ACLU ONLINE NEWSLETTER 5NOV10

ARTICLES and actions on paycheck fairness, gene ownership, Amazon and privacy, cell phone tracking, fbi monitoring, religion, Bagram and more. Read, participate and share!

Enough Already! Let's Pass Paycheck Fairness! Who Owns Your Genes? You Do. Victory! Federal Court Upholds Amazon Users' Privacy and Free Speech Rights Cameras in the High Court: It's About Time Warrantless Cell Phone Tracking Unconstitutional, Federal Judge Finds Civil Liberties Minute: The FBI and Your Online Habits ACLU Challenges Discriminatory Arizona School Tuition Program Government Can Keep Basic Facts about Bagram Prisoners Secret, Federal Court Rules Civil Liberties Minute: The FBI and Your Online Habits Do you mind if your online habits are monitored and recorded by the FBI? >> Listen to the podcast. ACLU Challenges Discriminatory Arizona School Tuition Program Earlier this week, the U.S. Supreme Court heard arguments in an ACLU case challenging an Arizona tax credit-funded school tuition program under which most of the state-funded, private school scholarships are unconstitutionally awarded on a religiously discriminatory basis. Under the challenged program, Arizona scholarships are awarded by School Tuition Organizations (STOs). These organizations are certified and closely supervised by the state and financed exclusively by state income tax revenues. Taxpayers can direct their tax payments to the STOs for a 100 percent tax credit, rather than pay the Department of Revenue — essentially costing the taxpayers nothing. The cost is borne entirely by the state's general fund. Since its passage in 1997, the tuition tax credit scheme has been dominated by religious discrimination. More than half of over $50 million awarded by STOs in 2009, for example, was awarded by STOs that required students to attend religious schools in order to receive scholarships. The Arizona Christian School Tuition Organization, a petitioner in this case, states that its goal is "to further Christian education by effectively implementing the provisions of [the program] for the benefit of Christian school students and their families." "The decision to award scholarships in Arizona rests entirely in the hands of taxpayer-funded, state-sanctioned organizations, the majority of which are religious in nature," said Daniel Mach, Director of the ACLU Program on Freedom of Religion and Belief. "The government should have no role in supporting programs that play favorites when it comes to religion." "By appointing religious organizations to disburse scholarships that are funded completely with tax revenues and allowing those organizations to grant scholarships based on the religion of applicants, the state is unconstitutionally engaging in religious discrimination," said Paul Bender, lead counsel, who argued the case for the plaintiffs. "We are hopeful that the Court will see that this is not a program of private taxpayer charity but a government spending program that supports religious discrimination." >> Learn more about this case. back to top Government Can Keep Basic Facts about Bagram Prisoners Secret, Federal Court Rules The Defense Department can continue to withhold key information from the public about the hundreds of detainees imprisoned by the U.S. military at Bagram Air Base in Afghanistan, according to a federal court ruling last month. The ruling came in an ACLU Freedom of Information Act (FOIA) lawsuit against the Defense Department and the CIA for records related to the detention and treatment of prisoners at Bagram (now known as Parwan). The Defense Department has released the names of the 645 prisoners who were detained there as of September 2009 but has kept secret other vital information, including their citizenship, how long they have been held, in what country they were captured and the circumstances of their capture. The ACLU charged that the Defense Department is improperly withholding these basic facts about Bagram prisoners and their detention, and asked the U.S. District Court for the Southern District of New York to order the Defense Department to turn over the information. In denying the ACLU's motion, the court also ruled that the CIA did not act improperly when it refused to even confirm or deny whether the CIA had records about the rendition and interrogation of Bagram detainees. The U.S. military has announced its intention to transfer control of Bagram prison to the Afghan government next year. However, media outlets have reported that the Obama administration intends to maintain control over a portion of the prison and to continue detaining some prisoners in U.S. custody there, including non-Afghan terrorism suspects captured outside of Afghanistan and prisoners considered "enduring security threats." "The public has a right to know how long the U.S. has kept people locked up in military detention and under what circumstances," said Melissa Goodman, staff attorney with the ACLU National Security Project. "The lack of transparency about these key facts is even more disturbing considering the possibility that the U.S. will continue holding and interrogating prisoners at Bagram well into the future. Unfortunately, today's ruling will allow the government to continue hiding this vital information." >> Learn more about the ACLU's FOIA lawsuit. back to top Do you know somebody who would be interested in getting news about the ACLU and what we're doing to protect civil liberties? Help us spread the word about ACLU Online — forward this newsletter to a friend.

