This week, the presidential candidates will face off in their first debate of the general election. Voters will hear Donald Trump and Joe Biden talk about their views on the COVID-19 pandemic, the economy, and the Supreme Court vacancy created by the untimely passing of ACLU alumna Ruth Bader Ginsburg. The ACLU and our supporters will be listening closely for how their answers relate to key civil liberties issues, including racial justice and reproductive freedom, just as we have throughout the presidential campaign.

This cycle, the ACLU has gotten involved in the presidential campaign in a serious way for the first time. During the primaries and caucuses, our volunteers spread across the early states to get commitments (on camera) from the candidates of both parties, on issues like access to abortion and immigrants’ rights. In fact, it was our volunteer, Nina Grey, who secured the all-important commitment from Joe Biden to end the Hyde Amendment, which has blocked access to reproductive health care to low income individuals for decades. 

Now, as we enter the thick of the general election, we’re not backing down. Instead, we’re making sure every voter understands the civil liberties issues at stake, and knows how they can safely and effectively exercise their right to vote. Our message to voters: Vote like your rights depend on it.

In Michigan, we’ve launched a voter turnout campaign for the Presidential election, to build on the success of last cycle’s Proposition 3 Promote the Vote ballot initiative, which brought no-excuse absentee voting and same day voter registration to the state. We are ensuring that voters — particularly Black Michiganders, young people, and other populations positioned to benefit from the ballot measure — are educated on their rights and options, and encouraged to get to the polls. We are running a parallel voter turnout program in the other important presidential battleground of Wisconsin.

We are also continuing our commitment to down-ballot races that often have the greatest impact on policies and practices that affect civil rights. Our focus on hyper-local races, like sheriffs and district attorneys, has brought about crucial improvements on bail reform, reductions in prison and jail populations, protections in access to abortion, and the end of immigration detention agreements with the federal government. Voters have the opportunity to usher in even more change in this vein on Nov. 3.

In the 2020 ballot measure space, we’ve made racial justice one of our top priorities for this election cycle. Our largest financial and personnel commitments have focused on three ballot referenda with strong racial justice implications. In California, the ACLU and its affiliates will invest approximately $1 million to lift a ban on affirmative action. In Oklahoma, we have spent more than $3 million to enact far-reaching criminal justice reforms that will help address racial biases and systemic inequality in the criminal legal system. In Nebraska, we’ve invested over $1 million to fight the extortionist practices of predatory payday lending institutions, which takes $28 million a year from low-income people, disproportionately people of color, in the state. Taken together and coupled with another ballot measure investments, the ACLU is flexing its political power to advance an agenda of systemic equality — one that gets at the root causes and persistent effects of systemic racism.  

We are a nonpartisan organization, and we don’t endorse or oppose particular candidates for office. But we’re involved in elections because the stakes are incredibly high for civil rights and civil liberties issues in America. The ACLU aims to educate voters about the civil liberties and civil rights records of candidates — through paid and earned media and other forms of voter communication — and encourage voters to factor those records into how they vote. At the same time, we mobilize ACLU volunteers to ensure that Americans around the country understand the potential consequences of these elections, certainly the most consequential in generations in terms of civil liberties and civil rights. Our volunteers will make millions of phone calls and send millions of text messages to voters over the course of this election. And through our new platform, Let People Vote, we’re ensuring people know how and when to vote, as well as how to get involved in their state.

The ACLU takes its nonpartisan status very seriously. We are not nonpartisan merely out of tradition or to protect our tax status; we are nonpartisan because our commitment to civil rights and civil liberties drives everything we do. We have an issue-based agenda, not a party-based one. We are nonpartisan because we have had allies from all political stripes and all political parties — and opponents, also, from all points on the political spectrum. Rather than judge politicians based on their party affiliation, we judge them on their civil liberties and civil rights records and stances. We thanked Chuck Grassley — the Republican senator from Iowa — for his leadership on the First Step Act with a full-page ad in his local newspaper. And yet, we are likely to clash horns with the same Senator Grassley for refusing to defer the confirmation process for Justice Ginsburg’s successor until after inauguration. We are an equal opportunity friend and foe, but a constant advocate for civil liberties and civil rights. When we engage in politics, we do so to highlight the issues that affect our daily work and the lives of millions of Americans.

