Wednesday, September 30, 2009

Videos in the Maine Marriage Equality Debate

One of the saddest displays of anti-equality rhetoric was showcased last year in the build-up to the infamous “proposition 8” vote in California. “Prop 8” banned marriage for gay and lesbian couples, a right that was granted only months before in the golden state. Videos paid for by opponents of gay marriage played on peoples’ fears that somehow, marriage equality for all citizens would degrade the institution of the family, and that homosexuality would somehow invade schools.

The same rhetoric is now being tossed around in Maine (which similarly just allowed gay and lesbian couples to marry) in videos that are eerily similar to the Prop 8 versions.

The videos are posted here:

We believe that folks all across the United States should have the right to marry whom they choose. Marriage equality has existed in the commonwealth for five years – a fact that we’re incredibly proud of.

Our friends at the Maine ACLU affiliate are currently working to promote fairness and equality under the law – see their own recent video here:

Here’s a cogent explanation of the current situation, via MCLU’s site:

On May 6, 2009, Governor John Baldacci signed "An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom" into law.

The effort to pass marriage equality in the Legislature was the result of a strong campaign effort led by the MCLU, EqualityMaine, Gay & Lesbian Advocates & Defenders, and Maine Women's Lobby. We collaborated with over 30 other non-profit organizations and the Religious Coalition for the Freedom to Marry, comprised of over 150 religious leaders from fourteen different religious denominations.

Opponents of marriage equality for all Maine people are presently gathering signatures in a petition drive to overturn the new law. MCLU Executive Director Shenna Bellows is on the steering committee of the Maine Freedom to Marry campaign preparing to defend the new law, which would be voted on in November 2009 or June 2010, if the opponents get the required number of signatures.”

Tuesday, September 29, 2009

Three Felonies a Day

The latest issue of the Boston Phoenix contains an extensive interview with Henry Silverglate, attorney, author and member of the ACLU of Massachusetts board of directors. His latest book, Three Felonies a Day, takes a sobering look at the corruption of federal prosecutors in the last three decades – a worrying trend indeed.

From the Phoenix:

Silverglate's thesis is as provocative as it is simple: justice has become sufficiently perverted in this nation that federal prosecutors, if they put their minds to it, could find a way to indict almost any one of us for almost anything. It is a truly radical notion.

Silverglate presents a series of freestanding case studies that range from Wall Street to the Massachusetts State House, to Boston City Hall, to a suburban doctor's office, to a Midwest university, to the newsroom of the New York Times.”

The Phoenix piece is an excellent, easily digestible read, in which Silverglate implicates the federal government for sponsoring “its own brand of white-collar extortion”, discusses differences in liberalism over the years, the specific cases in the book (including Michael Milken’s 1989 indictment), and the war on drugs.

Here’s a brief excerpt from the interview:

“How much of this sort of aggressive prosecutorial behavior is found in the so-called War on Drugs? It certainly grows out of the environment fostered by the war on drugs. The war on drugs was really one of the great excuses for weakening the Fourth Amendment. That's the freedom to be free from unreasonable searches and seizures. As a result of the war on drugs, courts allowed the government to search people without warrants, when they're in their cars, when they're carrying suitcases, when they check in at airports and train depots, when they're walking on the street in a whole variety of situations. What that did is it began to give courts and the government this mindset that, when you consider the law-enforcement need to be sufficiently serious, it's okay to water down constitutional rights.

That mindset, I am convinced, was partly responsible for allowing prosecutors to believe that, if you're going after people whom you don't like, or who somehow seem to you not to be good people, you can begin to stretch things — first a little bit, then a lot.”

Monday, September 28, 2009

Terrorist-watch meets Big Brother

On Friday, the Boston Globe published this letter to the editor by Carol Rose, executive director of the ACLU of Massachusetts:

REPORTS THAT the US Department of Homeland Security, with Draper Laboratory and others, are working on systems that “monitor eye blinks, heart rate, and even fidgeting’’ as a way to detect would-be terrorists should raise serious concerns (“Spotting a terrorist,’’ Page A1, Sept. 18). We question whether systems such as these can ever be useful, and believe it is incumbent on those promoting them to address concerns about both their high costs and their frightening implications for civil liberties.

