News & Commentary

Every 10 years, the federal government conducts a census to count everyone living in the United States. For people of color, especially Black people, the census has traditionally been exclusionary and deeply flawed.

Congress’ third bill addressing the impacts of COVID-19, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), was a necessary attempt to respond to this public health crisis but its exclusion of immigrant communities is downright racist and xenophobic. Immigrants were cut out of provisions to ensure COVID-19 testing and care as well as economic relief, undermining our collective safety and economic future. COVID-19 doesn’t discriminate, Congress’ response shouldn’t either. It’s essential that another bill — one that encompasses everyone — be introduced and passed as soon as possible. 

Last year around this time, my biggest worry was how the inclusion of the Trump administration’s proposed citizenship question would depress participation in the decennial census. Thankfully, our Supreme Court victory means there is no citizenship question on the census. Now, I have a new worry: a global pandemic and the health of my loved ones. As it turns out, the 2020 Census plays a role here too, as it will have enormous implications on our health care for decades to come. 

I was fired from my job as funeral director of a Detroit-area funeral home in 2013. I always received good reviews and had recently been promoted. The reason I was fired: I am a transgender woman.    What happened to me wasn’t right, and I know it happens to many other people. So I contacted the ACLU. Firing someone because of who they are is discrimination, and it’s against the law.    Right now, my case is before the U.S. Supreme Court and I am waiting for a decision that could come at any moment. The question is whether transgender people have the same protections from discrimination on the basis of sex as everyone else.    No matter what the court decides, transgender people will still be here and we will still be fighting for the opportunity to work, go to school, and see a doctor — just like everyone else.    This journey has given me lots of time to think about the importance of transgender people being visible. On Transgender Day of Visibility, which happens annually on March 31, I’m sharing some of what visibility means to me.    One of the first things that happened after my case was filed was a media story that used a photo that wasn’t of me. At that moment, I started to realize how important it was for me to be seen as myself, not just at home, not just at work, but everywhere.    As more people learned my story, countless transgender people have told me how much my story has meant to them. In my own life, being able to meet other transgender people — from my neighbors in Michigan to Laverne Cox — there’s no doubt that meeting transgender people makes a difference. 