Success for us is infusing a higher profile discussion of key civil liberties issues into elections and into voters’ calculus when casting their votes. We engage in electoral work because this is when citizens are most engaged, our issues are most salient, and voters have the greatest power to affect policy. It is also when politicians are most likely to take seriously what voters care about. Our goal is to make sure candidates know civil liberties and civil rights issues matter to voters and move the needle on key policies and practices.

We’re trying to change hearts and minds on civil liberties issues, and therefore we have short- and long-term goals. For instance, an anti-civil liberties candidate may very well win despite our best efforts to educate voters about that race, but we will have fulfilled our mission if we’re able to increase voters’ understanding and awareness of civil liberties issues.
 
We, therefore, have made and remain committed to the following assurances about our electoral work:

The ACLU will not endorse or oppose specific candidates for elected office. Our goal is to ensure that voters are educated about the potential consequences of an election, not to support specific candidates.

The ACLU will not tell people to vote for particular candidates. Educated voters can make their own decisions. The ACLU’s job is to provide voters with the information they need to know about what is at stake.

The ACLU will not coordinate with any partisan organization in electoral work. While the ACLU believes deeply in working in coalition with other nonprofits, we have no interest in partisan coordination. Our aims are different from those of a political party, and are driven by issue-based goals. (We know, for instance, gerrymandered political maps that disenfranchise voters have been drawn by both Republicans and Democrats — and we have opposed them in both instances.)

The ACLU will let civil rights and civil liberties issues drive its electoral work. The ACLU is not doing electoral work to affect the balance of political power, but to drive concrete policy outcomes that matter for people’s lives. We will choose to engage in electoral races where important civil rights and civil liberties issues are at stake. And we aim to establish a mandate for politicians to enact policies that expand rights and freedoms for all. For every election we participate in, we will be able to identify a set of concrete policies and practices that have changed because of our electoral engagement and the ultimate decision of the voters.

The ACLU will aim to educate voters about the consequences of specific elections. This could include issuing scorecards, hosting ACLU-sponsored issue-based town hall meetings, doing issue-focused radio ads or TV, mailers, billboards, or transit ads. The goal is to infuse a discussion of civil rights and civil liberties into a political race and to communicate to the public how the choice of elected officials leads to differences in policies and impacts on people’s lives.

The ACLU will urge voters to go to the polls. It does not matter how much voters understand about an election if they do not vote. In the end, the choices that people make on Election Day have great consequences. The ACLU will encourage voters to make their voices heard.

The ACLU will defend election integrity and ensure that every vote is counted, regardless of the party affiliation of the voter. In addition to our advocacy to inform and turn out voters, we engage in advocacy and litigation to ensure that every vote counts. This includes 31 lawsuits in more than 20 states, as well as pressing for laws in states like North Carolina to ensure that voters who have their mail ballots rejected have an opportunity to “cure” or fix them. With offices in each and every state, and boots on the ground in every voting jurisdiction, the ACLU is uniquely situated to ensure that every vote is counted in this critical election. 

Electoral work in this frame is a natural extension of the work we have been doing for 100 years. The ACLU has never shied away from a fight when civil liberties were at stake, whether that fight was in a courtroom, Congress or a state legislature, in the streets, or at the ballot box. We ask you to join us in this important endeavor.

Ronald Newman, National Political Director, ACLU

Paid for by American Civil Liberties Union, Inc., 125 Broad Street, New York, NY 10004, and authorized by Nebraskans for Responsible Lending.
 
Authorized and paid for by American Civil Liberties Union, Inc., 125 Broad Street, New York, NY 10004, 212-549-2500, on behalf of Yes on 805, Inc.
 
Paid for by American Civil Liberties Union, Inc. (major donor committee ID # 1259514) and authorized by Yes on 16, Opportunity for All Coalition, Sponsored by Civil Rights Organizations.

Wireless internet has become essential to modern life, enabling us to use our smartphones, tablets, and laptops as we move about in the world. Easy internet connectivity that comes from having Wi-Fi access points spread through office buildings, transit systems, parks, businesses, college campuses, and city streets is a public good. But Wi-Fi networks also collect information about when and where our devices connect to them, information that can precisely reveal our locations and movements. This is revealing data that shouldn’t carelessly end up in the hands of police.
 
