News & Commentary

As people take to the streets to demand justice for George Floyd, Breonna Taylor, Ahmaud Arbery, Tony McDade, and too many other Black people who have been killed by police in recent years, journalists have joined them to bear witness. While covering these protests in cities throughout the country, journalists have become conspicuous targets for arrest, intimidation, and assault by police officers, even though (or perhaps because) they are clearly identifiable as members of the press. These apparently deliberate attacks on journalists violate the First Amendment freedom of the press, and they will not go unanswered. The ACLU of Minnesota is filing a class-action lawsuit against Minnesota’s state and local law enforcement officials to ensure that police officers who target journalists are held fully accountable for their unlawful actions. We also plan to protect another of our essential First Amendment rights: the right to protest. We’re pursuing legal actions to stop police brutality against protesters and organizers. Throughout the George Floyd protests, there have been numerous, well-documented instances of deliberate abuse against journalists by law enforcement officers. A Minnesota State Patrol officer arrested CNN correspondent Omar Jimenez and his crew during a live broadcast, despite the journalists repeatedly having offered to comply with police and asking where they could move. Los Angeles Times reporter Molly Hennessy-Fiske and photographer Carolyn Cole were chased by Minnesota State Patrol officers, tear-gassed, and shot at with rubber bullets, even though both were wearing their press credentials and they identified themselves as journalists. And police officers pepper-sprayed a group of visibly credentialed journalists, including KTSP reporter Ryan Raiche and his producer, as they were pinned against a wall. And these are examples from Minnesota alone. The Reporters Committee for the Freedom the Press and the U.S. Press Freedom Tracker have identified numerous other instances of official abuse against journalists in cities across the country

Around the country, people are bursting back onto the streets to protest police brutality and demand racial justice in the wake of the police murder of George Floyd in Minneapolis. Their message is vital, and it is correct: Police violence is one of the leading causes of death for Black men in America, and police officers who kill rarely face any type of accountability. This needs to stop. Yet in too many cities, the police response has been only more brutality. In New York City, police vehicles drove into protesters and one officer pulled a Black protester’s mask down to directly pepper spray him in the face. Near the White House, police tear gassed peaceful protesters in order to facilitate President Trump’s scheduled photo op. Reporters have also suffered at the hands of police, including one reporter who was shot in the eye with a rubber bullet. President Trump has insisted that police should “dominate” and “do retribution” against protesters. That is authoritarian, and the use of punitive measures or crowd control weapons to squelch peaceful protest violates both domestic and international law. In the context of protests, the proper role of law enforcement is to facilitate First Amendment activity by enabling peaceful protest. Officers cannot ban or interrupt speech because of the potential for disturbance or disorder. Where specific acts of illegality arise, officers can deal with those directly — not by breaking up a protest or painting all protesters with a broad brush. Indeed, in cities like Newark, New Jersey where law enforcement officials consciously focused on de-escalation over last weekend, protesters were able to speak out in relative peace. Elsewhere, the extreme and indiscriminate brutality of officers against protesters, those documenting protests, and those doing both has only deepened the pain and anguish of Black communities, and serves as a pointed illustration of exactly how little Black lives matter to these police departments. Amidst the COVID-19 pandemic, police failures to facilitate peaceful protest also increase health risks for police, protesters, bystanders, and the community at large. Specific police tactics like kittling — essentially trapping protesters and bystanders into a limited, often crowded area with only one point of exit controlled by officers — and mass arrests have been the subjects of past ACLU lawsuits. Today, they are even more troubling because they heighten the risk of infection by forcing large numbers of people closer together. Similarly, arresting protesters and holding them overnight is

Pride has never been just about the parties. To the LGBTQ community, Pride is about staking our place in the world and speaking truth to power. It’s about making clear that we’re here, we belong, and we are resilient — resilient together.   As our Trans Justice Campaign Manager LaLa Zannell has said: “For many Black and Brown queer and trans people, gathering in person has always come with a health and safety risk — including from law enforcement, and others who feel they have the right to harm us for simply being who we are … For many of us, this is not the first pandemic that shows the injustices in our health care, economic, and criminal justice systems.”     Whether you’re celebrating Pride 2020 over Zoom, on the phone, or standing six feet apart from your friends donning rainbow masks — the message of Pride remains, and it’s stronger than ever. The history of Pride is rooted in the LGBTQ community responding to police violence and abuse of LGBTQ people and sex workers and those who fought back.   This year, we’re showing what Pride means to us with a new Pride 2020 zine that sums up the year in LGBTQ rights, the meaning of pride to our community, profiles of trailblazers in Aimee Stephens, and the fight ahead as we tackle bans on trans athletes, attempts to license discrimination in the name of religon, and more. Plus, you’ll get a crossword, word search, a coloring book page, and more fun, socially distant ways to celebrate pride in 2020. This is how we stay resilient.

