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

As a direct result of the immense courage of our clients and three years of litigation, the Trump administration has officially abandoned its policy of preventing young immigrants in its custody from accessing abortion care. Yesterday, the administration adopted a new policy that prohibits Office of Refugee Resettlement (ORR) staff and staff employed by any ORR-funded shelter from blocking or interfering with unaccompanied pregnant minors’ access to abortion. ORR’s adoption of this new policy was a condition of our agreement to dismiss our case, which we have done today.

It was three years ago that our heroic client Jane Doe — who at the time was 17 and was seeking refuge in the United States on her own — took on the Trump administration. In September 2017, we learned that ORR was trying to stop Ms. Doe from having an abortion through her fierce guardian ad litem, Rochelle Garza, and Texas-based Jane’s Due Process. 

Pursuant to the orders of then-ORR Director Scott Lloyd, Ms. Doe was effectively held hostage in the shelter where she was residing for over a month. The federal government prevented her from leaving the shelter to attend any abortion-related appointments; forced her to undergo a medically unnecessary ultrasound and to receive religious “counseling” from an anti-abortion crisis pregnancy center, where they also prayed over her; and she was kept under intensive surveillance. Lloyd also instructed staffers to inform Jane Doe’s parents of her pregnancy and abortion request against Ms. Doe’s express wishes, and despite the fact that she had already obtained a court order permitting her to proceed with her abortion without involving her parents.

We rushed into court on behalf of Ms. Doe, and after weeks of court battles, obtained a court order allowing her to access abortion. Since then, we have fought alongside Ms. Doe and on behalf of our other plaintiffs, Jane Poe, Jane Roe and Jane Moe, who were also subjected to ORR’s coercive, anti-abortion tactics, to stop the federal government from commandeering the reproductive decisions of all young immigrants in its custody. Today, we are able to proudly declare that justice has finally been served.

Our success is especially meaningful for Ms. Doe, who fearlessly represented hundreds of others to ensure that what happened to her would never happen to anyone else. In response to our victory, she said, “I am happy to know that my fight means that other young women like me will be able to make the decision about whether to become a parent for themselves.”

We are certainly taking a moment to celebrate, but the fight for Ms. Doe’s vision of “reproductive freedom for all” is far from over — including for others currently in immigration detention. Indeed, the recent allegations from the Irwin County Detention Center that a government-contracted doctor performed unwarranted gynecological procedures on women in ICE detention are very disturbing, especially in light of our country’s long history of forcibly sterilizing Black and Brown people. These reports follow
years of reproductive abuse by this administration of those in immigration detention.
       
In states across the country, the right to reproductive freedom is also in peril. Anti-abortion politicians have not slowed down, even during a global pandemic. Many states tried to weaponize the COVID-19 crisis to prohibit abortion under the guise of protecting public health, a terrifying preview of what would happen if Roe v. Wade were overturned. And with the devastating passing of Justice Ruth Bader Ginsburg, the balance of the Supreme Court could soon be shifted against the constitutional right to abortion. In light of President Trump’s vow to only appoint justices that would overturn Roe v. Wade, it is no exaggeration to say that the future of legal abortion is at stake.

So, we celebrate with one eye on the Supreme Court, and the other on the road ahead. We’ll continue to fight for access to reproductive health care for people in federal custody and beyond to ensure that the Jane Doe’s victory does not become hollow and her vision for the future is realized: that all people are able to access reproductive health care, including abortion, without obstacles, shame, or stigma.

Brigitte Amiri, Deputy Director, ACLU Reproductive Freedom Project,
& Meagan Burrows, Staff Attorney, ACLU Reproductive Freedom Project

George Washington University law student Dorea K. Batté saw the texts, missed calls, and voicemails pour into her phone by the hundreds. When she blocked the number they were coming from, her stalker found a way to use different numbers to contact her. She kept blocking the numbers; he kept reaching her using new ones. Feeling helpless and overwhelmed and after warning her stalker twice to stop contacting her — to no avail — Batté finally went to her law school’s Title IX office to get help. As a reminder, Title IX is the federal law that prohibits sex discrimination — including sexual harassment — in education.

Batté wasn’t trying to get anyone in trouble; she just wanted the harassment to stop. So when her school offered a non‑disciplinary solution to her Title IX complaint — a mutual no-contact order, where neither student could interact with the other — she gladly accepted.

