Liberty and equality are everywhere under attack. And that’s why the work of the American Civil Liberties Union feels more precious to us than ever before. The ACLU lawyers and staff are the brave souls who suit up, blast off, and do what they can to divert and repel all those incoming meteors, or blow them right out of the sky. We admire them. We admire them the way you must admire people who devote themselves to doing, to the utmost of their ability, any thankless, impossible, and absolutely essential job.

Liberty and justice for all. We used to stand up with our classmates every morning and timelessly pledge liberty and justice for all, even and especially for those (as the Supreme Court, agreeing with the ACLU, ruled in West Virginia State Board of Education v. Barnette) whose consciences rebel at being compelled to pledge allegiance to a flag or to a country “under God.” The Bill of Rights protects pledgers and nonpledgers alike, but of course it is only the nonpledgers—the contrarians, the cranks, the nonconformists, the radicals and fanatics, the outsiders and the ostracized, the powerless and unpopular and imprisoned—who ever really need its protections. They also tend to be the ones least likely to receive those protections—not without a fight, anyway. That’s where the ACLU comes in.

The history of the ACLU is one of struggle, combat, of marginalized people and unpopular causes, of troublemakers and conscientious objectors, a history of battle and strife. But it is also the history of the very best our country has to offer to its citizens and, by way of example, to the rest of the world: the strong, golden strand of the Bill of Rights and the ideals it embodies, often frayed, occasionally snarled, stretched at times to the breaking point, but shining and unbroken down all the years since 1789. The ACLU holds the government, the courts, and the nation to their avowed and highest standard, insisting on the recognition of the protections the Constitution affords to every American, no matter how marginalized, no matter how unpopular the cause, even if the people it protects sometimes despise the freedom it represents.

As American Jews in our fifties, we both remember, powerfully, the moment we each first understood the austere and lonely fight of the ACLU, the thankless road to freedom on which it plies its trade. It was 1977, when the ACLU took on the case of the local branch of the American National Socialist Party, whose members wanted to hold a march along the main street of Skokie, a predominantly Jewish suburb outside Chicago. We remember wrestling with the difficult idea that the ACLU could be on the side of good (the First Amendment) and evil (Nazis) at the same time. To understand the vital role that the ACLU plays in American society requires a nuanced understanding of the absolute value of freedom of speech, freedom of assembly, freedom from unwarranted search and seizure, of the right to due process and equal justice under the law, even—again, especially—when those rights protect people we find abhorrent or speech that offends us.

Nuance unfortunately seems to be in very short supply nowadays. In the pages of Fight of the Century: Writers Reflect on 100 Years of Landmark ACLU Cases, we have collected essays by some of our country’s finest writers (ranging from Marlon James and Ann Pachett to Elizabeth Strout and Viet Thanh Nguyen, and many more)—not just because writers are and have long been among the principal beneficiaries and guardians of the First Amendment but also because they traffic, by temperament and trade, in nuance and its elucidation, in ambiguity and shades of gray. We turn to writers, here and in general, to help us understand and, even more, grasp both ends of ambiguities, to expand the scope of our vision to encompass the whole gray spectrum of human existence, in all its messy human detail.

Enjoy.

Ayelet Waldman, Author,
& Michael Chabon, Author

This piece originally appeared on Fast Company.

In 2019, we proved face recognition surveillance isn’t inevitable. Now, it’s time for Congress to rein in the technology once and for all.

Last year, communities banded together to prove that they can — and will — defend their privacy rights. As part of ACLU-led campaigns, three California cities — San Francisco, Berkeley, and Oakland — as well as three Massachusetts municipalities — Somerville, Northhampton, and Brookline — banned the government’s use of face recognition from their communities. Following another ACLU effort, the state of California blocked police body cam use of the technology — forcing San Diego’s police department to shutter its massive face surveillance flop. And in New York City, tenants successfully fended off their landlord’s efforts to install face surveillance.

Even the private sector demonstrated it had a responsibility to act in the face of the growing threat of face surveillance. Axon, the country’s largest body camera supplier, announced it would ban face recognition on its products for the foreseeable future. 

With Congress today holding its first hearing of 2020 on face recognition, it’s critical that lawmakers heed this unmistakable message from constituents: Face recognition surveillance has no place in our communities.

Face recognition offers governments a surveillance capability unlike any other technology in the past. The powerful capability can enable the government to identify who attends protests, political rallies, church, or AA meetings on an unprecedented scale. In China, the government is already using face recognition surveillance to track and control ethnic minorities, including Uighurs. Protesters in Hong Kong have had to resort to wearing masks to trick Big Brother’s ever-watchful eye.

In the United States, federal and local law enforcement agencies have been eagerly adopting this technology too, often in secret, at the urging of private companies, and despite widespread evidence that the technology is biased.

In 2018, an ACLU report revealed Amazon was actively helping multiple police departments deploy the technology in communities. A Georgetown University report revealed that the NYPD used altered photos, artist sketches, and celebrity look-alikes when trying to find criminal suspects using face recognition. And just a few months ago, a massive government study of nearly 200 face recognition algorithms further confirmed that the technology is flawed and biased. For instance, false positives were found to be between two and five times higher for women than men.

One false match can lead to missed flights, lengthy interrogations, tense police encounters, false arrests, or worse. But the technology’s flaws are only one concern. Accurate or not, face recognition technology threatens to forever alter our free society, eroding the little remaining semblance of privacy guaranteed under the Fourth Amendment and turning us all into subjects to be monitored, tracked, and scrutinized wherever we go.

