Right to Privacy Alerts

Recommends Caution to School Districts Across the State

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Today, the MCLU advised Maine's public school superintendents to supplement their annual privacy notifications to parents with an additional explanation of the risks associated with social security numbers.  The letter was sent in response to an Administrative Letter from the Maine Department of Education to school districts initiating a controversial Social Security number collection policy.  That letter contains its own recommended language, which the Maine Civil Liberties Union feels does not go far enough.

In 2009, the Maine Department of Education sought authority to request Social Security numbers from all students enrolled in Maine schools, in order to conduct a longitudinal data study.  The Legislature agreed, but only on the condition that the Department explain to parents that disclosure of the numbers is optional, and that the numbers would not be used for the study unless parents (or students over 18) provide written consent.  To this end, the Department's suggested language includes four short sentences as an explanation, following six paragraphs explaining the benefits of social security number collection.

"The statute says that the parental notification must include an 'explanation,'" said MCLU Field Director Brianna Twofoot, "but the Department's suggested language does not go far enough.  Without an explicit description of the potential for loss of privacy and identity theft, parents and students cannot make an informed decision about participation in this voluntary program."

At the beginning of each school year, schools are required to inform parents of students' privacy rights under the Family Education Rights and Privacy Act (FERPA).  In a letter to superintendents (see attached), the MCLU urged superintendents to include language in this yearly notice that thoroughly explains a students' right to privacy, the risks associated with sharing your social security number and the voluntary nature of the Department's program.

"Even the most secure databases are subject to breach, and theft of social security numbers can lead to identity theft," said MCLU Executive Director Shenna Bellows. "A proper explanation would inform parents of privacy risks associated with social security numbers and the benefits of keeping our most personal information private."

The debate over the Social Security law was heated, and it continues still.  Over the summer, RSU #44 passed a resolution urging the Maine legislature to repeal the law, citing the Veteran's Affairs Administration security breach of 26.5 million social security numbers when a disc containing sensitive information was stolen in 2006. The MCLU has urged other school committees to consider similar action.

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Portland – The Maine Civil Liberties Union sent letters to Maine's school board chairs today encouraging them to pass resolutions to promote student privacy.

A state law, which is set to go into effect later this year, allows the Department of Education to collect and store student social security numbers for tracking purposes.  Already, one Maine school board, RSU #44 serving the Bethel area, has passed a resolution in favor of the law's repeal. The Bethel resolution also instructs schools to ensure parents know the program is opt-in.  The MCLU hopes that resolutions by other school boards will place mounting pressure on the legislature to repeal or revise the law, which was passed in the spring of 2009.

"We encourage school boards to educate themselves, schools and parents about the risks of social security number collection," said MCLU Executive Director Shenna Bellows. "The Bethel area school board recognized, as we do, that students have privacy rights too."

In its letter, the MCLU cautioned school boards of the risks individuals face when their social security numbers are collected and stored.  Social security numbers can be used by identity thieves or others to unlock the most personal details of people's lives.  In the last several years, high-profile instances of data breach at the U.S. Veterans Affairs Administration and the Finance Authority of Maine among other entities have exposed the vulnerability of even the most secure data, whether to unauthorized or mistaken access. 

The MCLU also emphasized that participation in LD 1356's data collection is voluntary, a fact it hopes school boards will make clear to parents who might otherwise believe that their participation in the program is obligatory.  The resolution passed by RSU #44 advises parents that the program is strictly optional.

"The program is voluntary, and schools may not retaliate against parents who decline to disclose their child's social security numbers," writes MCLU Field Director Brianna Twofoot to school board chairs in the MCLU letter.  "Without explicit explanations of the program and associated risks, parents and schools alike are in the dark."

In 1974, Congress passed the Privacy Act, which found that the government's use and dissemination of private data places privacy at risk.   Improperly protected student data, which can include disciplinary records as well as academic transcripts, can affect one's access to housing, employment, and credit later in life.  The state law, PL Chapter 448, requires the Department of Education to explain the risks associated with the disclosure of social security numbers. It has not yet done so, however, leading to concern that parents and schools will be left in the dark when making decisions about the program.

A copy of the Bethel school board resolution is available at: http://www.mclu.org/sites/default/files/Board%20Resolution%20PL%20448.pdf

Fourth Circuit Court of Appeals Today Reaffirms Lower Court Ruling

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Richmond, VA –The Fourth Circuit Court of Appeals today ruled that privacy advocate B.J. Ostergren may post public records that contain Social Security Numbers on her website, despite a 2008 Virginia law prohibiting the dissemination of such information.

Today's ruling reaffirms a June 2009 decision by U.S. District Court Judge Robert E. Payne, who found that the law, commonly referred to as the "anti-B.J. law," violated Ostergren's First Amendment rights.  Payne ruled that Ostergren had the right to post the Social Security Numbers of Virginia legislators, Virginia Executive Officers and Clerks of Court whenever the numbers were obtained from a government website accessible to the public.

Other courts, including the U.S. Supreme Court, have held that the government cannot make information available to the public, but then restrict what the public can do with it.

The Fourth Circuit not only affirmed the lower court decision but also found that Judge Payne's injunction against enforcing the law against Ostergren did not go far enough because it "does not protect Ostergren in publishing Virginia land records containing private individuals' SSNs" or those of "non-Virginia public officials."  The case has therefore been remanded to the lower court for revision of the injunction.

