This month, two newly-elected sheriffs canceled contracts with Immigration and Customs Enforcement (ICE). The sheriffs in Gwinnett County, Georgia and Charleston County, South Carolina were elected in November in part due to their campaign pledges to stop doing ICE’s bidding under a program known as 287(g). Voters in Cobb County, Georgia, also replaced a sheriff who conspired with ICE with an opponent of the 287(g) program.

These election results came after a multiracial coalition of organizations worked to build community power, elevate the voices of immigrants, and publicize the harms of a program that leads to civil rights violations, including racial profiling, and puts immigrant families at risk.

The 287(g) program compels local law enforcement agencies to conduct federal immigration enforcement, including interrogating people in jails about their immigration status and initiating the deportation process. But all too often it ends up  creating a chilling effect that dissuades immigrants from reporting crimes, seeking protection, or serving as witnesses for fear that the very agencies meant to protect them may instead try to deport them.

Law enforcement agencies with 287(g) agreements waste millions of local tax dollars on federal enforcement all while undercutting their safety mission by destroying community-law enforcement relationships and diverting attention from local priorities. As Mecklenburg County, North Carolina, Sheriff Garry McFadden noted when he ended the county’s agreement, 287(g) “erodes trust with our community and ties up critical resources that should be used to ensure public safety,” and Charleston County Sheriff Kristin Graziano criticized the program as “legal racial profiling.”

The program has created a climate of fear, as immigrants who live in 287(g) jurisdictions could end up in deportation proceedings for such “offenses” as failing to yield while turning or eating lunch outdoors. Many residents also report that they have been profiled while driving because of their race or appearance, pulled over by police pretextually — for traffic violations or no reason at all — so that police can question their immigration status.

All too often, they are left in the custody of sheriffs with egregious track records. Gwinnett County, which had the most active 287(g) program in the country, had to pay millions in settlements after a pattern of sheriff deputies wantonly assaulting detained people was revealed. The previous sheriff of Cobb County, who was the first in Georgia to sign a 287(g) agreement, oversaw over 50 jail deaths while in office; meanwhile, the former sheriff of Charleston County, the largest county in South Carolina to have a 287(g) agreement, was once arrested for assaulting a detained individual.

Sheriffs rarely face election challengers, but these sheriffs or their hand-picked successors all lost running on a pro-ICE platform, with voters resoundingly rejecting their anti-immigrant policies. Other jurisdictions that ended their contracts in recent years include Mecklenburg and Wake counties, North Carolina; Las Vegas, Nevada; Harris County, Texas; Anne Arundel County, Maryland; and Prince William County, Virginia.

While this program preceded Donald Trump, it exploded under his leadership, as former Attorneys General Bill Barr and Jeff Sessions and Trump himself pressured sheriffs to join. The Trump administration even made these contracts worse by removing expiration dates and other guardrails and dropping civil rights investigations into local law enforcement agencies, looking the other way in instances of abuse or, in Trump’s case, outright encouraging brutality. Other sheriffs, including those who said they oppose working with ICE, believed that state laws such as Florida’s SB 168 forced them to sign ICE agreements against their better judgement.

These agreements are not the only ways localities force immigrants into the deportation system, as many honor ICE detainers, or requests that local jails prolong a person’s detention past their scheduled release date so they can be detained by ICE, without a 287(g) agreement in place.

As President-elect Biden takes office, he can move to protect civil rights, public safety, and the country’s moral fabric by fulfilling his pledge to “end all” the 287(g) agreements entered into by the Trump administration and rolling back harmful immigration practices, including the use of detainers.

Termination of the program would also align with Vice President-elect Kamala Harris’ belief that 287(g) agreements weaken “trust between law enforcement and those they serve” and her vows to “end this program.” As California Attorney General, she also urged local agencies not to honor ICE detainers, noting that as a district attorney she worked with undocumented victims of crime who feared “they would be treated as the criminal” if they went to the police for help.

The immigrant detention and deportation machine, fueled by 287(g) agreements, has destroyed families, ruined lives, and worsened the COVID-19 pandemic. President-elect Biden should listen to the communities, advocates, and law enforcement officials who believe that 287(g) undermines our safety and our values and make good on his pledge to bring the program to its end.

Some dyed in the wool civil libertarians have criticized the ACLU for supporting Donald Trump’s impeachment. These critics maintain that our commitment to the First Amendment should solely trigger a defense of the president’s “free speech.” But freedom of speech poses no bar to holding a president responsible for his unfounded, bad-faith effort to subvert the results of a free and fair election.

Our board — comprised of leading lawyers and activists from every state and the District of Columbia — is a thoughtful, deliberative body of committed civil libertarians. After meetings on both Saturday and Sunday, the ACLU board unanimously passed a resolution again calling for President Trump’s impeachment, which can be found here.

