On January 12, a tornado tore across central Alabama, including the historic city of Selma. Since then, community groups have been clearing roads and picking up the pieces from the damage. Simultaneously, the city is preparing for its annual Bridge Crossing Jubilee: a recognition of Bloody Sunday, the Selma-to-Montgomery march, and the passage of the Voting Rights Act.

As the ACLU of Alabama prepares for our annual trip to Selma to commemorate the historic bridge crossing on March 5, amidst such devastation in the city, I feel the immense tradition and history of Selma, a place where our elders accomplished so much to make voting rights possible. 58 years after the historic movement that led to the 1965 enactment of the Voting Rights Act (VRA) and the legal enfranchisement of Black voters, I remain struck by the duality of what voting rights in Alabama has meant for this nation.

We’re approaching the 10th anniversary of Shelby v. Holder, which stripped the VRA of preclearance and now we await the decision of Milligan v. Merrill which could possibly strip the vehicle of accountability for voter access and representation through Section 2. By the time we reach the 60th anniversary of the Selma Bridge crossing, we may very well be commemorating something that has less power as a federal protection and can no longer ensure our access to the ballot.

What I find most challenging in these times are the attempts by state legislators in Alabama and throughout the South to further disenfranchise Black Southerners. Legislation such as HB 7 in Alabama, which prohibits state agencies, local school boards, and public institutions of higher education from promoting, endorsing, or affirming certain divisive concepts related to race, sex, and religion. This type of bill threatens to erase the history of activism and protest that made voting possible.

Additionally, states such as Mississippi are battling legislation like HB 1020, a move to take voting power, political power, and tax revenue away from the majority Black citizens of Jackson. The legislation illegally empowers Judges appointed by the Chief Justice of the Mississippi Supreme Court and prosecutors appointed by the state attorney general to oversee criminal and civil cases in Jackson.

The efforts to codify white supremacy in 2023 are not surprising. We are seeing these attempts regionally and nationwide. Still, I remain hopeful for the vision ahead and the shoulders we stand on.

The attempt to dismantle the Voting Rights Act piece-by-piece will not stop the much longer march toward justice. Our right to vote has never been solely advocated for by the courts, nor by Congress. The right to vote was fought for by the people. The fight came from communities that cared about their future. The fight came from people that didn’t accept brokenness. Our communities then, and now, understand that the fight to uphold our civil rights is a daily pursuit.

This fight beckons us to be arm-in-arm, to lean on one another, to organize with our neighbors, and to see that our future is one of hope. One where we demand equal access and resources for all.

A heated controversy over audio recording in Green Bay, Wisconsin has resurfaced an important privacy issue that we have been monitoring for years: the placement of surveillance microphones in public places. When it emerged that live microphones had been installed in public hallways as part of the security system in city hall, a number of politicians objected, including a city alderperson and members of the Wisconsin State Senate, who subsequently filed a lawsuit. City officials, meanwhile, defended the mics.

Similar deployments have come to light in the district attorney’s office in Nashville, and the city clerk’s office in East Providence, Rhode Island. The deployment of surveillance microphones in this manner needs to stop.

Audio surveillance can be significantly more intrusive than video surveillance. If you’re walking down the street talking about wild times with an old friend, the video will probably be quite boring — just two people walking down the street — but the audio could be compromising indeed.

And this kind of recording is legally problematic. Laws in all the states, as well as federal law, make it illegal to record a conversation where the recording party is not a participant — and some state laws require the permission of all participants in a conversation. This is why, even though surveillance cameras have become commonplace in American public spaces, very few of them include microphones.

Ethan Ace, an expert at the surveillance research company IPVM, told me that surveillance cameras are rarely installed with working microphones outside of special places like police interrogation rooms, and when they are, those microphones are rarely activated. In addition, the built-in mics that a minority of professional surveillance cameras include are typically inadequate for audio surveillance; where such surveillance is desired, purpose-specific microphones typically have to be installed. This is what was done in Green Bay, as well as in Nashville, where the system installer told the television station WTVF, “We don’t put audio on a camera unless they specifically ask for it.” The audio surveillance in these cities was not an afterthought.

Most state wiretapping laws only forbid recording where people have a “reasonable expectation of privacy.” Police carrying out their duties in public, for example, have tried to use these laws to stop people from recording them with their phones, but the courts have shot that down. Defenders of microphones in public places have tried to argue that because people are in a public place, they have no such reasonable expectation. It’s not entirely clear what the legal lines are here as the jurisprudence is limited. Surely, though, under any commonsense definition of the phrase, two people talking political strategy in a deserted hallway at 1:00 in the morning with nobody else around should be able to “reasonably expect” that their conversation isn’t being recorded. In Green Bay, in fact, a local TV station obtained recordings from the city hall and reported that “At the end of the hallway, we could clearly hear … personal conversations between individuals discussing medical issues.”

The purpose and intent of our wiretapping laws comes from a recognition that technology makes it possible for us to be overheard through small, often invisible devices even when no other humans are around, which has the potential for enormous disruption and abuse. Does anybody want to live in a country where we have to constantly look around us wondering whether there’s a live mic picking up what we’re saying?

