• Tag Archives ACLU

  • The ACLU Is Quietly Abandoning Civil Liberties

    Posted on by Azrael Comment

    Since 1920, the American Civil Liberties Union (ACLU) has generally upheld its mission to “defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.”

    Of all the protections guaranteed in the Constitution, the right to due process is among the most sacred. It is this right that protects each of us from being held legally accountable should we be arbitrarily accused of a crime.

    The ACLU has been a consistent advocate for our civil liberties for nearly 100 years, including the right to due process and, thus, the presumption of innocence. But recent statements made by the organization have many concerned that its consistent track record may soon be coming to an end.

    Just weeks ago, the Department of Education released its new set of proposed guidelines, instructing schools on how to comply with Title IX of the of the Education Amendments Act of 1972. Title IX has received a lot of attention in the #Metoo era, as it informs colleges and universities how to deal with accusations of sexual assault. It states:

    No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

    While the text itself is rather straightforward, campuses are generally given guidelines that help them enforce the language in Title IX. The last time the guidelines were changed was in 2011 when the Obama Administration lowered the evidentiary standard that was to be used in legal proceedings regarding sexual assault allegations.

    In an advisory notice now known as the “Dear Colleague” letter, the standard was lowered to a “preponderance of evidence,” which is the counterpart to “beyond a reasonable doubt.” Where the latter stipulates that there can be no other reasonable explanation than to assume the guilt of the accused, the former sets a much looser standard.

    To prove someone’s guilt through a preponderance of evidence, the accuser must convince a judge or jury that there is a greater than 50 percent chance that their claims are true. From a legal perspective, this sets a much lower bar for convicting people accused of crimes and misconduct.

    The Obama-era guidelines also instructed campuses to prohibit any cross-examinations of the accuser in order to avoid causing any further trauma. However, while this gave stronger protections to the accuser, it downplayed the importance of due process for the accused—who stand to lose a great deal even if the allegations turn out to be false.

    Under the Department of Education’s new proposed guidelines, the preponderance of evidence standard can still be used. But if the new proposed guidelines are adopted, campuses are also free to use the stricter standard of “clear and convincing evidence,” which is one step below beyond a reasonable doubt. Clear and convincing proof means that the evidence provided by the accuser has a higher probability of being true than it does of being false. The new rules would also mandate that the accuser be subject to cross-examination.

    As The New York Times reports:

    Under the new rules, schools would be required to hold live hearings and would no longer rely on a so-called single-investigator model. Accusers and students accused of sexual assault must be allowed to cross-examine each other through an adviser or lawyer. The rules require that the live hearings be conducted by a neutral decision maker and conducted with a presumption of innocence. Both parties would have equal access to all the evidence that school investigators use to determine facts of the case, and a chance to appeal decisions.

    Historically, the ACLU has promoted legal protections that require the state to prove beyond a reasonable doubt that an accused person is guilty of a crime. But when it comes to accusing someone of sexual assault on campus, the ACLU appears poised to abandon this principle.

    Shortly after the new guidelines were revealed, the ACLU tweeted:

    Today Secretary DeVos proposed a rule that would tip the scales against those who raise their voices. The proposed rule would make schools less safe for survivors of sexual assault and harassment when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported. It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence. We will continue to support survivors.

    The tweet was later backed up with a blog post from the organization in which it avoided using the term “due process” and instead claimed to be defending “fair process”:

    The ACLU is equally committed to ensuring students can learn in environments free from sexual harassment and violence and to guaranteeing fair process for both respondents and complainants.

    Investigative journalist Glenn Greenwald, a staunch civil liberties advocate, lambasted the ACLU for its tweet and suggested it might be time to look to other organizations to aid individuals in upholding cherished civil liberties.

    He tweeted:

    What has happened to ACLU is one of the saddest developments of the Trump era. But there are already groups – such as @TheFIREorg- emerging to replace it as an actual civil liberties group which defends rights regardless of partisan outcomes.

    Journalist, lawyer, and former president of FIRE, David French, commentedon the new guidelines, saying:

    “Not only will these rules restore basic due process and fairness to college tribunals, but they also—given how basic the changes are—highlight just how ridiculous university kangaroo courts have become.”

    French added:

    “The old-school ACLU knew there was no contradiction between defending due process and ‘supporting survivors.’ Indeed, it was through healthy processes that we not only determined whether a person had been victimized, but also prevented the accused from becoming a ‘survivor’ of a profound injustice.”