We discussed at length the free speech implications of this impeachment process. We concluded that President Trump’s remarks on Jan. 6 can be considered part of a pattern of efforts to upend an election he lost. If a president’s repeated lies, illegal political pressure, and the stoking of a mob to subvert the democratic process are not an abuse of power warranting impeachment, it is difficult to know what would be.

Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this. It does not single out Trump’s speech on Jan. 6 inciting a mob, but rather identifies it as part of a pattern of “efforts to subvert and obstruct the certification results of the 2020 presidential election,” including the improper pressure placed on Georgia Secretary of State Brad Raffensperger “to ‘find’ enough votes to overturn the Georgia presidential election results and threatened Mr. Raffensperger if he failed to do so.”

The ACLU believes a president can be impeached for speech that a private citizen could not be prosecuted for.

First, proceedings to impeach and remove a president are not criminal proceedings. They specifically seek to remove the president from office. While the First Amendment would likely bar the criminal conviction of a private citizen for the president’s Jan. 6 speech, impeachment is a political remedy: to remove an executive official who has abused his office, not to convict them of a criminal offense. The Supreme Court has long held that public employees can be fired for on-the-job speech that would be fully protected from criminal prosecution. Whether the president has any First Amendment rights when speaking in his capacity as president has never been established. At a minimum, because of his role and authority, the president does not have the same freedom of speech as an ordinary citizen.

The First Amendment doesn’t protect the rights of public employees to say whatever they want when speaking in their official capacity. As a matter of law, public employees are regularly sanctioned for speech that fosters a hostile work environment. Their public position imbues their speech with more influence than the average citizen — as the saying goes, with great power comes great responsibility. It follows that President Trump doesn’t have unfettered free speech rights to subvert the results of a fair and free election. In short, a president who recklessly urged his followers to violate the law could be impeached even if an ordinary citizen could not be convicted for the same words, absent proof that his speech was intended and likely to produce imminent lawless action.

Second, impeachment proceedings do not require conviction of a crime, but a determination by the House and Senate that the president has abused his office in such a serious manner that he should be removed. “High crimes and misdemeanors” don’t have to be actual crimes or misdemeanors, and surely recklessly urging an unruly mob to intimidate members of Congress performing their constitutional duties, in order to undercut the results of a free and fair election, is sufficient.

No organization or individual has more consistently stood up for the free speech rights of individuals than the ACLU. From our defense of labor activists’ speech in the 1920s and 1930s, to Skokie, to Charlottesville, to our defense of BLM protesters, to the student free speech case the Supreme Court agreed to hear just last week, my organization steadfastly defends the First Amendment rights of individuals, no matter the popularity of their speech.

Part of that legacy is our landmark Supreme Court case, Brandenburg v. Ohio, which established First Amendment protections in the context of criminal prosecution for incitement of violence. That case ruled that even explicit advocacy of criminal activity is protected unless the individual’s speech is intended and likely to produce imminent lawless action. As proud (and protective) as we are of our Brandenburg precedent, we don’t believe that case should stand in the way of impeaching Donald Trump.

This civil libertarian can sleep well at night knowing that the First Amendment can be preserved, and Donald Trump can be impeached. In these hyper-partisan times, it is no surprise that leading critics of the ACLU might wish to deride us for allegedly sacrificing our commitment to the First Amendment in favor of punching down at an increasingly unpopular president. But as is reflected in our board’s thoughtful second call for Trump’s impeachment, our allegiance has always been, and remains, with the Constitution.

I also sleep soundly because I fundamentally believe that our society is finally grappling with complicated issues of race, rights, and freedoms that it long overlooked or took for granted. Recent debates about Twitter’s barring of Trump permanently, the racially disparate treatment of BLM protestors and white supremacist insurrectionists by law enforcement, and the impeachment of President Trump have led to a soul-searching debate that will make this country better and stronger in the long run. Indeed, Donald Trump’s most lasting legacy may be that he catalyzed a “resistance” movement that will transform into a deeper commitment to social justice and constitutional norms. It is this invigorated movement that will shape the work of the next administration.

Good night and good bye, President Trump.

Secretly, and without consent, a company called Clearview AI has captured billions of faceprints from people’s online photos, amassing what it claims to be the world’s largest face recognition database. Much like our fingerprints and DNA profiles, our faceprints rely on permanent, unique facts about our bodies — like the distance between our eyes and noses or the shape of our cheekbones — to identify us.

Using our faceprints, Clearview offers its customers the ability to secretly target and identify any of us, and then to track us — whether we’re going to a protest, a religious service, a doctor, or all of the above — and even to reach back in time to find us in old selfies, school and college photos, and videos. In other words, it might end privacy as we know it. It also threatens our security and puts us at greater risk of identity theft by maintaining a massive biometric database, akin to a secret warehouse of housekeys.

Clearview’s nonconsensual capture of our faceprints is dangerous. It is also illegal in at least one state.