The right to protest is fundamental to our democracy and enshrined in the First Amendment to the U.S. Constitution. In response to the death of George Floyd at the hands of Minneapolis police, people across the country have taken to the streets to demand racial justice and an end to police brutality and systematic racism against Black people. Especially in the time of COVID-19, it’s important to know your rights and stay safe while protesting. In this video taken over the weekend at a protest in Brooklyn, New York, Emerson Sykes, staff attorney for the ACLU’s Speech, Privacy, & Technology Project, shares important information on how to protect yourself and others while protesting – and what rights you have when interacting with police.

Anthony Romero started his job as executive director of the ACLU just seven days before September 11, 2001, and he’s been with us ever since. The subsequent “war on terror” presented new and widespread threats to civil rights and civil liberties. Now, he faces a new challenge: leading the ACLU during the COVID-19 pandemic. He joined the podcast this week to discuss how the ACLU is navigating the current moment. “In moments of crisis, in moments of fear, civil liberties are often imperiled,” Romero told our host, Emerson Sykes. The organization has had to “adjust to our understanding of what liberty and freedom meant at a time like this.” While the ACLU’s values and goals have largely not changed during this pandemic, Romero discusses how our work continues to evolve and grow over time, and how our vigilance is more necessary than ever. You can listen to this episode here:

Yesterday, President Trump signed an executive order aimed at bullying social media companies and online platforms into changing how they moderate content online. The order came the day after President Trump tweeted that Republicans feel that social media platforms silence conservative voices. And, notably, just days after Twitter’s decision to place a fact-checking label on one of Trump’s tweets for the first time, calling out his blatantly false tweets about mail-in ballots and directing users to trusted journalistic sources countering the President’s lies.   There is one part of the executive order we agree with. Its opening section identifies how online speech has become a central feature in public dialogue, and raises concerns about the monopoly power of a handful of private companies to control such an important forum for debate. We agree that Twitter and Facebook should be careful about their own content decisions, because they affect all of us. But that’s where our agreement ends. The remedy President Trump proposes in the rest of the Executive Order is far worse than the problem it identifies. In the name of free speech, it threatens official retaliation for speech that displeases the government.  Let’s start with the Constitution, which prohibits retaliation for protected speech. Trump is telling Twitter, Facebook, and other platforms, “If you speak out in ways that displease me,” for example, calling out his lies, condemning his views, or adding context to his distortions, “I will make things much harder for you.” The First Amendment forbids such blatant, thin-skinned efforts to stifle expression — whether they are effected through formal or informal means. In the short term, such threats chill free expression, and are impermissible for that reason.    At the same time, the extent of the order’s long-term effects remain unclear. The President has no more authority to amend an act of Congress or a provision of the Constitution than he does to silence those, including Twitter, who condemn his views and his policies. He can’t constitutionally do any of these things on his own, yet the order appears to attempt to do all three. It directs the Commerce Department to ask the FCC to make a rule adopting the President’s interpretation of an important shield from liability for online platforms known as Section 230 of the Communications Decency Act (CDA 230). The FCC has no obligation to take up the request, and, even if it did, no authority to interpret CDA 230 in the ways the order suggest because they are contrary to the law’s clear language. However, that doesn’t mean it won’t try. Other provisions, including a threat to withhold government contracts and advertising from online platforms whose speech decisions about what to post, not post, or comment on, level a direct threat of retaliation for protected private speech. And given the government’s substantial resources, that threat cannot be considered idle. It also cannot be considered constitutional.  That brings us to one of the biggest problems with the executive order. It blames CDA 230 for online censorship, which entirely misconstrues the function and purpose of that statute. This fundamental misapprehension appears to be

