News & Commentary

Each Friday, we’ll bring you updates on the latest civil liberties news from Maine and the nation. This week, we bring you highlights from the national ACLU Blog of Rights. What’s Wrong With CISPA We've written extensively about the Cyber Intelligence Sharing and Protections Act (CISPA) over the last year, but since the House Permanent Select Committee on Intelligence is set to mark the bill up next week, and the full House to vote on it the week after that, we're posting in more depth about its shortcomings. Information sharing isn't offensive per se; it's really a question of what can be shared, with whom, and what corporations and government agencies can do with it. VICTORY! Students Triumph over Private Prison Company’s Bid to Name College Football Stadium For-profit prison company GEO Group announced its decision last night to withdraw the $6 million donation it made to Florida Atlantic University in exchange for naming rights to the school's football stadium. Student groups, faith groups, the ACLU, and other civil rights groups actively campaigned for the university to dissociate from GEO Group. CIA to Promote Head of "Black Site" Where Torture Occurred? According to media reports, the acting director of the CIA's clandestine service has, for the last month, been an official who was "in the chain of command" in the CIA's torture program in the years after 9/11. According to a book by Jose Rodriguez, the former head of the clandestine service, this unnamed official even headed one of the early CIA "black sites"—notorious secret prisons set up overseas to torture detainees. Media reports indicate that the unnamed career officer also reportedly signed off on the destruction of 92 videotapes documenting some of the most brutal mistreatment carried out under the CIA program.

Take action now to bring our laws up to speed with advancing technology! Our privacy laws haven’t been updated since 1986 – that’s before the World Wide Web, before we all carried cell phones, before we used email to communicate on a daily basis.   TAKE ACTION TODAY! Now the Maine legislature has a chance to put necessary updates in place. LD 236 and LD 415 would require a probable cause warrant before the police could use surveillance drones to spy on us or track the location of our cell phones. New tools shouldn't be exempt from the 4th Amendment. Take action now to bring our laws up to speed with advancing technology! Click HERE to send your legislator an email!

If you’ve never heard of Myriad Genetics, now might be the time to become acquainted. Myriad is a molecular diagnostic company, and they own part of your body. More specifically, they own patents on two human genes called BRCA1 and BRCA2, both of which are associated with inherited risk of breast and ovarian cancer. We all have these genes, but people with certain mutations are much more likely to experience cancer in their lifetimes.   Because Myriad owns the patent on these genes, they have the exclusive rights to stop all clinical testing and research done on the genes. Their monopoly on the genes makes it impossible for women to access alternate tests or get a comprehensive second opinion about their results. And it also allows Myriad to charge a high price for its tests.   This is probably the point where you expect a big “April Fools!” announcement. A private company can’t own part of your body and keep other researchers from even looking at it, right? Sadly, gene patenting is no joke. However, if the ACLU is successful in our current legal challenge, it might be a thing of the past.   In just a couple weeks the Supreme Court will hear our lawsuit, Association for Molecular Pathology v. Myriad Genetics, which challenges the basic idea that human genes can be patented. The Court has consistently said that products of nature and laws of nature are not patentable. Myriad claims that they “invented” the genes in question because they “isolated” them and removed them from the rest of the genome. We think that’s ridiculous and we’re hoping the Court agrees. And with roughly 20 percent of human genes already patented, their ruling won’t just affect these two genes, either.   For more information on gene patenting and the ACLU’s upcoming lawsuit, click here.

