For more than two years, the ACLU has been fighting a Trump administration policy that prevents unaccompanied immigrant minors in federal care from accessing abortion. We had previously won in the lower court, securing a preliminary block on the policy. And last week, the Trump administration chose not to challenge that ruling and ask the Supreme Court to review the case—a real victory in our fight for justice for the Janes.

We first filed the case in October 2017 on behalf of Jane Doe, a fearless young immigrant woman who fought the Trump administration’s attempt to deny her right to end her pregnancy. Jane’s win, and her bravery, laid the foundation for our success in the months that followed in obtaining court orders that blocked the government’s attempts to prevent other young immigrant women from making their own decisions about whether to continue or end a pregnancy.

In March 2018, a federal district court issued an order temporarily blocking the government from enforcing its abortion ban against all pregnant immigrant minors in its custody, finding the ban to be unconstitutional under Roe v. Wade and allowing the case to proceed as a class action.

This past summer, the D.C. Circuit Court of Appeals agreed, finding that the administration’s policy “functions as an across-the-board ban on access to abortion” for pregnant immigrant minors. In its ruling, the Court unanimously “reject[ed] the government’s position that its denial of abortion access can be squared with Supreme Court precedent.”

The Trump administration had until November 8^th to ask the Supreme Court to overturn our lower court win and allow it to resume its policy of forcing these teens to remain pregnant against their will. But last Friday came and went, and the administration filed nothing. 

We’re relieved that the government did not appeal. The government’s failure to ask the Supreme Court to review the injunction means that the temporary protections we’ve secured for the Janes will remain in place.

But this does not mean we can rest easy. The case isn’t over — we’re still fighting in the district court for final, permanent relief that would close the door on the government’s efforts to implement its unconstitutional policy for good. And the Jane Doe case is just one vector of a full-scale effort by the Trump Administration, along with other federal and state politicians, to dismantle our hard-won reproductive rights.

Over the past year, Arkansas, Georgia, Kentucky, Missouri, Ohio, Utah and Alabama have all passed bans on abortion. The ACLU has blocked all of these abortion bans from taking effect, and abortion is still legal in all 50 states. But politicians across the country continue to push these bans in the hopes that the Supreme Court will use one of them to overturn Roe v. Wade.

At the federal level, the Trump administration has sought to strip millions of low-income people who rely on Title X, the nation’s family planning program, of their ability to access comprehensive, high-quality reproductive and family planning care. It has promulgated rules that would have (absent a court order)  permitted employers and universities to deny their employees and students insurance coverage for contraception due to moral objections.  And it has issued other rules — which we just blocked from taking effect — that would have allowed health care providers to refuse to provide critical health care services based on personal religious or moral beliefs.

As the old saying goes, the measure of a nation is reflected in how it treats its most vulnerable members. Nothing is beyond the pale for this administration in its attacks on reproductive health care in general, and immigrants in particular, whether it be ripping children away from their parents at the border, forcing them to stay in squalid, dangerous conditions in Mexico, or denying them access to critical medical care.

The government’s ban on abortion for immigrant minors is just another attempt to strip some of the most marginalized people in our society of their constitutional rights — in this case, young immigrant women of color. Just as your ability to get an abortion should not depend on where you live, neither should it depend on your immigration status, age, national origin, race, gender identity, or economic circumstances. We won’t let up in our fight on multiple fronts to ensure abortion remains safe and legal for everyone in America, including back in the district court, where we will resume our efforts on behalf of the Janes to ensure that this administration’s unconstitutional policy is struck down for good.

Meagan Burrows, Staff Attorney, Reproductive Freedom Project, ACLU

A significant number of Americans hold significant misconceptions about their privacy, according to opinion research — misconceptions that privacy-invading companies love. That’s according to research on American understandings of privacy carried out over the past couple decades by the Annenberg School for Communication at the University of Pennsylvania, lead by Prof. Joseph Turow, whom I recently heard give a talk summarizing these studies.

Misconception #1: “We care about your privacy!”