Systems such as these could provide a pretext for law enforcement officials to engage in ethnic or racial profiling by targeting people who they believe look like terrorists or, equally frightening, could further open the door for a total surveillance state in which Homeland Security collects and stores intimate biometric information on everyone. Unquestioned use of technology such as this could make us less safe and less free - and nothing could be more un-American than that.

Carol Rose, Executive director, ACLU of Massachusetts

Thursday, September 24, 2009

Testimony on ENDA

Yesterday, two openly gay members of congress (Reps. Barney Frank, D-Mass., and Tammy Baldwin, D-Wis) gave testimony in support of the Employee non-discrimination act (ENDA), a bill that would make it illegal to hire, fire, or adjust promotions based on a person’s sexuality or gender identity.

Many folks are surprised to learn that in many states – 29, in fact - it is perfectly legal to fire someone (or not hire them) based on their sexual orientation (transfolk have it even worse – only 12 states offer protection based on gender identity). ENDA seeks to ensure equality under the law for all people.

There are some exceptions – religious institutions, small companies with fewer than 15 employees and the military are exempt.

We’re big supporters of ENDA here at the ACLU, so the positive overall reception to yesterday’s testimony and the fact that President Obama supports it gives us cause to hope.

Employment discrimination against lesbian, gay, bisexual and transgender workers is pervasive and harmful. It violates core American values of fairness and equality by discriminating against qualified individuals based on characteristics unrelated to the job.”

Tuesday, September 22, 2009

Net Neutrality

We’re reporting on a bit of hopeful news today – the FCC (Federal Communications Commission) just yesterday proposed a formal set of rules to help ensure “net neutrality”. Basically, this means that the FCC is taking the idea that the Internet should be free very seriously.

The organization has also set up, a site that will track the progress of the FCC’s new initiatives. They’re boasting a tagline that we can get behind – “Together we can preserve a free and open Internet to promote greater innovation, job creation, and a more connected America.”

The new policy expands on the principles outlined in a 2004 message, with two new principles: non-discrimination and transparency.

The fifth principle is one of non-discrimination -- stating that broadband providers cannot discriminate against particular Internet content or applications.

This means that ISPs would not be allowed to block or degrade lawful traffic over their networks or favor some content or applications over others. An ISP could not, for example, give its subscribers faster access to its own streaming video site, but slow down similar content from another site that is owned by a competitor.”

As ardent supporters of net neutrality and a safe, free online experience for all citizens, we’re happy to see the FCC take a clear, unwavering stand on the issue.

Monday, September 21, 2009

Facebook’s built in “gaydar” and privacy rights

When it comes to social networking, privacy – and the ability to control the information you share – is key. However, student researchers at MIT have found that even without explicitly sharing information, your profile elements may be saying things about you that you never intended to reveal.

As reported in the Boston Globe, the students were able to find out which facebook profiles belonged to gay students – without even looking at their pages. Just by looking at a person’s “friend list” they were able run software that looked at the gender and sexual orientation of their friends, making striking inferences about the person in question.

From the article:

The two students had no way of checking all of their predictions, but based on their own knowledge outside the Facebook world, their computer program appeared quite accurate for men, they said. People may be effectively “outing” themselves just by the virtual company they keep.”

It’s interesting to note that this experiment took place within the context of a course in “ethics and the law in the electronic frontier”.

“When they first did it, it was absolutely striking - we said, ‘Oh my God - you can actually put some computation behind that,’ ” said Hal Abelson, a computer science professor at MIT who co-taught the course. “That pulls the rug out from a whole policy and technology perspective that the point is to give you control over your information - because you don’t have control over your information.”

The massive popularity of social networking sites (especially facebook) has sparked a great deal of interest over online privacy concerns – an issue we take very seriously here, with its implications for civil liberties. Without a reasonable level of control over your own information, no one can be assured of his or her right to privacy – a feature that is absolutely essential in a safe and free media space.

Facebook does allow users to “block” their friend lists from others – though it’s not a default setting. Users who are concerned about their personal privacy should review the site’s privacy policy and change their settings accordingly.

Friday, September 18, 2009

Playing Smokescreen

We’re still very much in the spirit of Constitution day – students’ rights advocate (and victor in a major Supreme Court ruling over said rights) Mary Beth Tinker gave a rousing talk last night, and visited our offices today for another chat on the rights of young people.