The order was informal, requiring nothing more than agreement by both parties. It involved no disciplinary proceedings and no disciplinary findings. Batté was assured that the “administrative order” did not go into her academic record or appear otherwise in anything that would show up in a background check. The no-contact order worked: Batté had no further problems with the other student.

Unfortunately, the same can’t be said for Batté’s interactions with GW. After applying for admission to practice as an attorney in 2020, Batté learned the university reported to the D.C. Bar that Batté had a disciplinary record: the no-contact order that she had sought to continue her legal education harassment‑free. Suddenly, Batté’s bar admission was in jeopardy, given the “character and fitness” portion of the process. The university also put a hold on releasing Batté’s transcript.

University administrators declined to fix the problem they created — and one they had promised Batté wouldn’t happen from the start. Instead a GW administrator admitted that she “understood how the complaint started.” Yet she remarkably stood by her bar report, only telling Batté that she was free to “provide whatever explanation you believe to be appropriate to the D.C. Bar.” Batté was shocked that her law school had effectively recast her as a wrongdoer for doing nothing more than trying to continue her education free from harassment.

Only when the ACLU of the District of Columbia got involved did GW finally write to the bar to clarify that a no-contact order is not a “disciplinary” action — not for students accused of wrongdoing, who have yet to go through a fair investigative process, and most certainly not for complainants, who have been accused of no wrongdoing at all.

Despite this seemingly happy ending, Batté’s experience continues to present a cautionary tale. When the ACLU-D.C. asked GW to reform its reporting process to prevent future students from suffering adverse consequences for invoking Title IX, the school would not commit. In a recent story about Batté’s experience, a GW spokesperson told a reporter, “Mutual no-contact orders are not disciplinary actions, they are not reported to third parties as disciplinary actions, and they are not listed as a sanction on university conduct records.” This was news to us.

It is unclear whether this isolated statement, given in response to a media request and unaccompanied by any formal policy document, represents a concrete change in GW policy or an empty talking point in response to negative publicity. Accordingly, future Title IX complainants or respondents could suffer the same consequences for agreeing to what they were led to believe was a non-disciplinary course of action. There is no telling how many students at GW — and at an untold number of other schools — are still saddled with undeserved disciplinary records for trying to have a harassment-free education.

The new Title IX regulations released by the U.S. Department of Education in May of this year — which went into effect last month — place a heavy emphasis on the availability of supportive measures for complainants and respondents alike. The rule touts mutual no-contact orders as one possible supportive measure that, depending on the circumstances, may be used as an accommodation that does not punish the respondent. But if schools use mutual no-contact orders to punish the complaining student, it will not only fail as an accommodation; it will also chill complainants from reporting harassment at all.

While the ACLU and ACLU-D.C. take issue with several key parts of the new rule — and in fact the ACLU has brought a challenge to those provisions in court — we agree with the DOE that access to supportive measures is of utmost importance for many survivors. However, these supportive measures can’t be used to penalize complainants for invoking their civil rights under Title IX — which is exactly what GW’s policy does.  
Policies and practices like GW’s serve a retaliatory function that flies in the face of the purpose of Title IX — a law meant to ensure students’ equal access to education, regardless of their sex. Protocols like GW’s chill students from reporting sexual harassment. In turn, survivors who are unable to access needed accommodations and formal investigatory mechanisms suffer psychologically and academically.

The fact that schools punish survivors for experiencing and reporting sexual harassment and assault is tragically
not new. The problem is particularly common and devastating for Black women and girls, who are more likely than their white peers to be punished when seeking school support. Because of insidious racial and sex stereotypes, school administrators more often minimize Black survivors’ harms and assign them blame for the misconduct reported. These reactions exacerbate the already severe underreporting of gender-based harassment and violence.

Parts of the new Title IX regulations already serve as major deterrents from seeking help for students who have experienced sexual harassment and assault. Schools should take care not to impose additional roadblocks to students’ access to education by recasting seeking assistance as misconduct.
GW and all schools should publicly commit and memorialize in writing that they will not report voluntary mutual no-contact orders as “disciplinary action,” or otherwise penalize their students for using their Title IX resources to receive an education free from sex discrimination.

Scott Michelman, Senior Staff Attorney, ACLU of the District of Columbia,
& Rebecca Ojserkis, Fellow, Women’s Rights Project, ACLU