One misconception is that when a web site has a “privacy policy,” that actually means the site has a policy to protect your privacy. Annenberg presented respondents with the false statement that “When a web site has a privacy policy, it means the site will not share my information with other websites or companies without my permission.” In 2018, nearly 60 percent of Americans either said they believed this was true, or that they did not know. In past years the percentage of those surveyed giving incorrect answers was as high as 78 percent.

Unfortunately, nothing could be further from the truth. Most “privacy” polices start by declaring, “We care about your privacy!” and then go on to say, in extremely long and complicated legal language, that you have no privacy. Lawyers write these policies to minimize the presence of any actual concrete promises that might limit what a company does. Because the United States doesn’t yet have a baseline privacy law, the only thing protecting our privacy in most commercial contexts is a prohibition on “acts or practices that are unfair or deceptive.” That prohibition was enacted in 1914 — just slightly before the advent of today’s online advertising surveillance systems. What that means is that (outside of a few narrow areas that are regulated such as credit reporting) a company can do whatever it wants with your personal information. The only thing it generally cannot do under federal law is say it’s going to do one thing and then do another, which would count as “unfair or deceptive,” and leave a company vulnerable to enforcement by the Federal Trade Commission.

Turow says that “marketers know” about this misconception and benefit from the confusion and the misplaced consumer trust it creates. Turow suggests that “privacy policy” is “a deceptive term” and that “the FTC should require a change in the label.” “How We Use Your Data” would be more accurate.

Misconception #2: What is unfair is also illegal.

A second misconception that many Americans hold is that the law protects them more than it does. For example, in 2015, 62 percent of Americans didn’t know that it is completely legal for an online store to “charge different prices to different people at the same time of day”; in 2012, 76 percent did not know that “online marketers are allowed to share information about diseases you or your family members have”; and in 2018, 46 percent did not know that an “internet provider has a legal right to sell information to marketers about the websites you visit.” (We think they actually don’t have such a right under the Communications Act, which states that “every telecommunications carrier has a duty to protect the confidentiality” of personal information — but an attempt to craft detailed rules enforcing that law was killed by Congress and President Trump in 2017, and there’s no sign that such a right will be enforced by the federal government anytime soon.)

What’s going on here, Turow believes, is that people have fairly well-defined feelings about what kinds of behavior are fair and what are not — and they tend to think that things that are unfair are also illegal. They think, as he puts it, that the government has our backs much more than it actually does.

Annenberg’s polling confirms other polling in consistently finding that people are deeply uncomfortable with the state of their privacy online. Two-thirds (66 percent) of adults, for example, told surveyors that they do not want advertisements “tailored to their interests,” and 91 percent disagreed with the statement that “if companies give me a discount, it is a fair exchange for them to collect information about me without my knowing.” Asked whether “It’s okay if a store where I shop uses information it has about me to create a picture of me that improves the services they provide for me,” 55 percent disagreed.

These findings, Turow concludes, “refute marketers’ insistence that Americans find increased personalized surveillance and targeting for commercial purposes acceptable.”

So why do people give up so much information? The problem is that they feel helpless. The surveys found that 58 percent of Americans agreed with the statement, “I want to have control over what marketers can learn about me online” — but at the same time 63 percent also agreed, “I’ve come to accept that I have little control over what marketers can learn about me online.” Although marketers like to portray Americans as cheerfully accepting a tradeoff between their privacy and the benefits they gain, that’s not at all what’s happening. As Turow told me, “The bottom line for us is resignation. It’s not as if people want to give up their privacy, but in order to get through life they feel they have to, and they don’t feel like they have the ability to change things.”

Misconception #3: We’ve lost the privacy battle.

This, I would argue, is the third misconception: that the battle is lost and there’s nothing people can do about protecting their privacy. It’s true that there are good reasons why people feel that way — there’s only so much that an individual can do to protect their privacy, especially if they’re short on technical expertise or willingness to tolerate inconveniences in order to fight surveillance. It’s true that our privacy depends to a large extent not on individual decisions but on collective decisions we make as a nation about the policies we want to set. It’s also true that the companies that profit from surveillance are wealthy and politically powerful.