Since we’re all riled up about students’ rights and privacy rights (another of our most important issue topics), we thought it might be useful to pass along a very cool game called SmokeScreen, which is an entertaining way to find useful information about online rights and privacy breaches on the Internet.

It’s aimed at students – and it’s just the sort of engaging, interactive activity that connects with a younger audience.

““The game, created by Six to Start, uses familiar-looking social networks to tell a story. Players interact with characters in the game to solve a mystery, and while the problematic aspects of social networks are highlighted along the way, it's fun rather than didactic. So in one mission, you use 'Gaggle' search to find the 'Fakebook' and 'Tweetr' accounts of a girl your friend fancies, then dig around to see where she's going out that night, what she'll be wearing, and what her interests are, so that your friend can better chat her up. Each piece of information that she shared seemed totally innocuous until you put it all together and use it to stalk her: it's scary how easy it is, and how totally plausible.”

The “missions” even come with extra information that brings privacy issues home, with tips on how to protect yourself online – and who to contact if something goes wrong.

It’s not just for students, either – anyone who spends time on social networks (or does any sort of business online) could stand to really learn from this approach.

We applaud Six to Start’s efforts, for bringing new media storytelling to a very important civil liberties issue – and for doing so in an entertaining, engaging manner.

Thursday, September 17, 2009

Constitution day 2009

We’re about to run out the door to set up for our Big Constitution Day event this evening, which is taking place at 6 pm at the Boston Public Library. You can find all of the details on our site, but what you should really know is that our featured speaker is Mary Beth Tinker, of the landmark students’ rights case Tinker v. Des Moines.

The case in question was truly momentous – and its implications for student rights (specifically, for freedom of expression in public schools) were incredible.

Here are a few details about the case and the 1969 Supreme Court decision:

“Three public school pupils in Des Moines, Iowa, were suspended from school for wearing black armbands to protest the Government's policy in Vietnam. They sought nominal damages and an injunction against a regulation that the respondents had promulgated banning the wearing of armbands. The District Court dismissed the complaint on the ground that the regulation was within the Board's power, despite the absence of any finding of substantial interference with the conduct of school activities.

The Supreme Court ruled that in wearing armbands, the petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth.”

Constitution day marks a perfect occasion for students to learn how – and why – to stand up for their rights, just as Tinker did.

Wednesday, September 16, 2009

Treading Water with the Patriot Act

We’ve received some unfortunate news recently regarding the current administration and the much-maligned Patriot Act. According to Threat LevelThe Obama administration has told Congress it supports renewing three provisions of the Patriot Act due to expire at year’s end, measures making it easier for the government to spy within the United States.” Though the leadership is willing to consider “modifications”, the three provisions in question are among the most insidious:

“*A secret court, known as the FISA court, may grant “roving wiretaps” without the government identifying the target. Generally, the authorities must assert that the target is an agent of a foreign power and/or a suspected terrorist. The government said Tuesday that 22 such warrants — which allow the monitoring of any communication device — have been granted annually.

*The FISA court may grant warrants for “business records,” from banking to library to medical records. Generally, the government must assert that the records are relevant to foreign intelligence gathering and/or a terrorism investigation. The government said Tuesday that 220 of these warrants had been granted between 2004 and 2007. It said 2004 was the first year those powers were used.

*A so-called “lone wolf” provision, enacted in 2004, allows FISA court warrants for the electronic monitoring of an individual even without showing that the person is an agent of a foreign power or a suspected terrorist. The government said Tuesday it has never invoked that provision, but said it wants to keep the authority to do so."

The Patriot Act itself allows for grievous violations of Americans’ civil liberties and civil rights – from allowing citizens to be spied upon to limiting due process for accused persons. Wiretapping individuals without a clearly defined legal reason? Allowing for “secret courts”? These are the kinds of concepts closely associated with the breakdown of civil rights in the post 9/11 atmosphere – and we cannot afford to move backwards (or simply maintain the status quo). Safety and freedom are not mutually exclusive goals.

Monday, September 14, 2009

Fresh From Court

We've just now returned from the courtroom, where ACLU and Salsberg & Schneider cooperating attorneys argued on behalf of Richard Hatch, the famed "Survivor" winner who, for nearly a month now, has been held in solitary confinement in Barnstable County jail for "unauthorized contact with the public."