Each Friday, we’ll bring you updates on the latest civil liberties news from Maine and the nation. Transgender Athletes: The Maine Principals’ Association approved a policy for transgender athletes in Maine’s high schools. Equality Maine applauded the decision and the effort of the Maine Principals’ Association to make athletic participation more accessible to transgender students. Read the Bangor Daily News article here.   Marriage at the Supreme Court: Prop 8 The Supreme Court this week heard two court cases dealing with same-sex marriage this week. On Tuesday, the court heard Hollingsworth V. Perry, Commonly referred to as the “Prop 8” case.  When the California Supreme Court legalized same-sex marriage, California passed Proposition 8, which amended the state constitution there to overturn the Supreme Court’s decision. It’s gone through some interesting legal turns since: see a break down here. The ACLU filed an amicus brief in the case that will hopefully end in marriage being legal, at a minimum, in California.   Defense of Marriage Act On Wednesday, the Supreme Court heard United States v. Windsor, a challenge to the Defense of Marriage Act brought in part by the ACLU. When her partner Thea died, Edie had to pay an extraordinary sum in taxes that she wouldn't have had to pay if the federal government recognized their marriage. Read more about how the ACLU helped get to this moment. Watch a moving video of Edie Windsor here.   Cellphone Location Data: If somebody knows where you are, they can figure out who you are. That somebody could be the government or a private corporation, but in a report published this week, it was researchers at MIT and Harvard who revealed that, “anonymized cell phone location data demonstrate patterns of behavior that could be used to identify a person.” In this case, they did so with 95 percent accuracy. Read the Slate article here. Read Edwards blog post on cell phone tracking here.

Your cell phone is tracking you.  We just can't say this enough at the ACLU. Everywhere you travel with a cell phone can be recorded and traced.   What is happening right now: Police use various methods to track cell phones.

Remember the song "Walk Like An Egyptian" by the Bangles?  It topped the chart for four weeks back in 1986.  That's the last time our nation's electronic privacy laws were updated when the Electronic Communications Privacy Act was signed into law by then President Ronald Reagan.  In 1986, the cell phones that were available were far too small to fit in one's pocket.  Perhaps no one envisioned then that the cell phone itself and other electronic devices would become essentially miniature tracking units that most of us carry around with us everywhere we go. The ACLU is working nationwide to change our laws to reflect the extraordinary new surveillance capabilities of emerging technologies.  Last week, the ACLU of Maine testified in support of a bill, LD 415, that would put in place warrant requirements for the use of cell phone tracking by law enforcement.  Seems simple right?  After all, the Fourth Amendment to the Constitution states plainly: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The United States Supreme Court ruled in the case of United States v. Jones (2012) that law enforcement need a warrant to place a GPS tracking device on one's vehicle. So what about the GPS tracking device in your pocket?  Law enforcement and the Maine Attorney General's office think a warrant is not necessary; they testified last week in opposition to the bill. It's not surprising that law enforcement want to be able to engage in cell phone tracking without having to go before a judge to obtain a warrant.  As a technology expert testified to the Maine legislature's Judiciary Committee last week, the information that law enforcement can obtain from the cell phone companies about an individual's real-time or historic movements is extraordinarily precise.  As a New York Times article last summer noted, "That's Not My Phone, It's My Tracker."  Your cell phone -- smart or not -- pings on the nearest cell towers every seven seconds.  Law enforcement can compile a map of your longitudinal and latitudinal coordinates that identifies everywhere you go in a day from the doctor's office to church to the home of a friend or to the peace rally.  Cell phone tracking technology allows for remote shadowing of almost anyone all from the comfort of a police station. The Maine State Legislature has a choice.  They can pass LD 415 and put in place warrant requirements for cell phone tracking.  Or they can defer to law enforcement and an outdated law that passed when "Walk Like an Egyptian" was new.  You can help your legislators make the right decision by contacting them today and urging support of LD 415.