For many years, Ostergren has run TheVirginiaWatchdog.com, which advocates against the government making personal information available on the Internet.  The Virginia Watchdog posts public records, including the Social Security Numbers of some public officials, obtained from government websites.  By posting these documents, Ostergren illustrates how easy it is to obtain private information from government websites and hopes to prod elected officials to take action to prevent such information from becoming available to identity thieves.

Under Virginia law, all land records are available on the Internet.  These records include deeds and mortgage information, as well as legal judgments, such as divorce decrees, that may contain Social Security Numbers and other personal information. 

"Ms. Ostergren's most powerful advocacy weapon has been to demonstrate to the public how bad a job the government is doing to protect our online privacy rights," said ACLU of Virginia Executive Director Kent Willis.  "The government responded but by trying to silence Ms. Ostergren.  That's hardly the answer any of us want to see, and besides, it violates the constitutional right of free speech." 

Attorneys representing Ostergren are ACLU of Virginia Legal Director Rebecca K. Glenberg and Richmond attorney Frank Feibelman. The Fourth Circuit's ruling can be found online at: http://pacer.ca4.uscourts.gov/opinion.pdf/091723.P.pdf

 FOR IMMEDIATE RELEASE CONTACT: (202) 675-2312 or media@dcaclu.org   WASHINGTON – Private contractors play an enormous role in our country’s national security apparatus, according to the Washington Post today. According to today’s story, the second in a series by the Post entitled Top Secret America, contractors have been used for a wide range of intelligence jobs, including surveillance and interrogation of detainees, where civil liberties are greatly implicated.   The following can be attributed to Laura W. Murphy, Director of the American Civil Liberties Union Washington Legislative Office:   “The massive use of private contractors in our intelligence community further exacerbates the lack of control, oversight and accountability that already plagues our intelligence apparatus. The excessive use of contractors puts more distance between the government and those carrying out intelligence work and infuses the profit motive into a calculation that should be focused on effectiveness and adhering to the rule of law.”

Records Show Campus Spying on Student Activists

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The ACLU of Washington today called upon the University of Washington administration to take action to ensure that campus police prevent further surveillance of the lawful political activities of its students, faculty and staff.  The ACLU said that incidents on campus point to the need for state legislation allowing political surveillance only when there is reasonable suspicion of criminal activity.

Public records obtained by the ACLU show that the University of Washington Police Department (UWPD) authorized an undercover officer to attend, participate in, and collect information about meetings of the University of Washington Student Worker Coalition (SWC).  These documents follow on the heels of a previously disclosed surveillance episode and show that it was neither an isolated incident, nor was it the first time police improperly monitored the student group.  

In addition, the documents show that UWPD violated internal policy regarding intelligence collection, which state that the "sole purpose" of information collection is "eliminating criminal activity," and that "[i]nformation collected is limited to suspected criminal conduct and activities that are crimes." By collecting non-criminal information about the SWC – including their political ideas, allies and statements – the UWPD went beyond the limitations set forth in their Operations Manual.

"We urge the University to issue a clear statement that government surveillance based on political ideology is not permissible," said Kathleen Taylor, executive director of the ACLU of Washington in a letter to Vice Provost Eric Godfrey. "Further, we call on the University of Washington to ensure its policy limiting intelligence collection is enforced and to provide training to all officers clearly stating that officers shall not collect information about political and religious views and activities without a reasonable suspicion of criminal activity."

According to documents obtained via an ACLU of Washington records request, a UWPD officer attempted to infiltrate a Student Worker Coalition meeting at Suzzallo Café on April 1, 2010.  Noting that this was "not an open meeting," the officer sat at a neighboring table and took notes.  In an April 2, 2010 e-mail to a UWPD Lieutenant, the officer discussed the content of the SWC meeting, participants' political beliefs, and their plans to work with various worker groups throughout the UW community.  The officer also described her intent to "locate the location of the next meeting to see if a plain clothes officer could fit in." Her superior and a deputy chief responded that the officer "did a great job" monitoring the SWC. 
 
This e-mail sheds new light on a previously disclosed incident involving the same officer.  On April 8, a woman named "Tani" who described herself as a UW alumna actively participated in an SWC meeting to plan for a May 3d campus demonstration. The following week, several SWC members encountered the officer in police uniform and confronted her, whereupon she admitted to being the person posing as "Tani" who attended the SWC meeting.

Salmun Kazerounian and Sarah White, recent University of Washington Law School graduates and members of the Student Worker Coalition, spoke at the press conference. "Spying on workers and student activists is an embarrassing waste of public resources that disrupts legitimate and important organizing activities," said Kazerounian. Members of the UW chapter of the National Lawyers Guild, Kazerounian and White helped form the SWC to address both worker and student concerns around budget cuts.

"The surveillance incidents on campus are further evidence of the need for state legislation to allow political surveillance only with reasonable suspicion of criminal conduct," Taylor added. Legislation to accomplish this was introduced in the 2010 legislature, and the ACLU again will press for its passage in 2011.

In the recent settlement of a case brought by the ACLU of Washington and attorney Lawrence Hildes, three law enforcement agencies agreed to pay $418,000 including attorney's fees for the wrongful arrest and covert surveillance of Evergreen State graduate Philip Chinn. Despite obeying traffic laws and passing all sobriety tests, Chinn was arrested for driving under the influence on the way from Olympia to an anti-war demonstration in Aberdeen. Documents obtained via public disclosure requests revealed that the arrest came as part of a multi-agency "action plan" to suppress political protest.