Hatch was picked up from his home, where he was serving time in home confinement for tax issues, and thrown into solitary last month.

His latest troubles started August 17, when he gave an interview to NBC, which the Bureau of Prisons had preauthorized. Hatch criticized his prosecution on the tax issues, and shared his opinion that he was prosecuted, in part, because of his sexual orientation (he is gay) and his TV notoriety.

That didn't go over well. The day after the interview, the prosecutor on his case called in to a radio talk show and said that Mr. Hatch was "delusional" and his theories "ludicrous." Mr. Hatch then made his own call to the show to defend himself against the prosecutor's comments. Police took him into custody shortly after that.

Today, Hatch appeared in court, looking hopeful as attorney Michael Schneider argued that his client deserves release or release back to home confinement, as he did nothing wrong by defending himself on-air, and acted within his rights. Hatch wasn't even in prison, where courts have upheld some restrictions on media access based on security needs. Yet even then, as Schneider said in court, "The First Amendment doesn't stop at the prison wall."

Attorneys for the Bureau of Prisons argued that their policy requiring preauthorization for any media contact extended to Mr. Hatch's confinement at home, and that the permission they granted him to speak to NBC did not extend to the radio call-in program that followed. They also claimed that Hatch's punishment was in line with prison policy, and that Hatch was not being singled out.

We argued that holding anyone in solitary confinement as punishment for participating in a call-in radio program is excessive (Hatch doesn't need to be held in solitary to prevent him from having access to the media), and we questioned whether other prisoners would, in fact, be treated as harshly as he has been.

Judge Nathaniel M. Gorton gave both sides the chance to offer further arguments in writing by the close of business Wednesday, after which he will either call a new hearing or make a decision on the case. Hatch will likely remain where he is until then.

The Bureau of Prisons claims that this case has nothing to do with First Amendment rights -- but we believe that it does. Hatch seems to be being punished simply for speaking up against what he believes is discrimination and unfair treatment.

The fact that he has been treated so harshly also raises alarms for us. As Mr. Schneider said after the hearing, this treatment was "clearly retaliation for exercising his First Amendment rights." Every citizen, imprisoned or not, deserves the rights and protections granted to them by the Constitution -- and where there are no logical, reasonable rules regarding media contact (such as in this case, where Mr. Hatch was far from the prison where intense media interest could cause problems), no punishment should have been administered.

Friday, September 11, 2009

Sevis II and the rights of foreign students.

Not long after writing on civil rights issues in the post 9/11 world, I came upon this highly disturbing piece hosted on NPR's news site. Basically, it chronicles the actions that The Department of homeland security took in the early post 9/11 days, monitoring and tracking down foreign students. Little regard was given for foreign students' most basic civil rights; as many were detained, questioned, and prohibited from certain university areas/activities.

Unfortunately, theyse measures don't represent an isolated or short-lived episode – the Student and Exchange Visitor Program of U.S. Immigration and Customs Enforcement is now developing a tracking system called "Student and Exchange Visitor Information System-The Next Generation, known by its acronym 'SEVIS II'"

"Sevis II" may sound like a goofy Star Trek name, but its scope and purpose are far more insidious. It's a " Web-based, paperless data system, which tracks individual foreign students and their activities. It creates a single record for every person, with an easy-to-track number."

That "easy-to-track number" will include the person's fingerprints.

This is scary in the "1984" sense – the government will be able to monitor foreign students' activity in such a pervasive, complete way that it really squashes all notions of student rights – not to mention basic privacy rights.

Perhaps scarier still is the following passage, taken from the article: "Other Muslim students say this whole "profiling business" is no worse here than in their own countries. "That could happen to me in Egypt," says Ahmed El Desouky, a 26-year-old doctoral student in mechanical engineering. "Maybe I could talk to someone on the phone, someone will misunderstand the conversation. So it could happen here or there.""

This young person is making a direct – and a fair – comparison. Is this really how we want to treat people in our country? By creating a surveillance state and cutting off basic civil liberties, we serve no one – and we do grievous harm to our own basic sense of freedom.