That is why today, the ACLU, along with the ACLU of Pennsylvania and the Electronic Frontier Foundation, filed a friend-of-the-court brief in the Pennsylvania Supreme Court explaining why warrantless police access to people’s Wi-Fi-derived location information violates the Fourth Amendment.
 
The case, Commonwealth v. Dunkins, involves a police investigation into a 2017 robbery of marijuana and cash from a student’s dorm room on a Pennsylvania college campus. After receiving a report of the robbery, police went to the college IT department and got a list of all smartphones and other devices that were connected to the 80-90 different Wi-Fi access points spread across the residence hall around the time of the robbery. Because those access points each have a small broadcast radius, knowing which Wi-Fi access point a phone was connected to provides precise information about where that phone was.
 
Using that information, the police identified several dozen students who were in the building at the time, and then narrowed down the list to three students who lived in other dormitories. Two of those students were women, and were excluded because the suspected robbers were described as male. Police focused on the remaining student, Dunkins, and requested information about all his Wi-Fi connections on campus during a five-hour period on the night of the robbery, a detailed account of his movements over time.
 
The Wi-Fi location information was essential evidence at trial, tying Dunkins to the scene of the robbery. But it’s not hard to see how invasive the searches were for other students as well. By learning that two women were in someone else’s dorm rooms in the wee hours of the morning, police could infer private information about where they were sleeping and with whom. That’s none of the government’s business.
 
That’s why the ACLU is arguing that this sensitive location data is protected by the Fourth Amendment. And we have powerful Supreme Court precedent behind us.
 
In 2018, in an ACLU case called Carpenter v. United States, the U.S. Supreme Court ruled that police need a warrant to request a person’s historical cell phone location information from their cellular service provider. We have argued in other cases, including in a brief we filed in another Pennsylvania case last week, that the rule in Carpenter should apply to real-time cell phone tracking, automated license plate reader databases, long-term surveillance of homes with pole cameras, pervasive aerial surveillance, and requests for sensitive digital medical information. Today, we are arguing that this protection should apply to Wi-Fi-derived location information as well. Like the location information at issue in Carpenter, the data created whenever a phone connects to a Wi-Fi access point paints a detailed picture of a person’s “privacies of life,” and therefore deserves Fourth Amendment protection.
 
The prosecution argues that because Carpenter involved location information spanning days and months about one particular suspect, the shorter-term data about many people in the Dunkins case should be unprotected. But even short-term location data can reveal deeply private information about where a person goes and what they do there. And requesting information about all people who were in a particular building at a particular time will almost certainly sweep in bystanders who had nothing to do with any crime, making the search dangerously overbroad. Here, for example, two non-resident female students and their hosts were caught in the net, illustrating the privacy interests at stake.
 
The implications of the Dunkins case extend far beyond privacy on college campuses. Cities across the country, from Boston to New York to El Paso, have built free municipal Wi-Fi networks spanning significant geographic areas. Comcast has deployed “millions of hotspots” as part of its Xfinity service. On many of these networks, after a person connects their device the first time, they will automatically connect and reconnect to any Wi-Fi access point that is within range, generating a great deal of location information going back weeks, or even years.
 
Like the cell phone location data in Carpenter, Wi-Fi location information is “detailed, encyclopedic, and effortlessly compiled.” As we explain to the Pennsylvania court, it is dangerous to allow police access to this information without probable cause, narrow tailoring, and judicial supervision — in other words, police should have to get a warrant. And the Fourth Amendment might never allow a request that sweeps in precise location information about many bystanders. This case provides an important opportunity to ensure strong protections for privacy in the digital age.

Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy, and Technology Project,
& Jennifer Stisa Granick, Surveillance and Cybersecurity Counsel, ACLU Speech, Privacy, and Technology Project

This OpEd was first published in Slate.

Americans have just completed another round of one of our grimmest national rituals: shaking our heads while cops who killed an unarmed Black person get away with murder. This time the victim is Breonna Taylor, whose name has galvanized nationwide protests for racial justice, but whose family will receive no justice themselves. Yesterday, Kentucky Attorney General Daniel Cameron announced a single charge from the grand jury against only one of the three officers involved in her shooting, and even that was for shooting a wall, not Breonna Taylor. The other two will walk. And a community that has already waited six months for closure will just keep waiting.