Claiming that not enough has been done to protect the privacy rights of patients, the Rhode Island ACLU today filed suit against the R.I. Department of Health (DOH), challenging the inadequacy of rules the agency has adopted to implement a centralized database of patient health care records in the state. The Health Information Exchange (HIE), established by legislation approved by the General Assembly in 2008, will allow medical personnel to routinely access a patient's entire medical file, including mental health records and other sensitive medical information.

Last year, when the DOH proposed regulations to implement the statute, the ACLU objected that the proposed regulations provided virtually no details as to how the system would actually work, and how it would protect the privacy, confidentiality and informed consent interests of patients. The Affiliate has been battling over these issues since the HIE proposal was first floated some years ago.

In written testimony about the DOH's proposed regulations, the ACLU noted that there are no fewer than seven provisions in the HIE statute that require implementing details about the system to be fleshed out by DOH through a public rule-making process. However, the ACLU argued that those issues were only minimally addressed, if at all, in the regulations. When the ACLU sought an explanation as to why they had not been addressed, the DOH responded that it felt that they could better be handled through internal "policies" that were not subject to the public notice and comment requirement that agency regulations must undergo.

The ACLU's lawsuit, filed in R.I. Superior Court by volunteer attorney Frederic Marzilli, argues that the Department's position violates the Administrative Procedures Act (APA), "since all department policies that have general application and which implement, interpret or prescribe law" are subject to the APA's public vetting process. The suit seeks a court order declaring unenforceable the DOH's adoption of non-promulgated policies, rather than regulations adopted through a public rule-making process, and requiring DOH to promulgate "regulations that completely fulfill its obligation" under the HIE statute.

Noting the significant privacy issues raised by the HIE, the ACLU called it crucial that regulations setting up the system be as detailed as possible, explaining, for example, the rights patients have to opt out of the system, to correct information contained in it, and to ensure appropriate confidentiality of the data. RI ACLU volunteer attorney Marzilli said today: "In light of the important privacy and confidentiality issues raised by an electronic health records system, the legislature clearly envisioned the adoption of detailed regulations through a transparent process of public input. This lawsuit simply seeks to carry out that intent."

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WASHINGTON -- The American Civil Liberties today submitted written testimony to the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties for a hearing on updating the Electronic Communications Privacy Act (ECPA) and the need for reform in the use of location tracking information. ECPA became law in 1986 and has not been properly updated to reflect the vast technological advances that have occurred since its passage, including the use of cell phone information by law enforcement to track Americans' movements. The ACLU is asking Congress to require government officials to obtain a warrant based on probable cause before allowing access to any of those electronic records, just as they have always had to do for similarly sensitive personal information.

"Tracking our citizens' locations and movements without warrants or probable cause constitutes a massive privacy violation," said Laura W. Murphy, Director of the ACLU Washington Legislative Office. "The overwhelming majority of Americans carry cell phones and inadvertently transmit their location information every minute of every day. Whether they visit a therapist, liquor store, church or gun range, these movements are often available to law enforcement in real time or even months later. Clearly, these kinds of sensitive records should be fiercely protected and law enforcement should be required to obtain a warrant before getting near them."

The ACLU noted in its testimony that law enforcement has been obtaining location information since at least the late 1990s, but more than a decade later there is still no uniform standard for when law enforcement can access this information. Because Congress has never addressed the appropriate standard for location information and because of particular practices by the Department of Justice (DOJ), confusion remains regarding what the appropriate standard should be. The position of the DOJ is that enormous amounts of location information should be accessible without it having to obtain a warrant and show probable cause.

"Our government continues to obtain its citizens very private and sensitive information with the lowest of legal standards and little to no oversight," said Christopher Calabrese, ACLU Legislative Counsel. "In addition to all their benefits, cell phones are also portable tracking devices. Americans shouldn't have to accept constant surveillance in order to enjoy the benefits of mobile services. It is time for Congress to act. It must amendment the Electronic Communications Privacy Act to bring this intrusive surveillance back in line with the Fourth Amendment."

Last week, the ACLU and the Electronic Frontier Foundation filed a friend-of-the-court brief urging a Connecticut court to suppress cell site information that the government had obtained against the defendant, Luis Soto, without a warrant. In that case the government sought tracking information not only on Soto but also on approximately 180 other people.

The brief can be found here:
www.aclu.org/technology-and-liberty/us-v-soto-amici-brief-support-motion-suppress

The ACLU’s statement for the record submitted to the subcommittee is here:
www.aclu.org/technology-and-liberty/comments-submitted-ecpa-reform-hearing

More information on the ACLU’s work with online privacy can be found at: www.dotrights.org and www.aclu.org/ecpa.

Demand For Records By North Carolina Department Of Revenue Unconstitutional

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NEW YORK – Requests by the North Carolina Department of Revenue (NCDOR) for detailed information about Amazon.com customers are unconstitutional because they violate Internet users' rights to free speech, anonymity and privacy, according to a complaint filed today by the American Civil Liberties Union, ACLU of North Carolina Legal Foundation and ACLU of Washington. The ACLU, on behalf of several Amazon.com customers, intervened in an existing lawsuit brought by Amazon to stop NCDOR from collecting personally identifiable information that could be linked to their specific purchases on Amazon.