This piece first appeared on Just Security. If asked to give up their privacy in the interests of stemming the coronavirus, many Americans might be inclined to say yes. But the answer requires more nuance, both because there are serious tradeoffs to be made, and because sacrificing privacy may actually backfire. Consider, for example, serious discussions reportedly underway between the tech industry and the White House over how our cellphone location data might be used to help in the fight against COVID-19.  Having defended privacy for 100 years, we at the American Civil Liberties Union recognize that in extraordinary times, different balances may be warranted. The virus poses grave risks, so we should not write off tools that might help mitigate the problem. But we should be skeptical about calls to embrace Chinese-style tracking as a helpful measure in the current emergency. And any uses need to incorporate privacy protections if they are not going to be counterproductive. Some have suggested, for example, that companies might share anonymized, aggregate data to help epidemiologists answer questions such as how many people are moving between adjacent neighborhoods, towns, or states each day. Anonymization alone does not solve all privacy problems; such data can often be re-identified, for example, by tracing a person’s movements to their home and workplace. On the other hand, given the urgency of our situation, analysis of aggregate data by companies might prove valuable if it comes with strict safeguards. There may also be other privacy-protective ways that we could make use of individualized location data once we get beyond the current world of universal social distancing and hospitals in crisis. Some experts say that we may enter a phase of chronic, lower-level waves of infection where traditional epidemiological contact tracing and targeted isolation once again become a principal means of combatting the disease. In this mode, some countries have used location data in cooperation with those who are infected to help them retrace their movements, and provide the public with lists of places and times where infected people have been each day so people can determine for themselves whether they might have been exposed. But the risk is that without the strongest privacy safeguards, such uses of location data may deter people from stepping forward and getting tested for COVID-19 in the first place—and that serves no one’s interest. South Korea’s program, for example, which lacks such safeguards, has left many people more afraid of social humiliation than of the disease itself. If location data is to be used, there must be strict policies ensuring that, whenever possible, the patient has consented to such uses; minimizing any data sharing; requiring deletion of the data when there is no longer a need to hold it; and, where it is anonymized, ensuring that no effort be made to re-identify it. If the government obtains any data, it must be fully transparent about what data it is acquiring, and from where, and how it is using that data. Any programs should come with clear sunsets to ensure they don’t outlive the effort against COVID-19. If we are to deploy location data for public health, policies must also ensure that it’s not used for any purposes beyond that effort. In particular, it should not be used for punitive or law enforcement purposes. Public health experts have found that a law enforcement approach to combatting disease typically sparks counterproductive resistance and evasion, and tends to sour the relationship between citizens and their government at a time when trust is of paramount importance. Good public health measures leverage people’s own incentives to report disease and help stop its spread. Overall, good privacy protections are vital for engendering public trust, which is vital to an effective fight against the pandemic. The lack of such safeguards risks having the opposite effect.We should also not overestimate the effectiveness of location data in fighting COVID-19 — and should be especially leery of indiscriminate mass collection of location data. The urgent need at the moment, according to public health experts, is to ramp up testing capability, suppress transmission through social distancing measures, and ready our under-prepared hospitals for a mass influx of patients who can’t breathe. We are not hearing a cry from the public health profession for phone tracking — and the last thing we want to do is divert attention, expertise, and financial resources from these critical tasks. That’s not stopping self-interested, privacy-invading private companies from embracing the coronavirus epidemic as a way to market their products, legitimize their activities, and launder their reputations. Some of those companies engage in mass location tracking without individuals’ meaningful awareness or consent and for questionable purposes. They would no doubt love to normalize these practices and cement them in American life. We should also be closely scrutinizing any government attempts to exploit this crisis to grab additional surveillance powers not necessary for defeating COVID-19. But even if we had more trust in the companies that are pitching these proposals, there would be significant practical and legal problems with using Americans’ mass location records to fight this disease. Technology and policy experts are saying that the tools the government might use to monitor the public’s movements and interactions won’t work against the virus. Unlike China, we do not have or want a comprehensive system for accurate tracking of every person. The data that exists is dispersed among different companies that collect it using a variety of technologies and that store it in different formats. The government would also face steep legal hurdles in demanding access to any location data. Cell phone location data is also often unreliable. Anybody who has opened a map application only to discover that their phone thinks they are two blocks away from where they’re standing understands that this is true. Even China reportedly found that location data calculated through cell-tower triangulation generated too many false positives and was wasting manpower. This is yet another reason that government officials need to listen to stakeholders and technologists who are not trying to promote private companies’ interests in infection control programs. We are facing a terrible crisis, and Americans are rightly frightened. Times of emergency require a different weighing of privacy considerations. We need to seriously consider how technology can help us—but we also need to make sure that, when we’ve made it past this crisis, our country isn’t transformed into a place we don’t want to live.

The COVID-19 coronavirus outbreak that has ravaged our nation and world has had many jarring moments. For parents and their children, one of those came with the mass closing of our schools. Tens of millions of children faced having their educations grind to a halt, including 1.1 million children in New York City’s public schools alone — a number which includes two of my own. While Americans have grown understandably weary of the tech industry, which repeatedly puts its profits ahead of Americans’ personal privacy, recent offers by companies like Google (via its Google Classroom app) and GoGuardian to provide their remote learning platforms to students for free during the pandemic seemed like a godsend. After all, it would enable U.S. students, at no cost, to continue to learn from the safety of their own homes.  Maybe the tech industry tiger is changing its stripes. Or maybe the tech industry devil just glued a fake halo on top of its horns. The answer to that question all depends on whether they will insist on undermining students’ privacy as a condition of helping them. For years, the ACLU has expressed concerns about how the tech industry’s educational products — often classified under the name EdTech — are used to gather massive amounts of highly personal student information. Further, some of these products troublingly enable EdTech companies and schools to spy on students despite no evidence of wrongdoing — a practice that further exacerbates the over-disciplining of students of color. We at the ACLU have launched national efforts to encourage states to pass laws protecting student privacy, offered suites of model bills to assist their efforts, and spoken out against ever-increasing student privacy invasions. Now that the COVID-19 pandemic has created an unprecedented opportunity for EdTech companies to make the use of their privacy-violating educational products nearly universal, there is a real risk that these companies, under the guise of a generous act, will use this opportunity to create personal information dossiers on an entire generation of young Americans. One could argue that such an interpretation is very cynical; it is a textbook example of looking a gift horse in the mouth. Perhaps it is. In fairness, the tech industry has made trillions of dollars giving away “free” products that are not actually free: Americans, knowingly or unknowingly, pay for their products by giving them troves of personal information, which the companies then use to make staggering profits. The good news is that Americans and their governments should not — and do not have to — feel trapped into choosing between students’ education and privacy rights. There is a simple, four-part approach governments and school districts can and should take when accepting (or continuing to use) the “free” remote learning platforms EdTech companies like Google and GoGuardian have offered.  If these EdTech companies are truly acting in the best interests of students and teachers here, they shouldn’t object at all. It’s as simple as this: Step One: To the extent these remote learning platforms are being provided for free specifically to help students learn remotely, that is a wonderful act and should be appreciated. Let’s start by thanking these EdTech companies for their generosity. Step Two: Use of these “free” remote learning platforms, which will likely feel mandatory for students and families during this crisis, should not be conditioned on students allowing EdTech companies to gather up and retain their private and personal information. Governments, including school districts, should insist EdTech companies limit their personal information gathering to only what is directly necessary for their platforms’ remote learning functionality. Moreover, these EdTech companies should be required to expunge all the personal information they gather during this crisis when it resolves, unless a student specifically opts-in to it being retained (via a clear, post-crisis request, and not as part of a broad user agreement they sign now under pressure). Step Three: Governments and school districts should insist EdTech companies disable any surveillance functions that may accompany their remote learning platforms, including communications and social media monitoring, keyword alerts, and web filtering functions.  Students and their families need these platforms to learn at home, not to allow companies and school districts to spy on them; receiving the former should not be conditioned on exposing oneself to the latter. Step Four:  To ensure the EdTech companies keep their promises, they should consent to government auditing of their compliance after the pandemic subsides. If the EdTech companies are truly providing their remote learning platforms for free to help students and their families during this terrible and challenging time, they should have no problem instantly agreeing to these conditions.  If they balk, we will know they are once again the devil in disguise.