Under the logic of “you have no privacy in public places,” the government could string hidden microphones throughout our national parks, and if you’re hiking through the wilderness alone with a lover or a friend, it would be totally legitimate for you to be recorded. But in a place like a city hall or district attorney’s office, sites of perpetual political, legal, and personal dramas, there are certainly more urgently private conversations than in the average public space. And there would also be more incentives in those places to eavesdrop on such conversations.

There are also significant questions about the security rationale for putting mics in public places. What, exactly, are the circumstances when audio surveillance proves important in providing security? Anybody can come up with movie-plot scenarios, but how serious are those situations, how frequently do they arise, and how crucial are audio recordings when they do? If somebody starts becoming disruptive and verbally abusive, for example, anybody present is free to take out their cellphone and start recording the situation — the ACLU has defended people’s right to do just that in numerous cases from across the country. How much does a ceiling microphone, recording 24/7 including when few people are around, really help security in such a situation?

Obviously, there are plenty of spaces in a building like a city hall where it’s legitimate for recording to take place. City council meetings or other public events are often recorded and broadcast, and such chambers often contain microphones (though even there they shouldn’t be turned on unless, through context or sign, that is obvious to everyone). Reporters interview people. But context is everything, and blanket audio surveillance is legally problematic, susceptible to abuse, and something that no rational American should want to become widespread.

One year ago, transgender people and our families reacted in horror as Texas Gov. Greg Abbott directed the state’s family policing agency, the Texas Department of Family Protective Services (DFPS), to begin investigating parents with transgender teens. This directive threatened a vulnerable group of young people with being removed from their parent’s custody and put into the state’s overcrowded and deeply problematic foster care system.

The move by Abbott was a stark escalation in the ongoing fight to erase transgender people from public life and prompted outrage from across the state and the country. District attorneys from across Texas said they would refuse to pursue prosecutions against these families, and educators, health care providers, and child welfare experts roundly condemned the directive. DFPS, already facing thousands of resignations, saw another exodus of employees after the announcement.

In the year since, the ACLU, the ACLU of Texas, and Lambda Legal filed two legal challenges against the directive and the investigations. Those challenges sought to protect Texas families and transgender teens by blocking the state from enforcing the governor’s order against them.

The first, Doe v. Abbott, was filed on behalf of an employee at DFPS, her husband, and their transgender teen, as well as a psychologist who provides mental health services and support to transgender youth. The state opened an investigation into Jane Doe and her family almost immediately after the governor issued his directive. Jane was reported and investigated by her own employer and placed on administrative leave as her family feared their child being ripped away from them. On March 11, 2022, a state court found the governor’s directive held no legal weight and blocked the state from investigating our plaintiffs. The Texas Supreme Court later affirmed both points while narrowing the relief to the specific parties in the case.

American Civil Liberties Union

Doe v. Abbott | American Civil Liberties Union

 

A second lawsuit was filed in June 2022 on behalf of three additional families with transgender youth and PFLAG National, which provides peer support, education, and advocacy for LGBTQ+ people and their parents, guardians, and allies. A Texas state court granted relief for all three families targeted by DFPS — and expanded that relief to cover PFLAG’s 17 chapters and 600 members statewide in September 2022.

Court orders blocking investigations into PFLAG members are still in effect while these cases continue on appeal with a trial scheduled for the fall.

While both cases are ongoing, the state continues to persecute transgender youth and their families under Abbott’s directive. Transgender students are being pulled from classrooms and interrogated about their health care and other personal information. Teachers are stalking social media for evidence a student might be trans and turning their families into DFPS. Many families are even making the difficult and arduous choice to relocate their lives outside of Texas altogether, finding new homes, jobs, and schools for themselves and their loved ones. All of this comes at a time when Texas lawmakers have introduced a record number of anti-LGBTQ+ bills, with the vast majority targeted at transgender youth.

This targeting of supportive parents of transgender youth by an agency meant to protect children shocked many across the country. But in truth, agencies like DFPS already threaten Black, immigrant, Indigenous, and low-income families across the country.

As a joint report by the ACLU and Human Rights Watch recently found, conditions of poverty, such as a family’s struggle to pay rent or maintain housing, are often misconstrued by these agencies as neglect and interpreted as evidence of an inability and lack of fitness to parent. This results in over half of Black families becoming the target of a family policing investigation. LGBTQ+ youth are already overrepresented in the nation’s foster care system, where they are more likely to experience abuse and be forced through conversion therapy that attempts to “make” them cisgender and heterosexual.

Abbott’s directive represented the expansion of both a political war on transgender youth and the mandate of a family policing system that already endangers families and youth alike. The best way to avoid future attempts to weaponize these agencies for explicitly political purposes is to prevent their abuses altogether, including by fighting for fundamental changes to how states approach child welfare. Our legal advocates will continue our challenge against this directive. At the same time, we urge lawmakers to take immediate measures to strengthen and support families and communities to prevent child maltreatment without subjecting them to surveillance and regulation.

In Texas, the state legislature has introduced a slate of bills attempting to criminalize essential health care for transgender youth and the families and doctors who support them. Texas residents can sign up to take action against these proposed bans and many more bills threatening the fundamental rights of transgender Texans. If you or someone you know needs information and resources for transgender young people in Texas, please visit txtranskids.org to learn more about your rights, how to get legal help, and how to defend yourself against this lawless incursion into your family’s life.