"The Constitution does not permit government agencies to conduct such sweeping collections of our personal and private information," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "Disclosing the purchase records of thousands of Amazon customers would violate their constitutional rights to read and purchase the lawful materials of their choice, free from government intrusion."

The ACLU filed the case on behalf of six anonymous North Carolina residents (Does 1-6) and Cecil Bothwell, an elected public official, who do not think the government should be able to find out the personal, private information their purchasing records reveal. The plaintiffs include:

• Jane Doe 1, who purchased books on self-help and how to get a divorce and a restraining order after her former spouse developed substance abuse problems and threatened to kill her;
• Jane Doe 2, the general counsel of a global corporation, who has purchased books and movies with overt political leanings as well as books that may reveal her religious beliefs;
• Jane Doe 3, who has purchased books on mental health in order to better understand the conditions afflicting her former spouse, including "Stop Walking On Eggshells: Taking Your Life Back When Someone Your Care About Has Borderline Personality Disorder," as well as books about cancer, including "Cancer: 50 Essential Things To Do: Revised and Updated," by Greg Anderson. She has also purchased books on atheism. She is not public about her personal beliefs and doesn't want others to find out;
• Jane Doe 4, who has received several politically-charged items through Amazon from her parents, including "Obama Zombies: How The Liberal Machine Brainwashed My Generation," by Jason Mattera. Jane Doe 4 is a law school student who would like to one day work in the public sector, and she is concerned that her career prospects may be impaired if her personal and political beliefs are disclosed;
• Jane Doe 5, the parent of Jane Doe 4, who is a Florida resident, but whose information has been caught up in NCDOR's request. She does not want the government to know which books she has decided to purchase for her child;
• Jane Doe 6, whose purchases include books with sensitive and potentially controversial subject matters; and
• Cecil Bothwell, an elected city official, author and proprietor of a publishing house who has both purchased and sold potentially controversial books on Amazon. He is an atheist, which his political opponents seized on following his election because of a provision in the North Carolina Constitution that purports to prohibit anyone who "shall deny the being of Almighty God" from holding public office. He is joining the lawsuit on behalf of himself and his readers and customers, whose information has also been sought by NCDOR.

According to the lawsuit filed by Amazon in April in the U.S. District Court for the Western District of Washington, NCDOR issued a request to Amazon for the purchase records since August 2003 of customers with a North Carolina shipping address as part of a tax audit of Amazon. Amazon has already provided NCDOR with product codes that reveal the exact items purchased – including books on the subjects of mental health, alcoholism and LGBT issues. Amazon has withheld individually identifiable user information that could be linked back to the individual purchases, including names and addresses, but NCDOR has refused to agree that it is not entitled to such information.

"The ACLU is not taking issue with the Department's authority to collect taxes on these purchases, but there is no legitimate reason why government officials need to know which North Carolina residents are reading which books or purchasing which specific brands of products," said Katy Parker, Legal Director for the ACLU of North Carolina Legal Foundation. "We had hoped the Department would narrow the scope of its requests in order to protect privacy rights, and we are surprised and disappointed that it has become necessary for us to take legal action in order to safeguard consumer's rights."

The ACLU in May sent a letter to North Carolina Secretary of Revenue Kenneth Lay, informing him that the ACLU would take legal action if NCDOR persisted in its demand for constitutionally-protected information. 

In addition to Fine and Parker, attorneys on the case are Mariko Hirose of the ACLU, Sarah Dunne of the ACLU of Washington and cooperating attorney Venkat Balasubramani of the Focal PLLC law firm.

The ACLU's complaint can be found online at: www.aclu.org/free-speech-technology-and-liberty/amazoncom-llc-v-kenneth-r-lay-intervenors-complaint

Research validates concerns about error and fraud, cost and inefficiency, racial and ethnic bias in the use of forensic DNA

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NEW YORK -- The New York Civil Liberties Union today released Unanswered Questions about Proposals to Expand the State's DNA Databank, a document that raises provocative questions about the governor's proposal to collect and store DNA from all New Yorkers – including youth – convicted of any penal offense, including low-level misdemeanors. 

A Q&A, the document cites numerous criminal justice experts whose research identifies problems with the use of DNA databanks – including an unexpectedly high incidence of error and fraud in the collection, handling and analysis of forensic DNA.  

"There are so many questions that must be answered, but our legislators are notably incurious," said NYCLU Legislative Director Robert Perry. "The complexity and importance of the issues raised by the proposal to expand the state's DNA databank – issues of law, science and public policy – are matched only by the indifference of law makers. It's perplexing."

DNA is widely considered the forensics gold standard, but the findings compiled by the NYCLU suggest lawmakers and law enforcement professionals have failed to recognize how the "human factor" can lead to flawed prosecutions – and wrongful convictions – due to mislabeling of samples, cross contamination of samples, misinterpretation of DNA analysis and misrepresentation of the test results.

The Q&A also identifies systemic inadequacies in the procedures by which law enforcement officials collect and analyze data on the number of "cold hits" – crime-scene DNA evidence that matches a sample in the databank – that lead to criminal investigations and convictions. The "cold hit" scenario is different from testing a known suspect against crime-scene evidence – which does not require, or rely upon, a databank.

The experts cited by the NYCLU assert that criminal justice professionals lack sufficient data to assess the actual value of DNA databanks in solving crimes. 

