UPDATE (7/27/21): The ACLU and ACLU of Texas filed a new amicus brief arguing for robust constitutional limits on searches and seizures of smartphones and computers. In this case, United States v. Morton, pending in the Fifth Circuit, investigators got a warrant to search a man’s cell phone merely because he was allegedly in possession of drugs, and then searched the photographs on the phone. Our brief argues that the Fourth Amendment does not permit searches without a factual basis and limits investigators to looking only at categories of data where evidence could be found.

Think about all the information stored on your cell phone or computers — photos, texts, location data, and even more information generated by a multitude of apps. These tools are convenient and integral to our everyday lives. But what does that mean for our privacy rights in the digital age? Today, the Wisconsin Supreme Court hears oral arguments addressing this question, including arguments that the ACLU has presented in a series of amicus briefs.

The Wisconsin case concerns cell phone data seized by the police. During a hit-and-run investigation in 2016, a suspect, George Burch, consented to a police search of his text messages to confirm his alibi at the time of the accident. The police should have just downloaded the text messages and returned the information after the investigation ended. Instead, they downloaded the entire contents of Burch’s phone and held onto all the data. Months later, an entirely different law enforcement agency found out that police still had the information and searched it for evidence of Burch’s involvement in a murder — without getting a separate warrant or asking his permission. That search — which went well beyond the agreed upon text messages and hit-and-run investigation — led to evidence linking Burch to the murder.

If police want to lawfully access seized data for a separate investigation, at the very least they must obtain a second search warrant. Without a warrant, there is no way to ensure that the police are acting with good cause, rather than just rummaging through private data for improper reasons, or for no reason at all. Once an investigation is over, the police are required to return or delete information seized.

The ACLU has been fighting unconstitutional search and seizure practices by law enforcement for years. In 2015, we filed an amicus brief in United States v. Ganias, a case in the Second Circuit Court of Appeals concerning the FBI’s retention of electronic records seized in a fraud investigation, which it held onto and later searched to investigate a different fraud suspect over two years later. While a panel of judges agreed with us that the retention of this data was unconstitutional, the full Second Circuit did not rule on this particular legal question, and the problem persists.

In 2014, we filed an amicus brief in United States v. Hasbajrami, a case involving warrantless foreign intelligence surveillance. In that case, the Second Circuit issued an opinion holding that subsequent querying of stored information may, depending on the circumstances, be regulated by the Fourth Amendment and require a warrant.

In the past year, we’ve filed two other amicus briefs in state Supreme Courts on the same issue — in these cases, as in Burch, police didn’t bother to get a second warrant.

In State of Michigan v. Hughes, police seized the defendant’s cell phones in conjunction with a drug trafficking offense to which he pleaded guilty. The defendant was also suspected of armed robbery. A jury hung failed to convict him not once but twice. Unsatisfied, at the third trial, the prosecution introduced evidence obtained by searching the cell phones for evidence of the robbery, a crime for which they did not have a warrant.

In State of Illinois v. McCavitt, law enforcement obtained a search warrant to investigate a police officer for several crimes against a single victim. Eight months later, the officer was acquitted. The next day, law enforcement — still in possession of the defendant’s hard drive under the first warrant — conducted a new search of the hard drive data, hoping to find evidence of different crimes against additional victims.

As these three state Supreme Court cases illustrate, courts are starting to scrutinize broad, free-wheeling searches of the libraries’ worth of sensitive, private information stored on our electronic devices. None of them have ruled yet. But our briefs explain that the Fourth Amendment can and must effectively limit searches and seizures in the digital age, preventing the founders’ reviled “general search” — rummaging through private data for any or no cause and without judicial oversight. Nor should our private information stay in government hands forever. At some point, the constitutional requirement of reasonableness means that our documents, photos, and messages get returned or deleted.

The government should not take advantage of its investigatory powers to build permanent digital dossiers just in case. To retain this information is a moral hazard, putting privacy and other civil rights and civil liberties at risk of an all-seeing government eye.

For more than a century, the ACLU has been on the frontlines advancing civil liberties and civil rights. This has meant not only defending rights for all but taking bold positions in order to help America live up to her own ideals — a reality that is better than where we are, and one that is never finished. For over 100 years, this aspiration of a more perfect union has been our story.

Today, we are focused on a new chapter of that story: one where we’ve turned our attention inward to our own culture and systems to evolve as an organization that is reflecting internally the ambitions we have set externally.

Since 2016, the national headquarters of the ACLU has grown by nearly 80 percent in our staff population alone. In summer 2020, we took a census of our employee population and found that 11.6 percent of staff identify as Black/African American, which puts us above the labor market and census data average—but we can do better.

