Internet Freedom, Gene Patenting, Fake Prom and More
Electronic Privacy Law is Older Than the World Wide Web—It's Time for An Upgrade
In 1986, there was no World Wide Web, nobody carried a cell phone, and the president was a man born in 1911. That was the year that the statute that protects the privacy of your electronic life—email, search terms, cloud computing, cell phone location records, postings to Facebook—was passed into law. Even then, Congress recognized that computerized record-keeping would pose privacy issues as information that had formally resided in the home (and been protected by the Fourth Amendment) moved to the hands of businesses.
Today, the Electronic Communications Privacy Act (ECPA), which should safeguard electronic communications records (like your email or chat logs) and the information you share with companies (like Google documents or social networking posts), is in serious need of an update.
Fortunately, the ACLU isn't alone in that opinion. Other civil liberties groups and major corporations like Google, Microsoft and AT&T agree. That's why we've all joined together to ask Congress to reform ECPA. We all believe that law enforcement should have to go to a judge and get a warrant that says it has probable cause to believe you've committed a crime before it can read your email, browse through your social networking account, or track your location.
This is precisely what the Framers of the Constitution intended. The Fourth Amendment recognized that citizens of a democracy need privacy for their "persons, houses, papers, and effects." Two hundred years ago, those papers would have been in our homes and firmly protected by the Constitution. The fact that they are now held on the servers of private companies doesn't change the principle governing our privacy rights.
Modernizing ECPA is the first step in a long process of reforming digital rights. The ACLU believes the law should extend probable cause protection to other types of records (like who you call, text and email). We believe that illegally-obtained digital information shouldn't be used in court and that there should be strict record-keeping of all law enforcement requests.
Some folks in our coalition agree with this, others wouldn't go this far. But we do agree on the fundamentals: without criminal suspicion, the government shouldn't be reading our personal correspondence online or tracking our movement offline.
>> Take action: Tell Congress that it's time our privacy laws got an upgrade.
Internet Freedom and Innovation at Risk
A federal appeals court this week ruled that the Federal Communications Commission (FCC) cannot require broadband service providers to treat all lawful Internet content equally. The decision rendered the FCC unable to enforce "network neutrality," the principle that Internet users have the right to use applications and access and transmit data of their choice free of discrimination by network providers.
The ruling came in Comcast v. FCC, in which the nation's largest cable company challenged the FCC's authority to enforce net neutrality after Comcast was discovered to have been disrupting operation of the software program BitTorrent independently of any network congestion. Specifically, the U.S. Court of Appeals for the District of Columbia ruled that under Title I of the Communications Act, the FCC cannot stop Internet providers from giving preferential treatment to the Internet content or applications of their choice by, for example, allowing some content to reach customers speedily while slowing down or even blocking other data.
In 2005, the FCC decided to regulate the Internet as an "information service" under Title I of the Communications Act, allowing broadband providers to pick and choose which services and information to transmit. That same year, the ACLU argued in the Brand X Supreme Court case that broadband providers should be regulated under Title II, which would protect against discrimination. While this week's ruling found that the FCC had exceeded its authority under Title I, the FCC can still choose to regulate network providers under Title II.
>> Take action: Support the FCC's Efforts to Restore Net Neutrality
>> Learn more about net neutrality.
Victory! ACLU Wins Gene Patenting Case
Watch CBS's 60 Minutes profile about our recent victory in the ground-breaking gene patent case.
Last week, federal district court Judge Robert Sweet made history by issuing the first ruling ever that human genes can't be patented. The ruling follows a lawsuit brought by a group of patients and scientists represented by the ACLU and the Public Patent Foundation (PUBPAT).
The ACLU's and PUBPAT's lawsuit was against Myriad Genetics and the University of Utah Research Foundation, which hold the patents on the BRCA genes, as well the U.S. Patent and Trademark Office (USPTO). The suit charged that the challenged patents are illegal and restrict both scientific research and patients' access to medical care, and that patents on human genes violate the First Amendment and patent law.
The specific patents the ACLU had challenged are on the BRCA1 and BRCA2 genes. Mutations along the BRCA1 and BRCA2 genes are responsible for most cases of hereditary breast and ovarian cancers. Myriad's monopoly on the BRCA genes makes it impossible for women to access alternate tests or get a second opinion about their results—allowing Myriad to charge a high rate for their tests.
The precedent-setting ruling marks the first time a court has found patents on genes unlawful and calls into question the validity of patents now held on approximately 2,000 human genes.
Because the ACLU's lawsuit challenges the whole notion of gene patenting, its outcome could have far-reaching effects beyond the patents on the BRCA genes. Approximately 20 percent of all human genes are patented, including genes associated with Alzheimer's disease, muscular dystrophy, colon cancer, asthma and many other illnesses.
"This ruling is a victory for the free flow of ideas in scientific research," said Chris Hansen, a staff attorney with the ACLU First Amendment Working Group. "The human genome—like the structure of blood, air or water—was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas."
>> Learn more: Watch CBS's 60 Minutes profile about our recent victory in the ground-breaking gene patent case.