Nevertheless, the clouds are gathering for a major reckoning. The European Union has enacted a  comprehensive privacy law called the General Data Protection Regulation (GDPR) that is forcing even many U.S.-centered businesses to improve their privacy practices. California, where one in eight Americans live, has also enacted a broad privacy law called the California Consumer Privacy Act (CCPA). And as these laws weaken the will of companies to oppose privacy protections, scandals such as the Cambridge Analytica fiasco have strengthened the desire of politicians across the political spectrum to support such rules. The result: For the first time in many years, members of both parties are reportedly working to draft and enact comprehensive privacy legislation. 

There are major battles ahead, but, as I have argued, in the end people need — and always demand — privacy. Privacy-invading companies love it that people feel helpless, but now is the time for people to trade resignation for anger and activism, and voice that demand to ensure that any new privacy laws are strong and meaningful. The status quo is not stable, and the battle is just getting underway.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

In a major victory for privacy rights, a federal court has held that the federal government’s suspicionless searches of smartphones, laptops, and other electronic devices at airports or other U.S. ports of entry are unconstitutional. The ruling in our case is a recognition that the Constitution protects us even at the border, and that traveling to or from the United States doesn’t mean we give the government unfettered access to the trove of personal information on our mobile devices.

BREAKING: In a major victory for privacy, a federal court ruled today that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. pic.twitter.com/SJDIERJdV5

— ACLU (@ACLU) November 12, 2019

_{To prevent tracking by Twitter, we are showing a preview. See original tweet.}

In recent years, as the number of devices searched at the border has quadrupled, international travelers returning to the United States have increasingly reported cases of invasive searches. For instance, a border officer searched our client Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications. And recently, at Boston Logan Airport, an immigration officer reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for his friends’ social media posts expressing views critical of the U.S. government, and denied the student entry into the country following the search.

These cases aren’t unique. Documents and testimony we and the Electronic Frontier Foundation obtained as part of our lawsuit challenging the searches revealed that the government has been using the border as a digital dragnet. CBP and ICE claim sweeping authority to search our devices for purposes far removed from customs enforcement, such as finding information about someone other than the device’s owner.

The court’s order makes clear that these fishing expeditions violate the Fourth Amendment. The government must now demonstrate reasonable suspicion that a device contains illegal contraband. That’s a far more rigorous standard than the status quo, under which officials claim they can rummage through the personal information on our devices at whim and with no suspicion at all.

It’s difficult to overstate how much personal information our electronic devices contain, and how revealing searches of those devices can be. Our smartphones are unlike any other item officers encounter at the border — they likely contain years of emails, messages, videos, photos, location data, browsing history, and medical and financial data. A search of our clients’ devices revealed photos of themselves without head coverings worn in public for religious reasons. Others had information on their devices related to their work as journalists.

The bottom line is that for most of us, our phones contain far more information than could be found during a thorough search of our homes.

The court recognized these critical privacy issues in its ruling. It stated that travelers’ privacy interests in their devices are “vast” and that “the potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.” In other words: Digital is different. While the government can search luggage and other physical items at the border without individualized suspicion, it can’t use that authority to rifle through the universe of personal data on our electronic devices.

In reaching that conclusion, the court relied on recent Supreme Court decisions that make clear that older rules under the Fourth Amendment cannot be mechanically extended to justify new kinds of invasive digital-age searches. As the Supreme Court put it, equating searches of physical items and digital devices “is like saying a ride on horseback is materially indistinguishable from a flight to the moon.... Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” The federal court explained this week that the magnitude of the privacy harms is no less great in the context of border searches, requiring stronger Fourth Amendment protections against searches of electronic devices at the border as well.

The court has not yet issued an order regarding how the government should implement the ruling.

Significant work remains to be done to ensure that government officials respect our constitutional rights in the digital realm and at the border. The court’s ruling is a big step in the right direction.

Hugh Handeyside, Senior Staff Attorney, ACLU National Security Project
Esha Bhandari, Staff Attorney, ACLU Speech, Privacy, and Technology Project,
& Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy, and Technology Project