    Another problem, as Naomi Schaefer Riley writes in National Review, is that campus “kangaroo courts” were never supposed to deal with matters as serious as sexual assault in the first place. They were established in the 1960s and 70s to adjudicate more trivial matters such as student plagiarism and honor code violations. As such, these disciplinary panels are ill-equipped to deal with something as severe as sexual assault allegations.

    Unfortunately, this is not the first time the ACLU has backed away from upholding constitutional principles.

    Failing to give the ACLU credit for its phenomenal work in protecting individual rights over the years would be unfair. Yet there’s no denying the organization is deviating from its core mission.

    While the ACLU has typically been unwavering in its support for the First Amendment rights to free speech, recent comments made by the ACLU have led many to wonder if this may soon change, as well.

    In regards to First Amendment protections, the organization states:

    …the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.

    However, they have also stated that they reserve the right to deny taking cases if “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

    This summer, a leaked internal memo revealed that the organization had adopted the belief that hate speech did not qualify as free speech. The memo read, “Speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.”

    The ACLU later discounted the language used in the memo in a blog post rededicating itself to the issue of free speech. However, given its unwillingness to defend the right to due process, there are reasons to be concerned with the direction in which the organization is heading.

    And this is to say nothing of a part of the Bill of Rights that the organization has ignored entirely: the Second Amendment. By choosing to interpret the Second Amendment as a “collective right,” the ACLU has fallen woefully short when it comes to protecting each individual’s right to bear arms.

    Allegations of sexual assault and misconduct should most certainly be taken seriously. But not at the expense of the accused or the civil liberties that protect all Americans.

    The American legal system was founded on the premise that all accused individuals are innocent until they are proven guilty in a court of law. It is this maxim that sets our legal system apart from so many others. By removing this safeguard, we do a grave disservice to the pursuit of justice, even when it applies to those accused of the most heinous of crimes.

    Source: The ACLU Is Quietly Abandoning Civil Liberties – Foundation for Economic Education


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  • EFF and ACLU Expose Government’s Secret Stingray Use in Wisconsin Case

    Posted on by Azrael Comment

    Thanks to EFF and the ACLU, the government has finally admitted it secretly used a Stingray to locate a defendant in a Wisconsin criminal case, United States v. Damian Patrick. Amazingly, the government didn’t disclose this fact to the defendant—or the court—until we raised it in an amicus brief we filed in the case. In the government’s brief, filed late last week, it not only fails to acknowledge the impact of hiding this fact from the defendant but also claims its warrantless real-time location tracking didn’t violate the Fourth Amendment.

    We first learned about this case when it was already on appeal to the Seventh Circuit Court of Appeals and filed an amicus brief arguing the Fourth Amendment protects all of us from warrantless, real-time location tracking. The government suggested to both Patrick and the trial court that it had relied on location information obtained directly from Sprint. However, we suspected they had instead used a Stingray.

    Stingrays Allow Indiscriminate Dragnet Searches of All Cell Phones in an Area

    Stingrays, otherwise known as cell-site simulators, act as a fake cell-phone tower. They can be small enough to fit in a car and allow the government to direct all cell phones in the area to connect to it instead of the real tower. In doing so, the government can get a very precise picture of exactly where those phones are located—much more precise than many other types of location tracking technologies.

    Stingrays are especially pernicious surveillance tools because they collect information on every single phone in a given area—not just the suspect’s phone—this means they allow the police to conduct indiscriminate, dragnet searches—in some cases on up to 10,000 phones at one time. They are also able to locate people inside traditionally-protected private spaces like homes, doctors’ offices, or places of worship and can be configured to capture the content of communications.

    The Milwaukee Police Department Tried to Hide its Use of a Stingray

    In this case, the police first told Patrick they’d relied on “information obtained from an anonymous source” to find him sitting in the passenger seat of a car parked in an alley in Milwaukee.  It wasn’t until six months after his arrest that they revealed they’d tracked him through his cell phone, and even then they implied they’d gotten location information directly from the cell phone service provider. The government never got a search warrant to use any kind of technology to find Patrick in real time.