November 5, 2010 Enough Already! Let's Pass Paycheck Fairness! Now is the time to end wage discrimination once and for all. Tell your senators to support the Paycheck Fairness Act today. When the Senate comes back to Washington on November 15 to finish its post-election work, one of the very first issues they will be voting on will be the Paycheck Fairness Act — legislation to finally achieve equal pay for men and women in the workplace. It's been 47 years since the passage of the Equal Pay Act, and yet, according to data from the U.S. Census Bureau, women, on average, make only 77 cents for every dollar earned by men. The figures are even worse for women of color. African American women only earned approximately 61 cents and Latinas only 52 cents for each dollar earned by a white male. Chronic wage discrimination can deprive a woman of between $700,000 and $2 million over her career. The House already passed this legislation. And the Senate is scheduled to vote on it as soon as November 17! We are very close to passage in this Congress, but we may not get another chance to finally close the wage gap for a very long time. That's why it's so important to let your senators know that you care about equal pay today. >> Take action: With less than two weeks remaining to pass the Paycheck Fairness Act in this Congress, we need our Senators to act now! back to top Who Owns Your Genes? You Do. Tell Congress your genes aren't for sale! The U.S. government filed a friend-of-the-court brief last week in a lawsuit brought by the ACLU and the Public Patent Foundation (PUBPAT) challenging patents on human genes. The government agreed with our stance that isolated DNA is not patentable. The ACLU and PUBPAT filed the lawsuit in May 2009 challenging the patents held by Myriad Genetics on the human genes BRCA1 and BRCA2, which are associated with hereditary breast and ovarian cancer. The lawsuit charged that the patents stifle diagnostic testing and research that could lead to cures and that they limit women's options regarding their medical care. A federal court ruled in March 2010 that the patents on BRCA1 and 2 are invalid, and Myriad is appealing that ruling in the U.S. Court of Appeals for the Federal Circuit. According to the government's brief, "The chemical structure of native human genes is a product of nature, and it is no less a product of nature when that structure is 'isolated' from its natural environment than are cotton fibers that have been separated from cotton seeds or coal that has been extracted from the earth." "We are extremely gratified that the government has agreed with us that genes are products of nature and therefore not patentable," said Sandra Park, staff attorney with the ACLU Women's Rights Project and a lawyer on the case. "Gene patents restrict patients' access to their own genetic information and chill important research. The lower court correctly found that no one should be able to patent human genes, and we are confident the appeals court will uphold that decision." >> Take action: Tell Congress your genes aren't for sale! back to top Victory! Federal Court Upholds Amazon Users' Privacy and Free Speech Rights Last month, a federal district court in Seattle ruled that the North Carolina Department of Revenue's (NCDOR) demands for detailed information about the purchases of Amazon.com customers violated the Constitution and the federal Video Privacy Protection Act. NCDOR had asked for the records as part of a tax audit of Amazon. Amazon provided the agency with detailed information regarding the items purchased, including the dates of purchase, amount of purchases, and county to which the items were shipped — this being the only information, North Carolina has acknowledged, needed to assess sales taxes. Amazon did not turn over records revealing its customers' identities and linking customers to specific purchases, even though the requests called for such information. After North Carolina refused to back down from its demand for user information and Amazon sued, the ACLU intervened on behalf of several North Carolina residents who feared that disclosure of the books, movies, music, and other items they had purchased would reveal highly personal and intimate details of their lives. The court agreed that the government has no right to know such personal information. We applaud the court's ruling, the latest in a line of decisions making clear that the First Amendment limits the government's ability to seek information about individuals' reading, listening, or viewing choices. The court concluded, as we argued, that even the prospect of the government tracking these choices is harmful because it might cause any of us to fear buying perfectly legal materials online. Requesting information about what people are purchasing online causes real harm to real people, and it is unconstitutional in these circumstances. The ACLU will continue to fight against government requests for information that is so personal and private — and is so fundamental to our society. back to top Cameras in the High Court: It's About Time >> Urge your Senator to support the bill allowing broadcast television coverage of Supreme Court proceedings. Former Chief Justice of the Supreme Court Warren Burger once said: "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." Yet despite this sentiment and the benefits of transparency in government, television cameras are still banned from open Supreme Court proceedings. This session alone, the court is scheduled to hear cases involving vital issues related to free speech, immigration, the establishment clause, and state secrets. Additional access to the court would allow Americans the opportunity to gain a better understanding of these issues and the debates surrounding them. Isn't it time the court moved into the 21st century and allowed the American people to witness first-hand the discussions surrounding these truly monumental issues? In a move to correct this outdated situation, Sen. Arlen Specter (D-Pa.) introduced a bipartisan bill that would allow broadcast television coverage of open Supreme Court proceedings. The bill has advanced out of the Senate Judiciary Committee and now awaits a floor vote. >> Take action: Urge your Senator to support the bill allowing broadcast television coverage of Supreme Court proceedings. back to top Warrantless Cell Phone Tracking Unconstitutional, Federal Judge Finds In August, a New York federal court found that law enforcement agents are constitutionally obligated to get a warrant based on probable cause before obtaining historical cell phone location information. And in September, the 3rd Circuit Court of Appeals held that judges may order the government to get a warrant for cell phone location information based on probable cause. However, the 3rd Circuit also held that judges are not obligated to require probable cause and cautioned that they should only require the government to meet this high standard on rare occasions. Now, another court has joined the fray. In a detailed opinion citing documents obtained through litigation by the ACLU and Electronic Frontier Foundation, Judge Stephen Smith of the Southern District of Texas held that "warrantless disclosure of cell site data violates the Fourth Amendment." A few aspects of the opinion are worth noting: According to Judge Smith, "the Government seeks continuous location data to track the target phone over a two month period, whether the phone was in active use or not." This is notable because the cell tracking applications we have seen previously only sought location information for those moments when an individual actually made a phone call. The government is now asking for a great deal more information, and consequently, its requests are now more invasive than we previously thought. Cell tracking information has grown to be more accurate over time. In fact, it is because of these "refinements in location-based technology" that Judge Smith concludes that requests for cell tracking information trigger the Fourth Amendment's warrant requirement. The Fourth Amendment requires the government to get a warrant and show probable cause to obtain historical cell tracking information. The court reached this conclusion both because cell tracking reveals information about constitutionally protected spaces, such as the home, and because the prolonged nature of such surveillance is very invasive. The ACLU agrees with Judge Smith that the government should be required to obtain a warrant and show probable cause before obtaining cell tracking information. As powerful new technologies enhance the ability of government agents to track our every move, it becomes all the more important that the courts hold the government to a rigorous standard it's able to access such sensitive information. back to top Join us on...

American Civil Liberties Union 125 Broad Street, 18th Floor New York, New York 10004-2400 Lisa Sock and Joe McLaughlin, Editors

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