Each Friday, we’ll bring you updates on the latest civil liberties news from Maine and the nation. Government Transparency: Today, the ACLU and others told the Maine Legislature’s Transportation Committee that the public has a right to know about public-private transportation projects. Currently, information about public-private partnership projects are kept secret. A proposed law would change that. Read more here.   March Anti-Choice Madness: Mother Jones had a bracket you probably won't see around the office: An anti-choice March Madness bracket. Underdog North Dakota worked hard to become this year’s anti-choice champions. One bill banned abortions as early as 6 weeks, before many women would know that they’re pregnant. Click here to see the Anti-Choice March Madness bracket.  Click here to read the USA Today story. Same-sex marriage: Nationwide support for same-sex marriage jumped to an all-time high of 58%, according to a new Washington Post-ABC News poll. And next week, the Supreme Court will hear two cases on marriage equality. One of those is Edie Windsor’s challenge to DOMA - click here to hear the story by Nina Totenberg. Some think the marriage cases could define this Supreme Court’s legacy. GPS Location Tracking Bill: Yesterday, the Maine Legislature’s Judiciary Committee heard testimony on a bill that would require law enforcement to obtain a warrant before getting access to an individual’s present or historical location information. Said Shenna Bellows, “It’s no longer acceptable to say 'if you want to protect your privacy, don’t use the technology.' Cell phones and GPS devices are unavoidable necessities of modern life for most people, and using them should not make us subject to unchecked monitoring by the police.” Read more about that here.

Check out this blog post from our national Washington Legislative Office on the bipartisan push for digital due process rights:

Today, Augusta was an exciting place to be!  People from all across Maine came out to testify in a public hearing before the legislature's Judiciary Committee on whether or not concealed weapon permit information should be made available to the public.  We testified in opposition to this bill, based on our desire to strike a balance between personal privacy and the public's right to know.  Below is the written testimony we gave at the public hearing today. If you're curious about the rest of the public testimony from the hearing, you can find it online here - probably tomorrow or the next day. TESTIMONY OF SHENNA BELLOWS An Act to Ensure the Confidentiality of Concealed Weapon Permit Holder Information LD 345 – Ought Not to Pass Submitted to the JOINT STANDING COMMITTEE ON JUDICIARY March 12, 2013 Senator Valentino, Representative Priest and distinguished members of the Joint Standing Committee on Judiciary, greetings.  My name is Shenna Bellows, and I am Executive Director of the American Civil Liberties Union of Maine, a statewide organization committed to defense of the Constitution and the Bill of Rights through advocacy, education, and litigation.  On behalf of our members, I urge you to oppose LD 345, An Act to Ensure the Confidentiality of Concealed Weapon Permit Holder Information. For the past two years, I have served on the Board of Directors of the Maine Freedom of Information Coalition.  From 2005 to 2012, I served on the Right to Know Advisory Committee.  For two years, I chaired the Public Records Exceptions Subcommittee of the Right to Know Advisory Committee.  That subcommittee is tasked each year with reviewing a substantial portion of confidentiality exceptions to Maine’s Right to Know laws.  As a subcommittee, we frequently wrestled with the competing constitutional interests of privacy and transparency that are the subject of this bill today.  On the one hand, the public’s right to know what the government is doing is fundamental to our representative democracy.  The achievement of government of and by the people requires that the people know what the government is doing. On the other hand, the government has significant powers to collect personal information about the citizenry and should take great care in dissemination, as well as collection, of that data. The mission of the ACLU of Maine is to defend both these interests of government transparency and personal privacy, and our position in opposition to LD 345 was developed with these constitutional precepts in mind. The permit to carry a concealed weapon is a government document, representing a decision made by a governmental entity. Under statute, law enforcement has discretion in issuing the permit to determine whether the applicant has “demonstrated good moral character.”  Law enforcement also has the authority to determine whether the applicant’s responses to the detailed application are acceptable.  Discretion opens the door to potential discrimination. The only way to protect against corruption and abuse of that decision-making process is to ensure that the process is open to the public for review. For example, if I apply for a license to carry a concealed weapon and am denied, the only way to ascertain whether the process was fair is for me to have access to the list of people who were granted such permits in my town.  Only then can I know whether my neighbor down the street of the same age and background received a permit when I didn’t. Only then might I discover that no women or no black men were receiving permits. Or, only then might I discover, as happened in South Dakota and Kentucky in two ACLU cases, that no immigrants were receiving permits.  In 2011, the ACLU of South Dakota sued when a British citizen was denied the right to carry a concealed weapon in that state. A judge found that to be a constitutional violation, and the law was changed. The public right to know is an important check on any government abuse of power, and in this case, the power to determine who can and cannot legally carry a concealed firearm is significant.  LD 345 would eliminate the only safeguard we have against corruption and abuse in the system of distribution of concealed weapons permits. LD 345 would make it more difficult to ensure that the concealed weapons permitting law was implemented in keeping with Fourteenth Amendment guarantees of equal protection under the law. On a broader scale, democracy depends on an informed citizenry and government transparency.  The debate about gun control and whether people should be able to carry concealed weapons in public, including in this building, is a rightfully emotional debate.  But without information about which and how many people are granted concealed weapons permits each year, the public is left to debate on passion and principle without all of the facts.  Furthermore, the public cannot make an informed decision about whether they agree or not with the way in which government officials are carrying out the concealed weapons permitting law if all information about its implementation is also concealed. This bill is not a gun control or gun rights bill; it is a government secrecy bill. If this bill passes, it will further limit our ability to have an informed and well-reasoned conversation about gun rights. Secrecy breeds mistrust, and this bill will certainly undermine the public trust in our concealed weapons law. In addition to checks and balances against governmental abuse of the concealed weapons statute, freedom of this information yields another vital public benefit: safety. A February Portland Press Herald article pointed to an employer, John Peters of Downeast Energy, who made a public records request in 2011 to see if any of his employees had a concealed weapons permit. The paper reported that: “For Peters, the records request was about workplace safety and peace of mind.  ‘I wasn't the only one who wanted to know who was bringing a gun to work. A lot of the people who work here wanted to know, too.’” Outside of the workplace, there are important public and personal safety reasons that an individual might want to know whether someone in her life possesses a concealed weapons permit. For example, a domestic violence victim might want to check whether her abuser had a concealed weapons permit. It’s important to note that there is no permitting process in Maine for open carry. Anyone who wishes to publicly display a firearm may do so, and members of the public can then make a decision to respond as they think best. But a concealed weapon without corresponding public information about that permit takes that choice away. The issue of personal privacy is an important one. The ACLU of Maine has consistently advocated for the protection of personal information held by the government, and we do so in this case. We do not advocate for the release of application information to the public. We believe that the permit document itself could be redesigned to contain less sensitive personal information about the permit holder. In most cases, it is not unreasonable to make some information public, including an individual’s name, address and status as a concealed weapons permit holder. This sort of personal information is already available in divorce records, bankruptcy records, property tax records and many other areas of statute. Hunting and fishing licensing information is open to the public. Making this limited data public does not contribute to identity theft, a real but often misunderstood problem. Maine’s Freedom of Access laws, title 1, section 402, create some exceptions to the definition of public record for personal information like social security numbers.  But the confidentiality of social security numbers applies across the board to all governmental records.  By contrast, LD 345 would create a special exemption to the freedom of access statutes just for firearms.  We urge you not to treat concealed weapons permits any differently under the freedom of access laws than you do other types of information like hunting licenses, which are also a certain indicator of gun ownership. There is one exception to the public release of permit information that should be preserved and possibly strengthened. I referenced victims of domestic violence earlier in my testimony, and as a member of the Right to Know Advisory Committee I advocated in favor of the address confidentiality program for victims.  Under the address confidentiality program, the address of a victim of domestic violence, sexual assault or stalking is not contained in any public record. That is vitally important, and while current statute protects the addresses of victims from disclosure, this committee may want to consider adding reinforcing language to title 25, section 2006 to make it clear to all issuing authorities that the name and address of victims of domestic violence, sexual assault or stalking must remain confidential. Concealed weapons permits have been accessible to the public since 1985. Nothing has changed in Maine except heightened concern and renewed public attention to the debate about gun rights and gun control. Concealment of facts, already in the public domain for 28 years, will not help this debate. To the contrary, LD 345 undermines government transparency, public trust in our concealed weapons law, and the public’s right to know.  For these reasons, we urge you to vote ought not to pass.