    As we’ve seen in other cases involving Stingrays, the government did everything it could in this case to hide the fact that it used a Stingray—from the court that issued the pen register/trap and trace order, the court that heard Patrick’s motion to suppress the evidence, and even from Patrick, himself. In police reports, the officers said only that they “‘obtained information’ of Patrick’s location; . . . had ‘prior knowledge’ that Patrick was occupying the vehicle; . . . [and] ‘obtained information from an unknown source’ that Patrick was inside the vehicle at that location.” And even at an evidentiary hearing where officers admitted to cellphone tracking, they would only acknowledge, cryptically, that they’d received “electronic information” confirming Patrick was in the vehicle. When Patrick’s attorney asked what “electronic information” meant, the officer on the stand would say only that it involved “tracking [a] cell phone.” The judge cut off any further questioning at that point.

    Luckily, in our amicus brief we were able to point the court to Milwaukee Police Department logs showing the police had used a Stingray on the very same day Patrick was arrested, under strikingly similar circumstances.[1] We also directed the court to a non-disclosure agreement, which the Milwaukee police signed just months before Patrick was arrested. In this standard FBI-issued NDA, signed by many other state and local agencies across the country, the police department agreed not to tell anyone (even the judge) in any civil or criminal proceeding that it had used a Stingray. It also agreed to dismiss any case—at the FBI’s request—if the court tried to force it to reveal anything about the device.

    Once we presented these facts to the appellate court, the government finally admitted it used a Stingray but would not concede this should have any impact on the legal analysis in this case. In a footnote to the brief the government filed last week, it even appeared to blame Patrick for failing to raise this at the trial court.

    The Government Admits it Needs a Probable Cause Warrant to Conduct Real-Time Location Tracking

    Interestingly, even though the government doesn’t think it’s secret use of a Stingray impacts this case, it admits that using technology to track someone’s location in real time (whether through location information obtained from the phone company or by using a Stingray) is a “search” for Fourth Amendment purposes. It also admits it needs probable cause and a search warrant to legally execute such a search. This appears to be the first time the government has admitted these things in an appellate case.

    But the government also argues it didn’t violate the Fourth Amendment in this case because it actually got a warrant—or maybe, in the alternative, the equivalent of a warrant (the police had a warrant to arrest (not search) Patrick and a court order (not a search warrant) to track Patrick’s phone). In a confusing and somewhat circular argument, the government asserts that because it submitted a “sworn affidavit” in support of its request for the pen/trap order, the order must have actually been a search warrant—if it hadn’t been a warrant, then it “wouldn’t have needed a finding of probable cause, which it contained.”

    The Seventh Circuit Should Follow Maryland and Find Secret, Warrantless Stingray Use Unconstitutional

    It’s now up to the Seventh Circuit to try to make sense of this argument (or maybe just to send the case back to the trial court for a new trial). If the appellate court decides to take this issue on, we hope it follows a recent Maryland appellate decision, State of Maryland v. Andrews(another case where we were amicus), where the court held unanimously that the Baltimore Police Department’s very similar secretive behavior and failure to get a search warrant before using a Stingray violated the defendant’s constitutional rights. Andrews is the first appellate decision that we know of where a court has ever looked at police use of a Stingray. We hope it sets a very persuasive precedent to all courts that secret, warrantless Stingray use violates the Fourth Amendment.

    Source: EFF and ACLU Expose Government’s Secret Stingray Use in Wisconsin Case | Electronic Frontier Foundation


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  • Cities reluctant to reveal whether they’re using fake cell tower devices

    Posted on by Azrael Comment

    Earlier in March, the ACLU filed a motion for public access request, requesting documents and information related to stingray use by nearly 30 Florida police and sheriff’s departments.

    Among the responses published for the first time on Tuesday was the curious reply from the city of Sunrise, Florida, a town of about 88,000 people, just northwest of Miami.

    Through its lawyers, Sunrise officially denied the request, noting that the city would neither confirm nor deny “whether any records responsive to the Request exist and, if any responsive records do exist, cannot and will not public disclose those records.” (In a footnote, the lawyers also cited this Ars story from September 2013 detailing stingrays and other related surveillance devices.) The ACLU published its response to the city’s denial on Tuesday.

    As the ACLU points out in a Tuesday blog post, the city of Sunrise has already published an invoice from Harris on its own website dated March 13, 2013, showing that the city paid over $65,000 for a stingray. That document clearly states, in all-caps on each page, that “disclosure of this document and the information it contains are strictly prohibited by Federal Law.”

    via Cities reluctant to reveal whether they’re using fake cell tower devices.


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