In May of last year, we sued Clearview for violating Illinois’ Biometric Information Privacy Act (BIPA), a state law that prohibits capturing individuals’ biometric identifiers, like face and fingerprints, without notice and consent. We represent a group of organizations whose members and service recipients stand to suffer particularly acute harms from nonconsensual faceprinting and surveillance: survivors of domestic violence and sexual assault, undocumented immigrants, current and former sex workers, and individuals who regularly exercise their constitutional rights to protest and access reproductive health care services.

Notwithstanding these harms, Clearview asked the court to dismiss our case, arguing, in part, that the company has a First Amendment right to capture our faceprints without our consent.

As advocates for both free speech and privacy, we take this objection seriously — and we strongly disagree. As we explained to the court previously and again this week, Clearview’s view is at odds with long-established First Amendment doctrine, and could spell the end of privacy and information security laws if accepted.

Clearview argues that, to create its face recognition product, it gathers publicly-available photographs from across the internet and then uses them to run a search engine that simply expresses Clearview’s opinion about who appears to be in the photos. Clearview claims that, like a search engine, it has a First Amendment right to disseminate information that is already available online.

But our lawsuit doesn’t challenge — and BIPA doesn’t prohibit — Clearview’s gathering or republishing photographs from across the internet, or expressing its views about who appears in those photos. Clearview is free to discuss or disseminate photographs it finds online. What it can’t do under Illinois law is capture people’s faceprints from those photographs without notice and consent. That is a distinct action, which can cause grave harms.

Accepting Clearview’s argument to the contrary would mean agreeing that collecting fingerprints from public places, generating DNA profiles from skin cells shed in public, or deciphering a private password from asterisks shown on a public login screen are all fully protected speech. And it would depart from decades of judicial precedent permitting laws banning wiretapping, stealing documents, or breaking into a home — all acts that become legal if done with consent — even when that conduct might generate or capture newsworthy information. In other words, the fact that a burglar intends to publish documents they steal doesn’t mean the burglary is protected by the First Amendment. Likewise, the fact that Clearview intends to disseminate people’s photos after capturing faceprints from them doesn’t mean the company has a constitutional right to capture the faceprints without consent.

At the same time, BIPA does have an incidental effect on the speech Clearview seeks to engage in after capturing a faceprint, and so the law is subject to some First Amendment scrutiny. In United States v. O’Brien, the Supreme Court explained that regulations of conduct that have an incidental effect on speech are subject to so-called “intermediate scrutiny.” That means that the First Amendment is satisfied as long as (1) the government has the power to enact the regulation in the first place, and (2) the regulation furthers an important government interest that (3) isn’t related to suppressing free expression, and (4) burdens speech no more than it necessary to further the government’s interest.

BIPA — and its application to Clearview in our lawsuit — satisfies that test.

First, Illinois has the power to pass a law like BIPA, which is designed to protect its residents against irreparable privacy harms and identity theft.
Second, BIPA’s notice-and-consent requirement furthers the state’s substantial interests in privacy and security. Our faceprints can be used to track us across physical locations, photographs, and videos, painting a complete picture of our lives and associations. This threat of surveillance also chills our speech. And, because biometric identifiers are often used to enable access to secure locations and information — like the face recognition feature on our phones or the fingerprint scan to enter our offices — the capture of our faceprints without our notice and consent poses security risks.

These dangers aren’t hypothetical. In recent months, government actors have relied on faceprint technology to identify and track protesters in cities and on college campuses, and such technology has resulted in at least two false arrests in Michigan and at least one in New Jersey. Clearview AI has contemplated providing its technology to a “pro-white” Republican candidate to conduct “extreme opposition research,” and it has given access to more than 200 companies, as well as celebrities and wealthy businesspeople, to use as they would like, including to identify who their children are dating. Recently, it entered into a contract with Immigration and Customs Enforcement. And, in the last year, it suffered a data breach (though thankfully not of its faceprint database).

Third, Illinois’ interest in BIPA’s notice-and-consent requirement is not about silencing or limiting speech. BIPA does not prevent anyone, including Clearview, from discussing the topic of identity or from expressing an opinion about who appears to be in a photograph, regardless of what that opinion may be. Indeed, even if Clearview didn’t speak at all, and simply captured faceprints that it kept in a massive, insecure database, it would violate BIPA. BIPA is not a regulation of speech.

Finally, BIPA’s notice-and-consent requirement is sufficiently tailored to Illinois’ substantial interests in protecting privacy, security, and speech. The problem BIPA seeks to solve is individuals’ lack of knowledge about and control over the capture of their biometric identifiers — and requiring notice and consent perfectly solves it. At the same time, the law doesn’t restrict more speech than necessary because it doesn’t ban the use of faceprints; it simply requires consent first.  

If Clearview’s position prevails, states will be powerless to enact protections against violations of privacy that involve data. But that is a dangerous misreading of the First Amendment. Reasonable notice-and-consent laws governing conduct, like BIPA, simply do not violate the First Amendment.