We, your Black friends, family, and colleagues, are not okay. A Black woman, asleep in her bed, was murdered in cold blood and the system didn’t just find her killers innocent — they found their crime, the crime of ending the life of a Black woman, unworthy of even being charged.

We work alongside you at the American Civil Liberties Union, fighting for a country that’s never loved us and forced to fight within a system built to harm and kill us. A legal system that says explicitly that Black lives do not matter. A system that calls for more accountability for putting bullets into drywall than into a Black woman.

I ask you to imagine how the system would have responded if these police had murdered a white woman EMT (during a global pandemic) in her sleep. Does anyone think it would have taken six months to convene the grand jury? Does anyone think there wouldn’t even be a trial? Does anyone think that this country reacts and punishes the harm done to Black women with even a semblance of the outrage and protection we reserve for other communities?

If you are not Black and you’re asking yourself, “How can I help my Black friends, family members, and colleagues?”, here is a non-exhaustive list of what you can do today:

1. Offer your Black staff and colleagues the opportunity to take time off and help redistribute their workload. Do not just send a note that says, “It’s okay if you need to take some time.” Send a note that says, “I want to support you in taking time off. What can I take off your plate? What meetings can I attend in your place? How can I make that happen?”

2. Be mindful of when/how you are processing your feelings. If you’re not Black, this is the time to be especially mindful of how, when, and with whom you are processing your grief, pain, and anger. Do not put additional emotional labor on your Black friends and colleagues. 

3. Do acknowledge the impact of this tragedy. Carve out space in agendas you create to address the trauma and be clear not to move on with “business as usual” without holding that space. 

4. Call each other in and call each other forward. Be in solidarity by spending your political capital on racial justice at work and find a way to do it without virtue signaling or centering yourself. Most of your allyship should take place “backstage,” out of the spotlight.

Continue educating yourself, amplifying Black voices, donating to Black leadership causes, protesting and demanding justice for Black lives. Those actions matter. At the very same time, support and uplift Black people — on your teams, in our organization, and in your life. For every public, external action you take for racial justice, I invite you to take an action inside our walls with that same spirit.

To my Black colleagues: I know you’re not okay. I’m not okay either. We have been fighting for justice every day for 400 years and today we are grieving, we are enraged, and we are exhausted. I see you, I’m with you, I am you. We are not alone in our grief, not abandoned in our anger, not uncared for in our exhaustion. We are in this with each other, with the legacies of our ancestors and the vision of our youth. With the wisdom of our elders and the unwavering guidance of our leaders.

Amber Hikes, Chief Equity and Inclusion Officer, ACLU

Customs and Border Protection (CBP), the nation’s largest federal law enforcement agency, operates with routine impunity. Now, the agency has asked the National Archives and Records Administration (NARA), which maintains federal agency records, to approve destruction of internal CBP records of misconduct. 
 
An agency rife with abuse should not be allowed to purge its own paper trail of wrongdoing. That’s why this week, the ACLU of Texas Border Rights Center, along with more than 100 partner organizations, filed a public comment urging NARA to reject CBP’s proposal. The principal reason: CBP’s own oversight system is a disaster, and future study of the agency’s failures of accountability will be stymied by the documents’ destruction. 
 
The documents CBP seeks to ultimately destroy include “records developed to track and monitor complaints that are or will be investigated by DHS Civil Rights and Civil Liberties (CRCL) regarding alleged violations of civil rights and civil liberties”; “records pertaining to administrative and criminal investigations on [CBP] employees, contractors, and those in CBP custody”; and records and reports of Prison Rape Elimination Act allegations. 

Today, CBP employs more than 44,000 Border Patrol agents and CBP officers, and maintains a budget of nearly $17 billion. Despite the agency’s massive workforce and budget, accountability mechanisms have failed to ensure any semblance of accountability. For example, a Cato Institute study found that between 2006 to 2016, CBP “misconduct and disciplinary infractions outstripped all other federal law enforcement” and “it is virtually impossible to assess the extent of corruption or misconduct … because most publicly available information is incomplete or inconsistent.” Just this year, instead of purchasing medical supplies for immigrants, CBP wasted the allocated funds on dog food and dirt bikes. 

The agency’s complaint and disciplinary systems are broken. According to data obtained by the American Immigration Council in 2017, the agency took “no action” in 95.9 percent of complaints filed against the agency between 2012 and 2015. Despite independent advisory panel recommendations issued in 2016, CBP has still not fixed its disciplinary system. The panel recommended CBP hire 350 internal affairs investigators and appoint a discipline czar to coordinate internal accountability. The agency has done neither.

CBP records related to CRCL investigations would, under this proposal, be destroyed after four short years. The ACLU of Texas and the ACLU of San Diego and Imperial Counties filed at least 11 separate complaints with CBP’s joint intake system in 2019 alone (See additional examples here, here, and here.). Those complaints contained numerous individual examples of CBP abuse and were built on hundreds of interviews. Only one resulted in a confirmed DHS Office of Inspector General investigation, while others received form letter responses from CRCL ensuring inquiry into the allegations with no further communication about the complaint. Documentation collected by CBP stemming from these complaints could prove vital to future examinations of a particularly abusive period in the agency’s history.  