As Congress continues to hear from experts on face recognition, it is critical that it move fast to put the brakes on this technology. It must also press government agencies to disclose when, where, and how law enforcement agencies are using the technology, and what safeguards, if any, are in place to protect our rights.

At the same time, Congress must investigate the technology companies arming law enforcement with this surveillance technology. They should have hearings forcing companies who continue to stonewall Congress to disclose how they are marketing their technology, who they are selling it to, and the representations they have made about its efficacy. As part of these hearings, they should request and make public documents revealing which government agencies use face recognition and from which companies the agencies have purchased this technology. It is unacceptable that many of these companies tout transparency on one end but then on the other end stonewall Congress and continue to secretly do business with law enforcement agencies, often under secrecy agreements.

There can be no accountability if there is no transparency. And communities are demanding action.

In 2019, we proved a face surveillance dystopia isn’t inevitable. Congress can — and must — make 2020 the year we rein this technology in once and for all.

Abdullah Hasan, Communications Strategist, ACLU

A basic legal consensus about our democracy is that the Constitution assigns the “power of the purse” to Congress. Turning this edict on its head, White House Office of Management and Budget (OMB) lawyers reportedly concocted a legal theory that President Trump can override Congress’s foreign policy spending decisions enshrined in law. If such a dangerously expansive proposal exists as a full legal opinion, it should be publicly disclosed — but chances are, it’ll stay secret for a generation unless Congress intervenes.

To recap, the president tried to withhold congressionally-mandated military aid to Ukraine, while cutting Congress out of the process, to force an investigation into one of his political opponents. Overshadowed by the ensuing impeachment firestorm were concerns that the president had violated appropriations law, the Impoundment Control Act, and the legislative branch’s constitutional primacy over spending. Perhaps mindful of the resulting legal red flags, including those raised by Pentagon officials, White House attorneys manufactured a legal justification. As reported, they claimed the president “could do so … if he determined that, based on existing circumstances, releasing the money would undermine military or diplomatic efforts.” Trump would purportedly just need to invoke “constitutional commander in chief powers.”

Trump is not the first president to assert expansions of executive power or dispute Congress’ funding mandates, although he is unique in absurdly claiming that the Constitution gives him “the right to do whatever I want.” It’s also not the first time Trump encroached on legislative control over the budget and flouted appropriations statutes. Last year, the ACLU went to federal court to challenge the president’s unlawful diversions of public money to fund a border wall.

But the White House’s legal justification for Trump’s Ukraine aid machinations is a new, potentially more far-reaching and alarming twist. Depending on the details of the White House’s legal analysis, which has not been officially confirmed or disclosed, such an extraordinarily broad power grab set as precedent could gut the separation of powers and upend our constitutional order. A maximalist version could even foreclose Congress’s ability to check presidential overreach and fulfill basic duties involving matters of war and peace, including conducting oversight through appropriations laws and establishing spending priorities. What Congress enacted wouldn’t matter under the worst-case scenario because the president could unilaterally ignore or nullify it. It’s an especially galling argument with respect to military funding, as the Constitution explicitly allocates that authority to Congress.

That’s why the public should be able to review the complete content of what the White House lawyers authored. However, a key obstacle is how the Freedom of Information Act (FOIA) works today. FOIA is the mechanism by which Americans can ordinarily obtain government records; in fact, the law presumes that any government document is public unless covered by one of its narrow exceptions. But if faced with a FOIA request for the new legal theory, the administration is likely to hide it behind a particular exemption. (Unlike other parts of the White House, OMB is subject to FOIA.) 

Specifically, FOIA Exemption 5 allows the government to choose to withhold (or release) certain “inter-agency or intra-agency memorandums or letters” and includes the so-called “deliberative process privilege,” which no longer shields records 25 years or older due to recent reforms. This ostensibly allows government employees to engage in candid internal conversations during the decision-making process. In practice, Exemption 5 is notorious for overuse and abuse, fueled by recent pro-secrecy court rulings. It’s been invoked to conceal even the titles and publication dates of the Department of Justice Office of Legal Counsel’s final and binding legal opinions — a form of secret law, which has no place in a democracy and was one of the evils that FOIA was intended to prohibit.

In the Ukraine scandal, the administration already invoked Exemption 5 to make suspicious redactions. Seizing a rare opportunity to compare those redactions to unredacted emails, Just Security uncovered the censorship of crucial excerpts questioning the legality of the White House’s actions, thereby painting a misleading picture — even though FOIA cannot be used to conceal governmental misconduct. So it would be unsurprising if the administration sought to shield the White House’s new legal theory behind Exemption 5. It’s possible the courts would be skeptical because it doesn’t protect post-decisional records and news reporting suggested that the legal justification came after the decision was made to withhold the military aid. That said, we cannot count on the courts to save the day, especially when the executive branch invokes foreign policy or national security interests.

Congress must intervene to reform the FOIA exemptions on behalf of the public, not just access the White House’s legal theory for itself. Such amendments would be timely because as the Ukraine scandal shows, the president’s attempts to usurp Congress’s power of the purse and the broader problem of “secret law” are both ongoing issues. There are many good ways to update FOIA; one idea to consider, for example, is a new Exemption 5 balancing test to require agencies and reviewing courts to weigh the public’s interest in transparency against an agency’s interest in secrecy. In order for FOIA to truly and fully deliver on its promise of a transparent and accountable government, the legislature must act.

Kate Oh, National Political Advocacy Department, ACLU