Many are rightly pointing out that these cops should not avoid charges based on self-defense when they created the danger in the first place. Accordingly, whether the grand jury result makes sense under the criminal law will be hotly debated in the coming days. But even when there is substantial evidence of wrongdoing, police officers are almost never prosecuted, let alone convicted. And with each press conference announcing that an officer’s actions were justified, the public’s faith in the law — and in the prosecutors tasked with enforcing the law — erodes just a little bit more. Prosecutors often claim they are simply hamstrung by the law, which does confer a great deal of protection on police. But there are many actions a prosecutor can take to create lasting, systemic police accountability—if they want to maintain any credibility with the people they’re supposed to serve.

Prosecutors—both the local elected versions and Attorneys General at the state level—can and must do so much more. The work starts well before an officer causes harm.  The everyday working relationship between police and prosecutors is inherently conflicted; prosecutors rely on police for case leads and in-court testimony, and police need prosecutors to win cases and boost clearance rates.  (Sadly, trial wins and not public health outcomes are still the coin of the criminal justice realm.)  Prosecutors must institutionally separate themselves enough from police to judge them objectively.  This means refusing police union donations during their own elections.  It means mandatory reporting of cops to ethics investigators when the cops screw up.  It means putting a hard stop on lobbying in lockstep with police unions to thwart reform, as prosecutor associations so often do. 

Prosecutors who are serious about accountability should also lobby for efforts like civilian oversight of police, shrinking law enforcement—including their own offices—and reinvesting in communities.
Second, prosecutors till the ground for police violence when they ignore or actively cover up misconduct or corner-cutting in everyday cases. This happens all. The. Time. For example, right after a suspect is arrested, prosecutors have to decide whether to take the case forward or “screen” it out. A substantial number of those cases involve uncorroborated police testimony, manufactured defendant resistance, outright violence or coercion, or just plain uncertainty.  If prosecutors go along to get along, taking virtually all those cases forward (even if they drop them later), this validates predatory police tactics that ought to be discouraged. As that case moves forward, a prosecutor may also offer the defendant a deal to plead guilty to lesser charges, which then avoids judicial scrutiny of police misconduct. The prosecutor may also knowingly allow the officer to lie on the stand, a practice so common it’s got a nifty portmanteau: testilying. Don’t believe that these underhanded tactics occur? Consider that Louisville prosecutors offered Breonna’s ex-boyfriend, Jamarcus Glover, a supremely lenient plea deal if he would just implicate Breonna in an “organized crime syndicate.” This was a dirty trick to smear her name and bolster the cops’ story—and it only failed because Glover, heroically and against his own interest, turned down the deal.

These day-in, day-out violations of public trust are virtually impossible to catch, but help create the bond between police and prosecutor that makes independence so difficult. To stop it, elected prosecutors and legislators need to ratchet up the professional penalties for prosecutors who cover for their friends to the detriment of the community. And we need to create standalone legal proceedings—a sort of constitutional small claims court—for victims of police misconduct that don’t depend on the prosecutor to represent those victims.

Finally, when police do commit violence against the American people, prosecutors at the local, state, and federal levels must inflict far more fulsome, lasting accountability that is not limited to criminal prosecution.  Of course, the local prosecutor and maybe even the state AG, who all work directly with the offending cops, should be recused from any criminal investigation; this much is table stakes.  Any appointed, independent prosecutor should also consider foregoing a secret grand jury so the community can be confident that they made the strongest possible case.  (We are already seeing calls for AG Cameron to release the grand jury evidence in Breonna’s case.)

But then the state Attorney General or the US DOJ should open a mandatory civil rights investigation that results in both resignation and decertification of the individual officers plus systemic changes to the office. That settlement would also require the local prosecutors to put the officers on a standing, public list and commit not to call them to testify in any case going forward. Police chiefs and mayors often complain that union contracts and arbitration makes firing bad cops so hard. Prosecutors can and should do it for them. And they should do it regardless of whether a grand jury returns an indictment.

Of course, prosecutors won’t altruistically take on all these reforms voluntarily. These fundamental changes would make churning out convictions much more difficult, would strain their mutually beneficial relationship with the cops, and create more red tape. But that strain and that red tape is worth preventing the senseless loss of another Black life. The people marching in the streets can push both police and prosecutors to to conjure a vision of justice broader and deeper than criminal prosecution.  Breonna Taylor deserves it.  We all do.

Somil Trivedi, Senior Staff Attorney, ACLU Criminal Law Reform Project