remain committed to the following assurances about our electoral work: The ACLU will not endorse or oppose specific candidates for elected office. Our goal is to ensure that voters are educated about the potential consequences of an election, not to support specific candidates. The ACLU will not tell people to vote for particular candidates. Educated voters can make their own decisions. The ACLU’s job is to provide voters with the information they need to know about what is at stake. The ACLU will not coordinate with any partisan organization in electoral work. While the ACLU believes deeply in working in coalition with other nonprofits, we have no interest in partisan coordination. Our aims are different from those of a political party, and are driven by issue-based goals. (We know, for instance, gerrymandered political maps that disenfranchise voters have been drawn by both Republicans and Democrats — and we have opposed them in both instances.) The ACLU will let civil rights and civil liberties issues drive its electoral work. The ACLU is not doing electoral work to affect the balance of political power, but to drive concrete policy outcomes that matter for people’s lives. We will choose to engage in electoral races where important civil rights and civil liberties issues are at stake. And we aim to establish a mandate for politicians to enact policies that expand rights and freedoms for all. For every election we participate in, we will be able to identify a set of concrete policies and practices that have changed because of our electoral engagement and the ultimate decision of the voters. The ACLU will aim to educate voters about the consequences of specific elections. This could include issuing scorecards, hosting ACLU-sponsored issue-based town hall meetings, doing issue-focused radio ads or TV, mailers, billboards, or transit ads. The goal is to infuse a discussion of civil rights and civil liberties into a political race and to communicate to the public how the choice of elected officials leads to differences in policies and impacts on people’s lives. The ACLU will urge voters to go to the polls. It does not matter how much voters understand about an election if they do not vote. In the end, the choices that people make on Election Day have great consequences. The ACLU will encourage voters to make their voices heard. The ACLU will defend election integrity and ensure that every vote is counted, regardless of the party affiliation of the voter. In addition to our advocacy to inform and turn out voters, we engage in advocacy and litigation to ensure that every vote counts. This includes 31 lawsuits in more than 20 states, as well as pressing for laws in states like North Carolina to ensure that voters who have their mail ballots rejected have an opportunity to “cure” or fix them. With offices in each and every state, and boots on the ground in every voting jurisdiction, the ACLU is uniquely situated to ensure that every vote is counted in this critical election.  Electoral work in this frame is a natural extension of the work we have been doing for 100 years. The ACLU has never shied away from a fight when civil liberties were at stake, whether that fight was in a courtroom, Congress or a state legislature, in the streets, or at the ballot box. We ask you to join us in this important endeavor.

Wireless internet has become essential to modern life, enabling us to use our smartphones, tablets, and laptops as we move about in the world. Easy internet connectivity that comes from having Wi-Fi access points spread through office buildings, transit systems, parks, businesses, college campuses, and city streets is a public good. But Wi-Fi networks also collect information about when and where our devices connect to them, information that can precisely reveal our locations and movements. This is revealing data that shouldn’t carelessly end up in the hands of police.   That is why today, the ACLU, along with the ACLU of Pennsylvania and the Electronic Frontier Foundation, filed a friend-of-the-court brief in the Pennsylvania Supreme Court explaining why warrantless police access to people’s Wi-Fi-derived location information violates the Fourth Amendment.   The case, Commonwealth v. Dunkins, involves a police investigation into a 2017 robbery of marijuana and cash from a student’s dorm room on a Pennsylvania college campus. After receiving a report of the robbery, police went to the college IT department and got a list of all smartphones and other devices that were connected to the 80-90 different Wi-Fi access points spread across the residence hall around the time of the robbery. Because those access points each have a small broadcast radius, knowing which Wi-Fi access point a phone was connected to provides precise information about where that phone was.   Using that information, the police identified several dozen students who were in the building at the time, and then narrowed down the list to three students who lived in other dormitories. Two of those students were women, and were excluded because the suspected robbers were described as male. Police focused on the remaining student, Dunkins, and requested information about all his Wi-Fi connections on campus during a five-hour period on the night of the robbery, a detailed account of his movements over time.   The Wi-Fi location information was essential evidence at trial, tying Dunkins to the scene of the robbery. But it’s not hard to see how invasive the searches were for other students as well. By learning that two women were in someone else’s dorm rooms in the wee hours of the morning, police could infer private information about where they were sleeping and with whom. That’s none of the government’s business.   That’s why the ACLU is arguing that this sensitive location data is protected by the Fourth Amendment. And we have powerful Supreme Court precedent behind us.   In 2018, in an ACLU case called Carpenter v. United States, the U.S. Supreme Court ruled that police need a warrant to request a person’s historical cell phone location information from their cellular service provider. We have argued in other cases, including in a brief we filed in another Pennsylvania case last week, that the rule in Carpenter should apply to real-time cell phone tracking, automated license plate reader databases, long-term surveillance of homes with pole cameras, pervasive aerial surveillance, and requests for sensitive digital medical information. Today, we are arguing that this protection should apply to Wi-Fi-derived location information as well. Like the location information at issue in Carpenter, the data created whenever a phone connects to a Wi-Fi access point paints a detailed picture of a person’s “privacies of life,” and therefore deserves Fourth Amendment protection.   The prosecution argues that because Carpenter involved location information spanning days and months about one particular suspect, the shorter-term data about many people in the Dunkins case should be unprotected. But even short-term location data can reveal deeply private information about where a person goes and what they do there. And requesting information about all people who were in a particular building at a particular time will almost certainly sweep in bystanders who had nothing to do with any crime, making the search dangerously overbroad. Here, for example, two non-resident female students and their hosts were caught in the net, illustrating the privacy interests at stake.   The implications of the Dunkins case extend far beyond privacy on college campuses. Cities across the country, from Boston to New York to El Paso, have built free municipal Wi-Fi networks spanning significant geographic areas. Comcast has deployed “millions of hotspots” as part of its Xfinity service. On many of these networks, after a person connects their device the first time, they will automatically connect and reconnect to any Wi-Fi access point that is within range, generating a great deal of location information going back weeks, or even years.   Like the cell phone location data in Carpenter, Wi-Fi location information is “detailed, encyclopedic, and effortlessly compiled.” As we explain to the Pennsylvania court, it is dangerous to allow police access to this information without probable cause, narrow tailoring, and judicial supervision — in other words, police should have to get a warrant. And the Fourth Amendment might never allow a request that sweeps in precise location information about many bystanders. This case provides an important opportunity to ensure strong protections for privacy in the digital age.