With our staff growth comes a renewed call to action. As the ACLU continues to expand, we have a responsibility to scale our diversity, equity, and inclusion initiatives to increase pathways to employment, strengthen our culture of belonging, and enhance our professional development commitments to underrepresented staff in particular.

That’s why we’re eager to share a bit of this next chapter in the ACLU’s work. Last month, we launched our Systemic Equality Initiative calling on the Biden administration and the country to reckon with systems of structural racism that Black and Indigenous people in this country have experienced over generations.

Joining with the Robin Hood Foundation and other prominent companies and organizations on the NinetyToZero pledge, which ensures needle-moving actions to advance racial equity by growing Black talent and investing in Black businesses, we are committing ourselves to a transformative vision for equity within our organization. We start with establishing a baseline. By 2025, the National ACLU is committed to the goal of achieving and sustaining 16 percent Black staff representation at every level of our organization.

Like many organizations, the ACLU has been engaged in ongoing work to dismantle systems of power and oppression to create lasting, meaningful change. We recognize that systemic racism pervades every aspect of life, from interactions with law enforcement, to access to housing and capital, to health care and education—as well as the workplace.

Nonprofits, NGOs, and mission-driven organizations everywhere are not removed or exempt from the power dynamics in workplaces across the country. But we believe we have a responsibility to build—with humility and vision—an organization that is more perfect than the sum of its parts. Creating meaningful change starts with changing ourselves. While our journey has not been perfect, we know that naming this work courageously and unapologetically is the first step toward bringing others along with us.

We’re committing ourselves to this work through dedicated recruitment, pipeline and partnership building, and restorative inclusion. We are also holding ourselves accountable through robust data and measurement. Here’s how we’re approaching this work:

First, we are committing to sustained recruitment and hiring efforts from more diverse talent pools. This includes launching recruitment partnerships with historically Black colleges and universities (HBCUs), talent recruitment programs, and recruitment outreach campaigns focused on sourcing Black, Indigenous, people of color (BIPOC) applicants. We are also changing our interviewing process to meaningfully increase the number of underrepresented candidates that receive interviews for open roles through inclusive job descriptions, structured hiring trainings, and quarterly meetings with our department heads to create intentional goals.

Second, we are building new pipelines to engage and develop BIPOC candidates earlier in their careers.This year we expanded our paid national internship program by more than 50 percent to reach more interns across the country. We are undertaking specific and aggressive measures to encourage participation of members of BIPOC and other underrepresented communities to participate in our internship programs, and building an intentional pipeline with our National Advocacy Institute to engage the next generation of leaders as early as possible.In addition, next year we will be launching a new President’s Fellowship Program across ACLU departments specifically for recent college graduates from underrepresented backgrounds.

Third, we are creating initiatives to promote and retain Black leadership, and foster an equitable culture to support them. To help achieve this, we are doubling down on our efforts to provide paths for growth through progression charts and quarterly reporting of promotion data at the ACLU, and are posting senior leadership roles internally as well as externally. In addition, we are creating internal professional development programs and external resources for underrepresented staff to grow and advance in their roles. This includes intentional mentorship and sponsorship programs, which will foster relationships so that underrepresented staff have champions to elevate their work, create community, and influence and advise on organization-wide topics and practices.To support this goal, we have created proactive trainings on the ways anti-Blackness shows up in the workplace and ways we can dismantle it through bystander intervention, restorative circles, and other accountability measures.

Fourth, we are engaging Black-owned and Black-led contractors. This is an opportunity for the ACLU to leverage its significant organizational “purchasing power” to invest in businesses owned and operated by people from BIPOC and other underrepresented communities. The ACLU’s Vendor EDIB program is a key tool the ACLU can leverage to build Black wealth.

Fifth, we are partnering with Black-owned financial institutions and businesses.This initiative will ensure that we’re utilizing the financial resources of the ACLU and distributing them more equitably and sustainably. We’re investigating how we can use our capital and assets and invest them with Black banks—building up that wealth in Black communities beyond the ACLU.

In all of these efforts, we are committed to robust measurement and accountability to assess our efficacy. Our people analytics team within our HR department will track ACLU hiring, promotion, and attrition data quarterly and report out annually to the entire organization.This data will hold us accountable and ensure that we walk the walk, not just talk the talk, when it comes to these efforts and initiatives. The future of the ACLU, and every success we have, hinges on our ability to develop, foster, and sustain a workplace of racial equity, economic justice, and transformative inclusion.