In its Q&A, the NYCLU also raised concerns about a new "familial searching policy" recently approved by the state's Commission on Forensic Sciences. This policy authorizes law enforcement officials to investigate family members of an individual whose DNA is a "partial match" with crime scene evidence – on the grounds that a blood relative of that individual may be implicated in the crime. An expanded databank could place entire communities under permanent suspicion – solely because the DNA of a family member is in the state's databank. 

The NYCLU offers a series of recommendations for lawmakers to ensure the integrity of the DNA databank. Among them, New York State must 1) establish a task force of independent scientists and criminal justice experts that is charged with identifying best practices in light of authoritative scientific and legal research; and 2) reconstitute the Commission on Forensic Sciences as a more independent, better resourced and more robust regulatory oversight body.

To read the NYCLU's full Q&A, visit: www.nyclu.org/files/releases/DNA%20UnansweredQuestions_FINAL_6.15.pdf

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HARRISBURG - The Pennsylvania Senate today continued the drumbeat of the states' opposition to the federal Real ID program by unanimously passing legislation to block its implementation in the commonwealth.  The American Civil Liberties Union of Pennsylvania supports the bill, Senate Bill 621, and praised the Senate for taking decisive action.

"Real ID is a de facto national ID card and is a radical new step in invading the privacy of Pennsylvanians and all Americans," said Andy Hoover, legislative director of the ACLU of Pennsylvania.  "The Senate has shown leadership in stopping Real ID from becoming a reality here."

Congress passed the Real ID Act in 2005 as part of an appropriations bill to fund American troops overseas and victims of the 2004 tsunami in South Asia.  Real ID forces new mandates on the states regarding the distribution of drivers' licenses.

Hoover cited multiple privacy problems for license holders as a result of Real ID, including a mandate on PennDOT to store copies of individuals' personal documents, such as birth certificates and Social Security cards, and the linking of the databases of the departments of motor vehicles in all 56 licensing jurisdictions, creating a massive new national database.

"Real ID is a honeypot for identity thieves," Hoover said.

Senator Mike Folmer is the primary sponsor of SB 621 and has played a key role in moving the bill forward in the Senate.  If the bill is passed by the House of Representatives and signed by Governor Rendell, Pennsylvania would become the 16th state to block the implementation of Real ID via statute.  The 15 states that have opted out to date comprise a diverse group that includes Alaska, Maine, Minnesota, Georgia, and Oklahoma.

Hoover also noted Real ID's digital photo requirement, which poses First Amendment freedom of religion issues for persons of varying faiths, including the Amish, who acquire non-drivers', non-photo ID cards for conducting federal business; Muslim women; and Sikh men.

"When the Department of Homeland Security issued its final regulations on Real ID, it simply ignored this issue," Hoover said.

PennDOT has estimated that Real ID will cost the commonwealth approximately $100-$120 million to implement and $40-$50 million annually to maintain.  Congress has appropriated no significant funds for the states to start Real ID.

SB 621 now moves to the House for consideration.  In 2008, the House unanimously passed similar legislation.

The federal government's deadline for compliance with Real ID is May, 2011.

MCLU Concerned About Social Security Number Collection

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Portland – Today, the MCLU responded to end-of-school-year instructions from the Maine Department of Education to school districts initiating a controversial Social Security number collection policy.  In 2009, the Maine Department of Education sought authority to request Social Security numbers from all students enrolled in Maine schools, in order to conduct a longitudinal data study.  The Legislature agreed, but only on the condition that the Department explain to parents that disclosure of the numbers is optional, and that the numbers would not be used for the study unless parents (or students over 18) provide written consent.  Today, the MCLU accused the Department of not living up to its end of the bargain.

A recent letter from the Education Commissioner to all Maine Superintendents includes six paragraphs on the benefits of collecting and analyzing Social Security numbers, followed by a one-sentence statement that disclosure of the numbers by parents is not required.  The authorizing statute, 20 M.R.S.A. §6005(3) states, however, that the parental notification must include an "explanation," and as Maine students are hopefully learning in school, a plain statement is not an explanation.  

"A proper explanation would be aimed at ensuring that parents have appropriate information to make a decision," said MCLU Legal Director Zachary Heiden.  "Overuse of Social Security numbers can lead to identity theft and other privacy violations.  Furthermore, children who are homeless or whose parents are undocumented immigrants have an absolute right to a public education, and they need to know that the lack of a Social Security number is not a barrier to attending school."

In its letter to the Department, the MCLU quotes a publication from the Social Security Administration, "Identity Theft And Your Social Security Number," as an example of what should be included in a proper explanation.  The publication notes, "You should be careful about sharing your number, even when asked for it."  The MCLU expressed concern that, without an full explanation, schools and parents would be confused about whether disclosure was a requirement.

"Privacy is a fundamental constitutional right," said MCLU Executive Director Shenna Bellows. " Parents should think long and hard before handing over their children's social security numbers for this new tracking program." 

The debate over the Social Security law was heated.  Proponent and former Education Commissioner Susan Gendron testified that tracking students using social security numbers is "essential for evaluating the effectiveness of education programs and curriculum in impacting postsecondary and labor market outcomes."