Since the Trump Administration first unrolled its policy of forcing migrants to wait in Mexico for their asylum hearings, advocates have been warning that the practice places them in danger. Now, the global coronavirus outbreak is putting an exclamation point on those warnings and adding a new, frightening layer of risk into the lives of asylum seekers stuck in Northern Mexico.

Many of us are scared for our families and friends right now because of COVID-19. Every day we learn new information about the virus. Today we know that all of us, even the young and healthy, are at risk of this disease and serious complications from it. We cope and try to make ourselves safer, whether by social distancing, washing our hands more, or eating nutrition-packed meals. But people in government custody — including the 37,000 immigrants held in immigration jails and prisons throughout the country, and thousands more held near the border — don’t have these options.  They are being held in deadly conditions. That is why in addition to calling on public officials to downsize prisons and jails in the criminal legal system, the ACLU is calling on the government to utilize all available options to reduce the number of people in immigration detention. Ultimately, no one, whether they are a citizen or an immigrant, should be forced to live in conditions that imperil their lives during this public health crisis. Immigrants in government custody are forced to live, sleep, and eat together. Some spend nearly all day in large rooms filled with closely packed bunk beds, or just long concrete benches. Others live in dank two-person cells, sometimes with minimal ventilation. Dozens of people share toilets and showers, sometimes with no divider and without disinfection between use. Social distancing is not an option. With everything we’ve learned from the Centers for Disease Control, we know these conditions are dangerous, even deadly. For immigrants in detention, the tools for basic hygiene aren’t available either. Many people don’t have access to soap, let alone hand sanitizer. In Border Patrol stations, many immigrants are detained in overcrowded cells without ready access to sinks and showers. Detained people have described feeling like “sitting ducks, waiting to be infected.” One detained man in New Jersey said he and others were on a hunger strike to try to obtain soap and toilet paper — and that guards reportedly said, “Well, you’re going to have to die of something.” It can be hard if not impossible to get medical attention, including access to previously prescribed medications. For example, it is not uncommon for detained immigrants to be given Tylenol for serious illnesses, including HIV and pneumonia. It’s no wonder that since October, 10 people have died in ICE custody. And over the past two years, at least seven children have died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether. The ACLU has long said that the vast majority of people in immigration jails are being detained unnecessarily. They are being held for processing at the border, or are awaiting their immigration hearings or another administrative action — yet they have completely lost their liberty. COVID-19 lays bare the injustice, and the often life-or-death stakes, of their detention. As public health experts have already stated, “social distancing through release is necessary to slow transmission of infection.” ICE and CBP must immediately start reducing the number of people in detention, starting with the most vulnerable, to prevent the continued spread of COVID-19 to both people in immigration jails, and the staff who work in them. We are far from alone in raising the alarm bells on this. There is an “imminent risk to the health and safety of immigrant detainees,” according to physicians who have investigated immigration prisons on behalf of the Department of Homeland Security (DHS) and are experts in the field of detention health. They’ve warned that once an outbreak occurs in immigration detention, it will spread quickly and have a devastating impact. Mass incarceration of immigrants also risks the health and safety of the people who work in these facilities, as well as the communities they return home to. Last week, ICE told Congress it would “utilize alternatives to detention, as appropriate,” but an ICE official later reportedly clarified, “there has been no announcement related to releasing individuals that are currently detained.” We don’t know how serious the government is about utilizing alternatives. But we do know that options for reducing detention are already on the table. As we pointed out in our lawsuit, Dawson v. Asher, DHS could use its parole authority to release people on medical grounds, including people whom the CDC and other medical experts have identified are particularly at risk: those over 50 and those who have an underlying medical condition, such as lung or heart disease. DHS has a range of options to release people from detention: on bond, humanitarian parole, or an alternative-to-detention program. Even a former ICE chief, John Sandweg, called on ICE to utilize its options, warning that an outbreak will “spread like wildfire.” Many people in ICE jails and prisons have family or sponsors in the U.S., with whom they could live and, if necessary, quarantine safely. Likewise, people in CBP custody could be released to family, community sponsors, or shelters with proper precautions in place There has perhaps never been a more urgent time for ICE and CBP to reduce the number of people they’re holding in detention — this is a health crisis and prevention and containment is key. Already, at least two staff members and one detained individual at immigration jails in New Jersey and Texas have tested positive for COVID-19, potentially putting at risk hundreds of detained people and staff. Our nation’s collective health depends on the Trump administration following the advice of doctors, scientists and public health experts. These experts are telling us that social distancing is necessary to curb COVID-19. They are also telling us that access to adequate healthcare is critical. None of these are options for people trapped in immigration detention, and for the officers and staff who have to report to work. We know this is wrong. ICE and CBP must do the responsible thing: reduce the number of people in detention, starting with the most vulnerable, to keep them safe from COVID-19 before it is too late.