Private Contractor at DHS Instructs Police to Arrest Mother of Four
As the ACLU has been pointing out for years, the terrorist watchlists are a mess. But a recent story in the New York Times illustrates this very well.
The name of a Stanford University doctoral student and mother of four, Rahinah Ibrahim, was found on a no-fly list when she tried to fly out of the United States recently. She was handcuffed, searched and jailed—then released without explanation. She then had her U.S. visa revoked—blocking her from returning to the U.S., again without explanation. And of course, like everybody else whose name comes up on one of these watchlists, she could not find out why she is on the list or how to get off.
The Times reports a very interesting new piece of information about the operation of the watchlists, however. When Ibrahim triggered the no-fly list at the airport, the San Francisco police contacted Washington, where an employee of U.S. Investigations Services—a private company contracting for DHS—told the San Francisco police to arrest her. In the United States, nobody is supposed to be arrested without probable cause that they have committed a crime. The idea that someone can be arrested based on the fact that their name is somewhere within our security bureaucracy—at the direction of a corporate contractor 2,500 miles away—just sums up what's wrong with the watchlist system.
As the ACLU has reported on several occasions, there is a newfound enthusiasm for reporting suspicious activity within the security establishment. What it translates into is the logging and reporting of a broad range of innocent, everyday behavior, and innocent people are being harassed for no reason—especially when they look Arab or Muslim. In her lawsuit over her arrest, Ibrahim has had to battle against a government which used secrecy at every turn to try to defend its actions. Ultimately, as the Times reports, "a federal judge scoffed at the government's claim for secrecy" and accused the government of "abusing" the secrecy privilege.
The United States can't simply throw together new infrastructures like the watchlists without including rigorous due process procedures. But that's what the Bush administration did, and unfortunately, the Obama administration is following suit—full steam ahead. We must demand that fairness and due process be integrated into this system on a much deeper level.
Fake Prom, Real Hurt
Show your support for Constance McMillen by asking your Representative to support the Student Non-Discrimination Act.
We've told you about the ACLU lawsuit on behalf of Constance McMillen, the Mississippi student whose school canceled the prom rather than let her attend with her girlfriend. Last month, a federal judge in Mississippi ruled that the school violated Constance's First Amendment rights. However, the judge was satisfied by the school's promise that Constance would be welcome at a private prom, so he did not force the school to put its own prom back on.
Last Friday, Constance went to a private dance that was billed as the school prom. The event—attended by Constance, her date and five other students—was essentially a decoy event. According to news reports, virtually all of the other students went to a parent-sponsored prom to which Constance was not invited.
So many people have contacted us because they are outraged by this situation and want to do something. There's a way we can all help Constance—by demanding that Congress pass the Student Non-Discrimination Act.
The Student Non-Discrimination Act would be the first comprehensive federal prohibition against discrimination in public schools based on a student's sexual orientation or gender identity.
Discrimination and harassment are an unacceptable daily reality for too many LGBT students all across the country. If outrageous experiences like the one Constance McMillen has been through are going to end, we have to respond.
>> Please help make schools safer for all students like Constance by urging your Representative to support the Student Non-Discrimination Act.
Formerly-Excluded Muslim Scholars Arrive in U.S.
George Packer (left), Dalia Mogahed (center) and Tariq Ramadan (right) speaking on the panel, "Secularism, Islam and Democracy: Muslims in Europe and the West" at Cooper Union in New York this week.
Two prominent scholars arrived in the United States after years of being wrongfully-denied entry to the country on the basis of their political views. The ACLU challenged the denial of visas to Professors Adam Habib of the University of Johannesburg and Tariq Ramadan of St. Antony's College at Oxford University in separate lawsuits filed on behalf of American organizations that had invited them to speak to U.S. audiences.
During the Bush administration, the U.S. government denied visas to dozens of foreign artists, scholars and writers not on the basis of their actions but on the basis of their ideas, political views, and associations.
In a major victory for civil liberties, Secretary of State Hillary Clinton in January signed orders effectively ending the exclusion of Professors Habib and Ramadan. Both men have since obtained 10-year visas.
This week, Professor Adam Habib spoke about his exclusion and transnational social movements at Harvard Law School at an event co-sponsored by the ACLU of Massachusetts, and gave a public talk at the CUNY Graduate Center in New York on the topic of political and social movements in South Africa today. Upon his arrival in the United States, Professor Habib commented: "This is not only a personal victory but also a victory for democracy around the world, and I hope this signals a move by the administration to begin restoring the liberties and freedoms that have been so badly eroded in recent times."
The ACLU also co-hosted a panel discussion in New York that featured Professor Tariq Ramadan in his first U.S. appearance since he was barred from entering the country in 2004. Before a sold-out audience at Cooper Union’s Great Hall, Professor Ramadan discussed and defended his views related to secularism, Islam, and democracy on a panel. In an article about his entry to the U.S., Professor Ramadan stated: "I'd like to carry on the work I've been doing, to create a collaboration between western countries and Muslim majority countries."
>> Learn more about ideological exclusion.