Opponents, including teachers, superintendents, parents and advocacy groups, highlighted the privacy risks with tracking student and worker data using social security numbers, noting that government agencies are not immune from security breaches and that disclosure of Social Security numbers would leave students vulnerable to identity theft.  In 2006, the Veteran's Affairs Administration was blamed for the theft of 26.5 million social security numbers when a disc containing sensitive information was stolen. 

Social Security number collection is expected to take place over the summer, as parents fill out forms before the start of the new school year.  The MCLU letter urges the Department will take steps quickly to explain the new law to schools and parents.  In the meantime, the MCLU is contacting schools and alerting parents through its networks of their privacy rights under the law.  The MCLU letter to the Department of Education is available upon request.

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HARRISBURG - The Pennsylvania House of Representatives today passed two bills to force state contractors and all construction businesses to use the federal E-Verify program, an online database program run by the federal government.  After the vote, The American Civil Liberties Union of Pennsylvania responded that E-Verify is an invasion of privacy and that the bills may be unconstitutional.

"Through E-Verify, the federal government has put the 445 million records in the Social Security database on the internet, available to any skillful hacker," said Andy Hoover, legislative director of the ACLU of Pennsylvania.  "This should send a chill down the spine of anyone who has a Social Security number.

"By passing these bills, the state House has given its stamp of approval to this invasion of privacy."

House Bill 1502 would require that all state contractors use E-Verify while House Bill 1503 would require that all construction employers use the program.  E-Verify allows employers to check data from an employee or applicant with data in the Social Security Administration's database and a Department of Homeland Security database.

Hoover noted that the bills' ability to survive a court challenge is questionable.

"Laws with E-Verify provisions in Hazleton and in Oklahoma have been struck down by the courts," Hoover said.  "The courts have ruled that immigration regulation is the responsibility of the federal government, not the states and cities."

A great deal of the debate surrounding E-Verify has been focused on the errors in the databases.  A recent study commissioned by the federal government and conducted by the research firm Westat found that 54 percent of unauthorized workers put through E-Verify actually came back as authorized to work.

Employers have been reporting and testifying to Congress that errors affecting authorized workers occur about 10-15 percent of the time.  Research also indicates that the errors in the databases disproportionately affect naturalized citizens and legal residents.

"E-Verify is not ready for prime time," Hoover said.  "It's unfortunate that the House has passed two bills that take Pennsylvania knee-deep into an unworkable program."

ACLU, EFF And Public Citizen File Briefs Supporting Time Warner Effort To Protect User Anonymity

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NEW YORK – Subpoenas seeking the names and contact information of thousands of individual Internet users from their respective Internet service providers (ISPs) violate the individual users' rights to due process and anonymity, according to friend-of-the-court briefs filed late last night by the American Civil Liberties Union, the ACLU of the Nation's Capital, the Electronic Frontier Foundation (EFF) and Public Citizen Litigation Group. The briefs support Time Warner Cable's motion to quash or modify subpoenas it received for information about thousands of users who allegedly downloaded certain movies from the Internet using the BitTorrent file sharing application. 

"Members of the movie industry have the right to challenge alleged copyright infringement, but they must do so in a way that upholds the law and individuals' due process rights," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "Lumping thousands of unconnected individuals into a few cases in a court far from where they live, without providing them adequate notice and a real opportunity to challenge the subpoenas, is not that way."

The subpoenas were issued as part of separate copyright infringement lawsuits filed by one counsel in the U.S. District Court for the District of Columbia. Very few – if any – of the defendants, and none of the plaintiffs, live in the District. According to the amicus briefs from the ACLU, EFF and Public Citizen, the individual defendants have no connection to each other besides simply being accused of downloading the same movies using the same software.

The amicus briefs argue that the subpoenas should be quashed because the lawsuits improperly join thousands of unrelated defendants into a single action and were filed in a jurisdiction where few, if any, of the defendants reside. The briefs also argue that the plaintiffs failed to show sufficiently that they had reason to believe the individual defendants did anything wrong before attempting to obtain their identifying information and failed to give the individual defendants notice and an opportunity to challenge the subpoenas.

"Individuals have a presumptive right to speak and view material on the Internet anonymously," said Arthur Spitzer, Legal Director of the ACLU of the Nation's Capital. "If a party to a lawsuit wants to find out who those anonymous individuals are, it must make an adequate factual showing in a proper court, whether the anonymous individual is accused of copyright infringement, defamation or any other improper conduct. That has not been done here."  

The briefs are available online at: www.aclu.org/free-speech-technology-and-liberty/amicus-briefs-support-time-warner-motion-quash-subpoenas

ACLU and AAUP Asked School to Protect Academic Freedom by Fighting Release

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

Charlottesville, VA — The University of Virginia today filed papers with the Albemarle County Circuit Court opposing attempts by Virginia Attorney General Ken Cuccinelli to obtain documents related to the research of former UVA professor Michael Mann, a global warming expert once employed by the school.

Cuccinelli is seeking a wide range of detailed records -- including emails that Mann sent to and received from colleagues while at UVA -- through a Criminal Investigative Demand under the Virginia Fraud Against Taxpayers Act.  Mann, who is now employed by Penn State University, received funding from the state of Virginia for some of his global warming research.  Under Virginia law, the University must accede to Cuccinelli's demand or ask a circuit court judge to determine if it is in accordance with the law.

After hearing that Cuccinelli had filed the demand and reading reports indicating that UVA was inclined to comply, the American Association of University Professors and the American Civil Liberties Union of Virginia urged college officials to exercise their right to oppose the demand by filing a petition in circuit court (Link to ACLU/AAUP letter).