To ensure elections proceed and eligible Americans can vote, any federal legislative package addressing the impact of COVID-19 on our elections must include an immediate, substantial infusion of federal funding and federal requirements for no-excuse mail-in absentee voting and early in-person voting. While the coronavirus pandemic should not be a political issue, with presidential primaries and the general election coming up, it could soon directly impact our politics. It is simply not an option for Congress to fail to act on these basic issues to protect American elections while the pandemic is ongoing.    For many, the safest way to vote will be to vote by mail. However, there are approximately 17 states that currently do not allow no-excuse absentee voting by mail. In almost all cases, this absentee voting limitation is codified in state law and in some cases within the states’ constitutions, making it very difficult, if not impossible, to expand the ability to vote by mail in time to help reduce the impact of COVID-19. This is especially true in light of the inability of legislatures to convene at all, given the pandemic.    For example, in Texas it is only possible to vote by mail if you are over 65, disabled, will be out of the United States on Election Day and during the early vote period, or are confined to jail but otherwise still eligible to vote. The language about being disabled is further restrictive — the voter must have “a sickness or physical condition that prevents the voter from appearing at the polling place on election day.” Arguably, this language would permit only individuals actually sick with the coronavirus to vote by mail. All these restrictions are set in Texas law, and given that Texas’ legislature isn’t scheduled to meet in 2020, these laws would be very difficult to modify in time for upcoming elections. During the current pandemic, it is nearly impossible to imagine how the Texas legislature can efficiently and safely convene an emergency legislative session.     For other states, the limitations on absentee voting are set within the state constitutions, making the process for changes even more cumbersome. For example, in Massachusetts, current law only allows voters to cast absentee ballots by mail if they are out of town or unable to get to the polls because of a physical disability or religious restrictions. To change this may require an amendment to the state constitution, which must pass two successive legislatures and be approved by the voters through a ballot initiative — making it an impossible change before the 2020 general election.    Texas and Massachusetts are just two prime examples of why a federal mandate is necessary — to guarantee states can overcome hurdles posed by COVID-19, institute the necessary changes, and do so rapidly. Congress must act swiftly and aggressively so state and local election officials can begin preparing now to address these challenges. And without considerable and immediate funding from Congress — the ACLU has recommended $3 billion — a federal mandate alone will not be enough to achieve no-excuse absentee mail-in voting or an extended early vote period in time for this election. In order to safeguard our health and our democracy, there is no time to wait to save our elections. No one should have to choose between protecting their health and exercising their right to vote.