Moreover, CRCL whistleblowers have also raised alarm bells about the oversight body’s diminishing ability to hold CBP accountable. Last year, former CRCL staff attorney and advisor Ellen Gallagher said the agency seemed to “mislead the public” by soliciting complaints of alleged violations “if [CRCL had no intention of specifically investigating or resolving those individual complaints.” Just last month, CRCL staff claimed publicly that CBP was ignoring their concerns about the development of a new use-of-force policy and the agency’s intention to use “chemical deterrents” at the border.   

CRCL’s frequent inaction and CBP’s own undermining of the office’s oversight role further bolsters the need for complete and permanent retention of internal agency records. We simply do not know what types of abuse could be documented in these files. 

CBP misconduct often only becomes public via leaks, investigative reporting, or lawsuits, meaning the loss of internal records could forever bury unknown abuses. For example, the first death of a child in CBP custody in over 10 years was revealed by journalists, after CBP failed to report the death to Congress, as required. Independent lawyers uncovered children held in deplorable conditions at a Border Patrol station in Clint, TX. Border Patrol’s racist and xenophobic Facebook page was uncovered by a reporter, and the prevalence of sexual harrassment and rape within the agency has been revealed only when survivors and former officials spoke up. Lawsuits have similarly uncovered severe agent misconduct, including kidnapping, sexual assault, and an agent intentionally running over a migrant. 

With systemic failures of oversight, CBP’s abject failure to hold its own personnel accountable, and a complete lack of transparency, the last thing the agency should be permitted to do is purge its own records.

Shaw Drake, Policy Counsel, ACLU Border Rights Center

As colleges and universities around the country attempt to resume some semblance of in-person education this fall, many schools are requiring their students to download COVID-19 apps as a condition of returning to campus. These apps vary in what they do, but we are highly skeptical of, or outright opposed, to many of them. It is unlikely that any of these apps will make a significant difference in stemming the spread of the coronavirus on campuses, and it appears that many such apps invade students’ privacy. Many of them, as professor of sociology and technology Zeynep Tufekci argues, are merely “performative” on the part of college administrators — an effort to make a show that they are doing something — and will likely prove to be actively counterproductive.
 
In public institutions, these app installation requirements represent a government demand that citizens install a particular piece of software on their personal phones. It is true that the current outbreak constitutes an extraordinary situation, but we don’t want this to open the door to a future where people become prisoners of their phones, as various government agencies use compulsory app installation rules to turn them into enforcement devices for all kinds of legal and administrative rules.
 
It is difficult for us at the ACLU to track what is happening at thousands of schools across the United States, but we encourage returning students and staff being asked to download apps onto their personal devices to ask some sharp questions of school administrators.
 
1. What does it try to do? Does it administer daily health surveys, remind you to get tested, or provide daily exposure notifications? Does it connect to testing or treatment regimes? Will it help you get in touch with campus health services, or inform you where you can get tested? Does it record your movements or the people that you are near? (We are skeptical and have raised many questions about both location tracking and proximity tracking as anti-coronavirus measures and oppose the former in all circumstances.)

2. Is it used as an enforcement device? Any apps that are used to try to ensure compliance with quarantines or social-distancing rules dramatically raise the stakes around their accuracy and dependability.

3. What data does it collect? Does it require students to identify themselves, or can it be run anonymously? Does it collect health information? If so, does that data align with current public health advice? Does it collect location data or associational data (who you spend time with)? How frequently does it collect any such information — i.e., how fine-grained is it?

4. Is that data stored centrally, or only on your device? Data that is stored on someone else’s computers raises many more privacy issues than data stored locally on your phone.

5. Who has access to the data collected by the app? A company? School administrators? Campus or town police? Others? If it is used as an enforcement measure, who is notified of suspected social-distancing violations — administrators, academic deans, campus police, others?

6. Is it voluntary? Are you given a choice about whether to use it? Are there places on campus you can’t go without the app?

7. What other policies govern its use? Have administrators communicated with you about its security or privacy protections? Are those protections strong?

8. How much control do you have over it? If it’s not voluntary, can you turn location tracking off, pause it, etc., or is it the functional equivalent of an ankle bracelet?

9. What servers does it talk to? Some apps are built with third-party software development kits (SDKs) that are unnecessarily intrusive, show advertisements, or consume your battery or data plan.

10. Is the source code for the app available? Have students or faculty at your university had the opportunity to review that code to verify that the app operates as advertised? If not, why not?
 
Some COVID-19 apps — for example, symptom checklists for student that properly protect privacy — may be harmless or even helpful. But many others will create bad precedents while doing little to stem the spread of COVID. Asking detailed questions of school administrators can help ensure that the current pandemic doesn’t lead to a long-term erosion in the rights of students, and of us all.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project