In their letter, the AAUP and the ACLU suggested that no opposition from UVA would chill academic freedom in Virginia by signaling to college professors that their private communications could be made available to the Attorney General whenever they were sought.

"A principal mission of the university is to protect academic freedom, and the way to do that in this instance is to make sure the Attorney General's demand for information is justified under the law," said ACLU of Virginia Executive Director Kent Willis.  "A court can now make that determination."

"We were concerned that UVA might just roll over rather than take on the Attorney General," added Willis.  "We are pleased they decided to stand up for their professors, academic freedom and scientific inquiry."

The petition filed today by the University of Virginia can be found online at: acluva.org/wp-content/uploads/2010/05/20100527UVACuccinelliFiling.pdf

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

NEW YORK – The New York Civil Liberties Union today filed a lawsuit challenging the state Department of Correctional Services' refusal to disclose public records about its use of ion scanning technology to screen prison visitors for exposure to drugs.

After receiving numerous complaints about the accuracy of ion scanning devices and following studies questioning the high rate of false positives associated with the test, the NYCLU in September 2009 requested access to public records concerning the technology through the state Freedom of Information Law.  In response, the Department of Correctional Services (DOCS) provided a single 12-page document that ignored the bulk of the NYCLU's request.

"DOCS cannot hide from legitimate concerns about the accuracy of ion scanners at state prisons," NYCLU Executive Director Donna Lieberman said. "Thousands of New Yorkers travel long distances, often at great personal expense, to visit loved ones in state prisons. They must not be wrongfully denied the right to visit their mothers, fathers, husbands, wives or children because of faulty scanners. DOCS must make its ion scanning program available for public scrutiny."

Ion scanners are electronic devices that aim to detect traces of drugs on clothing, body parts and other surfaces. If visitors test positive, or if they refuse the test, they are not allowed to enter prison. Photographs of visitors and their IDs are attached to positive scan results and circulated to prison officials to identify those persons during future visits.

In the decade since DOCS began using the scanners, the NYCLU has received many complaints concerning their accuracy, particularly their propensity to trigger false positive results after a visitor has handled non-contraband items, such as money, clothing or prescribed medication. 

Concerns about the scanners' accuracy were confirmed in April 2008 when all Federal Bureau of Prisons facilities suspended the use of ion scanning. The bureau reinstated the ion scanning program in October 2009 under limited conditions and after implementing policy and equipment changes deemed necessary to improve the program's effectiveness.

After failing to respond fully to the NYCLU's records request, DOCS ignored an administrative appeal the filed in January and a follow up letter sent in March. 

"It is unfortunate that DOCS has flouted its obligations under the Freedom of Information law and forced litigation on this matter," said Corey Stoughton, NYCLU senior staff attorney and upstate litigation coordinator. "A thorough, independent analysis of the department's ion scanning program requires access to these records, and we are confident the courts will compel DOCS to provide them."

The NYCLU filed the lawsuit, an Article 78 petition, in State Supreme Court of Albany County.

Working with Stoughton on the case are Katharine Bodde, Christopher Dunn and Arthur Eisenberg, all of the NYCLU.

To read the full complaint and the memo of law, visit: www.nyclu.org/news/nyclu-sues-state-department-of-corrections-information-about-controversial-method-screening-pri

With shocking regularity, police throughout the United States are being allowed to use felony wiretapping charges to arrest people who happen to videotape or record them in public.

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Group Will Join Lawsuit If North Carolina Department Of Revenue Keeps Up Demand For Private Information

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

RALEIGH, NC – The American Civil Liberties Union and the ACLU of North Carolina today sent a letter to North Carolina Secretary of Revenue Kenneth Lay reiterating concern over a recent request by the state Department of Revenue (NCDOR) for the private records of Amazon.com customers. The letter informs Lay that the ACLU will take legal action on behalf of North Carolina residents who are Amazon.com customers if NCDOR persists in its demand for their constitutionally protected private information. Specifically, the letter says the ACLU and its clients will intervene in an existing lawsuit brought by Amazon.com to stop NCDOR from collecting individually identifiable information that could be linked to specific purchases made on Amazon.com.

According to the lawsuit filed by Amazon in the Western District of Washington in April, NCDOR issued a request to Amazon for the purchase records since August 2003 of customers with a North Carolina shipping address in order to impose taxes on the purchases. Amazon has apparently already provided the NCDOR with product codes that reveal the exact items purchased – including books on the subjects of mental health, alcoholism and LGBT issues. Amazon has withheld individually identifiable user information, including names and addresses that could be linked back to the individual purchases, but asserts that the NCDOR continues to insist that such information be disclosed. In its letter today, the ACLU asserted that such disclosure would violate the constitutional rights of thousands of North Carolina consumers to read and purchase the lawful materials of their choice, free from government intrusion.

The following can be attributed to Aden Fine, staff attorney with the ACLU's Speech, Privacy and Technology Project:

"The Constitution guarantees Americans the right to read and buy the lawful materials of their choice without the government keeping tabs on the details of their purchases. Amazon was right to stand up for the rights of its customers and to refuse to turn over their personal information to the North Carolina Department of Revenue."