Without many of us even realizing it, our use of the Internet reveals deeply private information about us, ranging from the contents of our communications to details about our finances, health, and exact location. This information — especially when aggregated — provides an intimate window into our personal lives and can reveal a great deal of personal, private information about us, like our health care needs and personal or political beliefs.   For each of us, there’s at least one entity that can see perfectly through that window: our “broadband information access service” provider, more commonly known as an Internet service provider or ISP. In order to even access the Internet, we must each rely on an ISP; our computers and phones have to connect to their networks before we can send and receive information online. As a result, they are uniquely positioned to collect, retain, and analyze troves of personal information about us.   Without regulation, they can use our personal information in any manner they please. As their track record shows, they often choose to use it in privacy-invasive ways, like creating extensive portfolios of their users’ online activity and injecting “super cookies” that allow third parties to track individual customers.   This perfect storm raises not only serious online privacy concerns, but free speech and information security concerns, too. Unwanted surveillance can chill us from speaking freely, deterring us from voicing unpopular or simply private opinions. Equally, access to personal information, should it end up in the wrong hands, could open us up to everything from personalized phishing emails to identity theft and bank account fraud.   In an effort to quell this storm and put some control back in consumers’ hands, Maine passed “An Act to Protect the Privacy of Online Customer Information.” That law requires ISPs to get approval from customers before selling or using their personal information — everything from social security numbers and billing information to details derived from Internet use, like browsing histories and app usage, precise geolocation, financial and health information, and even the contents of communications.   A group of ISPs are now challenging this privacy law, claiming that it infringes on their First Amendment rights by unconstitutionally restricting how they use or disclose customer personal information.   They’re right that this law regulates their speech: It governs the use and dissemination of information. But they’re wrong to call it unconstitutional.   As we explain in a friend-of-the-court brief we filed with the ACLU of Maine, the Electronic Frontier Foundation, and the Center for Democracy and Technology, Maine’s law regulates commercial speech, a category of speech that relates solely to the economic interests of the speaker and its audience. And the law satisfies the scrutiny that applies to regulations of commercial speech because it is narrowly drawn to advance the state’s interests in protecting consumer privacy, free expression, and security.   The law focuses on ISPs: entities that are uniquely positioned to see everything we do, say, and even think online. Consumers have no choice but to use ISPs if they want to access the Internet. And the law does not ban their use of customer information entirely; it simply requires consent from customers first. Since we have no control over whether that information — which relates entirely to our use of a commercial service — is created and shared in the first place, surely we should at the very least have some say in what ISPs can do with it. It speaks volumes about the intent of the ISP companies — and the money they make off the collection and use of private customer information — that they would rather file an expansive lawsuit than simply ask their customers for permission to use their information.   As an organization deeply committed to the protection of both free speech and data privacy, we take these issues seriously. Maine’s law gives us the power to say yes or no to the collection and use of our private information. It puts the decision about when ISPs can use and disclose customers’ personal information back where it belongs: in the hands of Internet users. Despite the ISPs’ insistence to the contrary, Maine’s law does not violate their speech rights, and in fact does a great deal of good in protecting consumers’ privacy rights. Other states are already looking to follow in Maine’s legislative footsteps by requiring customers’ approval before allowing ISPs to share or sell their personal data — as they should. Perhaps that is what is scaring the ISP companies the most.  

While there are many policies drafted and bills legislated, really the only components that comprise successful reentry to the community are skills, support, and shelter. Thinking about what I needed when I came home from prison looks much different now than it did 20 odd years ago. Back then, I thought serving my time in prison was my punishment; I didn’t know I was facing a life sentence after leaving prison. And for many people reentering society after leaving incarceration, that’s what reentry is — a life sentence.   When the corrections officer stopped by my bunk to tell me I was being paroled, my world stood still, and my head spun. All of a sudden life after prison was real, and my time inside was finally over. After 2,095 days, I was finally going home, and I had no idea how unprepared I was for freedom. I thought it was going to be as simple as the woman that taught the pre-release class said it would be. She said all I had to do was be honest about my past and be willing to work hard. So, as I sat in that hot, stuffy gym with 750 other men waiting to be released from prison, I thought I had it all worked it out. It all seemed so simple.   Walking out of prison I was handed a check for $50 and a bus voucher. The voucher allowed for travel to Dallas or Houston, and from there I had to purchase my own bus fare to Austin. I was expected to provide myself with clothing, food, travel, and shelter with that same $50. To say I was being set up to fail is being gracious. I was released on Thursday afternoon and didn’t have to report to my parole officer until the following Monday morning, so I spent the weekend with family I hadn’t seen in years and convinced myself that everything was going to work out fine.   When I reported to my parole officer that Monday, he informed me I was to spend the next 60 days on an electronic monitor. The monitor was supposed to be affixed to my ankle, but it was too small, so I was forced to wear it on my wrist. The conditions of my release mandated that while I was on parole I was to be gainfully employed. Who did my parole officer think was going to hire me with an electronic ankle monitor on my wrist? How did he think I was going to explain that to a prospective employer?   He didn’t seem to think about how the monitor would affect my life or even whether it would affect my ability to comply. He didn’t care that I was unemployable. He didn’t care how many times I was denied an interview after my application was reviewed and I had disclosed my conviction. When I sat in that prison gym before my release, I came up with a plan to apply at McDonald’s and work my way up from there. Aim low, I told myself. Don’t get your hopes up. Now, with a monitor on my wrist, I was worried that even this plan wouldn’t work out.   I had convinced myself if I aimed low enough, I was bound to hit my target and everything would work out fine. There was no sense in aiming high, those days were far behind me. Those halcyon days of youth had been stripped from me, right along with my dignity and self-worth. Aim low, I thought, so when I didn’t hit the mark I could remind myself it was because I was a convicted killer. Not formerly incarcerated, but a felon convicted of voluntary manslaughter, undeserving of anything other than failure.   What I needed was someone who had been to prison and was successfully navigating reentry to mentor me. I needed someone to tell me that applying for a job, for housing, or for a loan was different for folks with a felony conviction. Having someone tell me that being a father, a son, and even a brother was totally different after prison would have made an enormous difference in my life. My family needed to be informed about the limitations that were going to be placed on me and my ability to find employment, housing, or treatment. My church needed to see me as who I had become, not who I was. Creating pathways to successful reentry is just as incumbent upon the community as the individual, as transformation and redemption is expected, if not demanded, from formerly incarcerated individuals.   There can be no sustainable drop in rates of recidivism until we embrace successful reentry as an antidote for mass incarceration. Society must embrace the reality that 95 percent of the people currently in prison are coming home, and we have to find a better way to onboard them back into our families, our neighborhoods, and our communities.