Civil Rights and Civil Liberties, post 9/11

It's September 11th – a day when journalists, public officials, military personnel and most citizens take the time to reflect on the tragedies that occurred eight years ago. President Obama released a statement marking the day "National Day of Service and Remembrance, 2009" and held a moment of silence for the lives lost in the event.

After 9/11, there was a grievous lapse of hard-won civil liberties, most obviously proposed in the Patriot Act, but more generally, rights and freedoms were stripped of citizens in the name of "national security". Words like "wiretapping" and "preventative detention" went from being spooky sci-fi concepts to household names to cruel realities for countless Americans. Individual freedoms were limited, privacy rights were trampled upon, and in most cases, fear and paranoia were the only things served.

Eight years ago, our country reeled in shock and pain over the terrorist attacks, and the events that followed were clearly a direct result of that misery. However – allowing our nation to succumb to fear is not –and never will be an option. As we've stated on our post 9/11 page:

"An immutable characteristic of our nation is freedom. If we allow the interests of "national security" to take away our freedoms, we surrender what it is to be an American."

Our rights and freedoms are far too precious – and far too essential - to give up on in the wake of tragedy.

Thursday, September 10, 2009

ACLU of Massachusetts in the news

It's always great to be able to see that our work - and our stories are getting out there. Since it's something of a slower news day here at ACLU of Massachusetts, we thought it would be appropriate to share a few links to recent media coverage.

Our recent attempts to free Survivor winner Richard Hatch seem to have turned some heads:

The AP got wind early yesterday, prompting this cross-posted story.

The Boston Herald had a slightly more off-the-cuff version.

Of course, for the straight facts on the case, now updated with the actual Memorandum of Law and Habeas Petition, see our full news release.

Wednesday, September 9, 2009

Survivor: Barnstable County Jail

Richard Hatch won the first season of Survivor, and he was subsequently jailed for not paying proper taxes on his winnings, landing him a home confinement sentence. This much has been well publicized, though the story has taken a dramatic turn recently, garnering the attention of the ACLU of Massachusetts.

During his sentence, Hatch gave TV interviews (including one famous Today Show appearance where he insinuated that his sexual orientation was the basis for his persecution). The day after Hatch appeared on a radio show defending himself, the Bureau of Prison's had him placed in solitary confinement at Barnstable County Jail. The reasoning? Officials stated that he had "unauthorized contact with the public".

This is a grievous violation of freedom of speech – and completely unfounded, as Hatch was under home confinement (limitations on media access do exist for prisoners in correctional facilities). That he was imprisoned for no reason other than the fact that he raised his voice against alleged discrimination is decidedly unlawful.

Today, The ACLU of Massachusetts filed a habeas corpus petition asking the federal court to release Hatch. Executive Director Carol Rose had this to say: "Our Constitution protects a marketplace of ideas, in which individuals can criticize public officials, and in which members of the public can form their own opinions about what is true and what is false… The arrest and jailing of Mr. Hatch following his recent interviews suggest that he is being punished for comments that he had every right to make."

Check out our news release for the full details, and be sure to stay tuned for more information as the case develops.

Tuesday, September 8, 2009

Reading into Google Books' new privacy policy

Coming off of the heels of Facebook's announcement of improved privacy standards, Internet giant Google has just issued a much-needed privacy policy for Google Books (the company's ambitious project that makes books accessible online). The new policy covers the current service and the future extension (due in October) – though it still has a long way to go before it truly addresses all privacy concerns, as mentioned in a recent post at the Electronic Frontier Foundation.

There's no real accountability for privacy violations – so if any "government or private litigants" want information regarding your reading habits (or any other private information associated with the service), don't count on Google to ask for a warrant first.

The EFF has other issues with the policy, stating that it:

· " Fails to require Google to delete logging information about users within 30 days, or any other reasonably short period of time.

· Fails to ensure that readers will always be able to use anonymity services like the Tor network, proxy servers and anonymous VPN providers to access Google Book Search.

· Does not offer registered users who purchase texts any equivalent of a "hiding books under their bed" to protect against parents, family members or other local users who might scrutinize their reading (we suggested several ways that Google might implement a feature like this, and hope that Google will eventually do so)

· Fails to provide a robust, easy-to-read notice of and link to Google Book Search privacy provisions on the Google Book Search pages themselves, rather than tucked away in a privacy policy.