The following can be attributed to Jennifer Rudinger, Executive Director of the ACLU of North Carolina: 

"The ACLU is not taking issue with the Department's authority to collect taxes on the value of these purchases, but there is no legitimate reason why government officials need to know which North Carolina residents are reading what books or purchasing which specific brands of products. We hope to be able to work out a satisfactory resolution to this matter so that consumers in North Carolina can rest assured that their privacy is protected."

The full text of the letter is below and online at: www.aclu.org/free-speech-technology-and-liberty/aclu-letter-north-carolina-department-revenue-secretary-kenneth-l

May 20, 2010

Via Facsimile

Secretary Kenneth Lay
North Carolina Department of Revenue
501 N. Wilmington St.
Raleigh, NC  27604

re:  Amazon.com LLC v. Lay, 2:10-cv-00664 (W.D. Wash.)

Dear Secretary Lay:

We are writing to follow up on our fax dated April 21, 2010, regarding the Department of Revenue's request for private customer records concerning the items that North Carolina residents have received through Amazon.com.  We write to inform you that we have clients — North Carolina residents who are Amazon customers and whose private records are at stake — who are gravely concerned about government access to their purchasing records.  The information requested will reveal which North Carolina residents, including our clients, have received which specific books, movies, and other expressive and private items from Amazon.  Our clients are prepared to intervene in the lawsuit in the Western District of Washington to protect their constitutional rights if necessary, but we write this letter in the hope that the Department might agree to a solution that would protect our clients' fundamental rights and avoid unnecessary litigation.

According to Amazon's lawsuit, the Department has issued information requests to Amazon that seek a broad set of information regarding all sales to customers with a North Carolina shipping address since August 2003.  The Department has already received detailed data from Amazon about these purchases, including the specific product code for each purchase, which reveals the full description of each purchased item.  These product descriptions reveal highly expressive and private information about consumer choices: for example, whether a person has received a book on alcoholism or home workshop weaponry, a movie like "Brokeback Mountain," or "sexual wellness" items such as sex toys. 

Amazon appears to have turned over this detailed information already.  We understand, based on press reports, that the Department is now taking the position that it does not want some of this information, such as the titles of books purchased, and that its information request did not seek to obtain such information.  Amazon appears to dispute this account.  We would appreciate receiving a copy of the information requests, redacted if necessary to protect taxpayer information, so that we could make an independent determination. 

In any event, the fact remains that whatever the requests called for, the Department is now in possession of this highly sensitive and personal information, and if the Department persists in its demand that Amazon now additionally provide detailed user information, including names and addresses, the constitutional rights of our clients and tens of thousands of North Carolina consumers will be violated. 

Moreover, merely limiting the request to the type of product purchased and not including the specific brand or title of the product would still reveal information about North Carolina residents –e.g., that they have purchased "condoms" or "yeast infection kits" – that the State is not permitted to collect.  To the extent the Department believes it needs to learn what type of products were purchased, please explain why that specific information is necessary so that we can better understand the Department's position.
  
We want to reiterate that we are not challenging the Department's authority to impose a tax for these purchases or to conduct an audit.  We are concerned, however, about the apparent breadth of the information requests, which sweep up constitutionally protected information that the Department does not need to determine tax liability.  It is clearly established law that the Constitution forbids the government from collecting such information.  See, e.g., In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. 570, 572-73 (W.D. Wis. 2007); In re Grand Jury Subpoena to Kramerbooks & Afterwords, Inc., Nos. 98-MC-135-NHJ, 98-MC-138-NHJ, 26 Med. L. Rptr. 1599, 1600 (D.D.C. Apr. 6, 1998); Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1052 (Colo. 2002).

As one court has already ruled in upholding the constitutional rights of Amazon customers against government intrusion into their expressive choices:  "[I]f word were to spread over the Net—and it would—that the [government] had demanded and received Amazon's list of customers and their personal purchases, the chilling effect on expressive e-commerce would frost keyboards across America."  In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. at 573.

To ensure that our clients' and North Carolina consumers' constitutional rights are not violated, and to minimize the clear chilling effect from the Department's information requests, we respectfully ask that the Department:

• Destroy the records that it has already received from Amazon that reveal what products were purchased by North Carolina customers;
•  
• Make a public statement acknowledging that it does not need records from Amazon or any other entity that reveal the specific products or the type of products that were purchased by each customer;
•  
• Agree to take all necessary steps to change its existing policy and practice and to institute a new policy and practice to ensure that the Department does not issue overbroad information requests in the future to entities such as Amazon that call for the disclosure of constitutionally protected customer information, such as what products were purchased by each customer.

We have reason to believe that the Department has issued similar information requests to entities other than Amazon and that the Department has received similar customer information which is constitutionally protected in response.  Please confirm whether that is correct.  That the requests to Amazon are not the only such requests that have been made makes it all the more imperative that the Department cease issuing such overbroad requests that are sweeping in constitutionally protected information. 

Please let us know how the Department wishes to proceed.  If we do not hear back from you by May 28, 2010, our clients will be forced to intervene in this lawsuit to protect their rights.  I will be out of the office for much of this week and all of the week of May 24, 2010, so please contact Aden Fine at (212) 549-2693 to discuss this matter further.  We look forward to hearing from you shortly.

Sincerely,

                   
Jennifer Rudinger
Executive Director
American Civil Liberties Union of North Carolina
P.O. Box 28004
Raleigh, NC 27611
                               
 
Aden Fine
Mariko Hirose
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY  10004