For several years, a little-known start-up based in New York has been amassing a database of billions of our faceprints — unique biometric identifiers akin to a fingerprint or DNA profile — drawn from personal photos on our social media accounts and elsewhere online. The company has captured these faceprints in secret, without our knowledge, much less our consent, using everything from casual selfies to photos of birthday parties, college graduations, weddings, and so much more.   Unbeknownst to the public, this company has offered up this massive faceprint database to private companies, police, federal agencies, and wealthy individuals, allowing them to secretly track and target whomever they wished using face recognition technology.                                                       That company is Clearview AI, and it will end privacy as we know it if it isn’t stopped. We’re taking the company to court in Illinois today on behalf of organizations that represent survivors of sexual assault and domestic violence, undocumented immigrants, and other vulnerable communities. As the groups make clear, Clearview’s face surveillance activities violate the Illinois Biometric Information Privacy Act (BIPA), and represent an unprecedented threat to our security and safety.   Face recognition technology offers a surveillance capability unlike any other technology in the past. It makes it dangerously easy to identify and track us at protests, AA meetings, counseling sessions, political rallies, religious gatherings, and more. For our clients — organizations that serve survivors of domestic violence and sexual assault, undocumented immigrants, and people of color — this surveillance system is dangerous and even life-threatening. It empowers abusive ex-partners and serial harassers, exploitative companies, and ICE agents to track and target domestic violence and sexual assault survivors, undocumented immigrants, and other vulnerable communities.   By building a mass database of billions of faceprints without our knowledge or consent, Clearview has created the nightmare scenario that we’ve long feared, and has crossed the ethical bounds that many companies have refused to even attempt. Neither the United States government nor any American company is known to have ever compiled such a massive trove of biometrics.   Adding fuel to the fire, Clearview sells access to a smartphone app that allows its customers — and even those using the app on a trial basis — to upload a photo of an unknown person and instantaneously receive a set of matching photos.   Clearview’s actions clearly violate BIPA. The law requires companies that collect, capture, or obtain an Illinois resident’s biometric identifier — such as a fingerprint, faceprint, or iris scan — to first notify that individual and obtain their written consent. Clearview’s practices are exactly the threat to privacy that the legislature intended to address, and demonstrate why states across the country should adopt legal protections like the ones in Illinois.   In press statements, Clearview has tried to claim its actions are somehow protected by the First Amendment. Clearview is as free to look at online photos as anyone with an internet connection. But what it can’t do is capture our faceprints — uniquely identifying biometrics — from those photos without consent. That’s not speech; it’s conduct that the state of Illinois has a strong interest in regulating in order to protect its residents against abuse.   If allowed, Clearview will destroy our rights to anonymity and privacy — and the safety and security that both bring. People can change their names and addresses to shield their whereabouts and identities from individuals who seek to harm them, but they can’t change their faces.   That’s why we’re teaming up with lawyers at the ACLU of Illinois and the law firm of Edelson PC, a nationally recognized leader in consumer privacy litigation, to put a stop to Clearview’s egregious violations of privacy. We are asking an Illinois state court to order the company to delete faceprints gathered from Illinois residents without consent, and to stop capturing new faceprints unless it complies with the Illinois law.   There is a groundswell of opposition to face surveillance technology, and this litigation is the latest chapter in an intensifying fight to protect our privacy rights against the dangers of this menacing technology. Across the nation, the ACLU has been advocating for bans on police use of face recognition technology, leading to strong laws in places like Oakland, San Francisco, and Berkeley, California, and Springfield and Cambridge, Massachusetts, as well as a statewide prohibition on use of the technology on police body cams in California.   We won’t let companies like Clearview trample on our right to privacy.