· Fails to address or in any way limit the use of watermarks to track users of Google Book Search.

· Fails to promise to annually publish online, in a conspicuous and easily accessible area of its website, the type and number of requests it receives for information about Google Book Search users from government entities or third parties.

In our current circumstances, we have to be clear and careful when issues of personal privacy come up. The spirit of accessibility and freedom of knowledge that surrounds Google Books is admirable, but ultimately useless if users can't be properly protected.

Friday, September 4, 2009

Free Speech at Harvard Medical School

After a minor media storm regarding Harvard Medical School's oppressive policy for student-media relations, the university is backing down and revising the rules.

Prior to yesterday's events, Harvard Medical students were not allowed to speak to the press without first "coordinating" with the Dean of Students and the Office of Public Affairs; a rule that raised eyebrows when students found the unwelcome changes in the 2009-2010 student handbook. The policy went into effect last February, and states " All interactions between students and the media should be coordinated with
 the Office of the Dean of Students and the Office of Public Affairs. This
 applies to situations in which students are contacted by the media as well as instances in which students may be seeking publicity about a student-related project or program"

Students David Tian and Kirsten Austad raised their voices yesterday, contacting the Boston Globe with a statement of concern. From the Globe: “It is hard to imagine that this new policy is not somehow related to the past advocacy efforts of students...In general, the culture of medicine often labels dissent as ‘unprofessional,’ and this is clearly communicated to us during our medical education. Doctors must be free to openly criticize the status quo and advocate for the rights of their patients.’’

The school has backed down from the policy – a small but important victory for students' rights and freedom of speech. Even within a private institution such as Harvard, students – and all citizens in a free society - should be allowed to contribute to public discourse. It seems particularly relevant for medical students at a time when concerns regarding flu pandemic and potential changes in health care are of such great importance.

We applaud these individuals for standing up for their rights – and for the administration's decision to withdraw the policy.

Thursday, September 3, 2009

ACLU Minutes

Now that we're reaching out in the new media space, we'd like to announce another new step - podcasting.

We have an excellent collection of "First Amendment Minutes", a short form radio program by Bill Newman, director of the ACLU of Massachusetts' Western Mass Legal Office. Now, we're finally able to present them to you on our website, so you may listen to them whenever you'd like.

This week's selections include a statement on Senator Kennedy, thoughts on jury duty reform, and a report on one very unruly Texas judge. Check them out on our new ACLU Minutes page.

Tuesday, September 1, 2009

Escaping the surveillance society

The New York Times recently posted a fantastic editorial that really brings home the dark side of technology and the pervasive surveillance that our modern conveniences bring.

It's truly startling just how many devices may be recording our actions at any time – and the utter lack of regulation over what can be done with that information. At any given moment, your cellphone, a street camera, a debit card transaction, a gps system and even a beloved CharlieCard may be keeping tabs on you – and there's no way you can access that information (and worse – you have no control over who can see it).

" A little-appreciated downside of the technology revolution is that, mainly without thinking about it, we have given up “locational privacy.” Even in low-tech days, our movements were not entirely private. The desk attendant at my gym might have recalled seeing me, or my colleagues might have remembered when I arrived. Now the information is collected automatically and often stored indefinitely.

Privacy advocates are rightly concerned. Corporations and the government can keep track of what political meetings people attend, what bars and clubs they go to, whose homes they visit. It is the fact that people’s locations are being recorded “pervasively, silently, and cheaply that we’re worried about,” the Electronic Frontier Foundation said in a recent report."

No, we don't live in a totalitarian society wherein one Big-Brother like entity is watching over us, but we are rapidly approaching something akin to a surveillance society – which itself is terrifying in its implications for civil rights and civil liberties.

What we'd like to generate is real discussion about these implications – and action. As writer Adam Cohen succinctly wraps it up:

" There are many ways, as the Electronic Frontier Foundation notes, to use cryptography and anonymization to protect locational privacy. To tell you about nearby coffee shops, a cellphone application needs to know where you are. It does not need to know who you are.

When locational information is collected, people should be given advance notice and a chance to opt out. Data should be erased as soon as its main purpose is met. After you pay your E-ZPass bill, there is no reason for the government to keep records of your travel."