In the wake of the terrible Easter Sunday bombings in Sri Lanka, that government shut down access to Facebook, WhatsApp, YouTube, and other social media services. The shutdown garnered praise from some within the United States and other democratic countries, but as tragic as the circumstances may be, Americans must never come to see social media or other Internet shutdowns as anything other than an authoritarian power move and/or a mistake.

Some commentators seemed to have viewed Sri Lanka’s shutdown through the lens of their own fatigue with social media platforms and the nastiness that can take place there. Without doubt, social media connectivity has intensified not only the positive but also the darker sides of humanity. But it’s important that we all keep the bigger picture firmly in mind.

First, Internet shutdowns, which have become increasingly common throughout the world, have a close and odious association with very dark abuses of power. As Stanford expert Jan Rydzak has written, “large shutdowns sometimes accompany aggressive military or paramilitary operations, rendering them virtually impossible to document in real time by reporters and citizen journalists.” Numerous shutdowns have been observed in the Syrian Civil War, for example, “immediately prior to and during military offensives carried out by the Syrian Army.” Rydzak concludes, “Network disruptions and shutdowns provide an invisibility cloak for violence as well as gross violations of human rights.”

Many imagine that such shut-downs can be beneficial by helping squelch brewing sectarian or ethnic violence. But the evidence shows that’s false. A study of shutdowns in India, which has by far the most shutdowns in the world, found that they “are followed by a clear increase in violent protest.” Partly that’s because violent outbreaks are “less reliant on effective communication and coordination” than nonviolent protests. Most outbreaks of genocide have been planned or whipped up by those with centralized, top-down control of communications media (the Nazis in Germany, the Khmer Rouge in Cambodia, the Serbian authoritarian Slobodan Milošević in Yugoslavia, the Hutu elite in Rwanda). Internet shutdowns are a tool that increases and serves centralized power rather than curbing it.

As the Sri Lankan writer Yudhanjaya Wijeratne pointed out, “Right now, in a country with tight government controls on trad[itional] media, social media is a boon for us.” He continued, “violence in [Sri Lanka] began before social media, Internet, telephony. To a large extent much of race hatred is still fueled by print media in this country.”

Not only are shutdowns a bad way to dampen violence, but they have many negative collateral effects. Of course, they interfere with people’s rights to freedom of expression and freedom to peacefully assemble by making it much harder to publish and to organize. They deprive people of accurate information when they need it most, without any clear effectiveness in countering misinformation. They interfere with efforts to reach out, support, and express solidarity with communities targeted by egregious attacks. And they create a sense of isolation when communities can least afford it. As one Sri Lankan activist told the Irish Times,

The social media ban makes it difficult for activists to mobilise [and] make sure communities provide and are given accurate and timely information…. [It] does not counter malicious rumours and fear. It deepens a sense of isolation, and the sense that we are not getting clear information on the latest threats, which leads to panic.

Other negative effects reported by experts and those affected by shutdowns include:

• Disruptions to health care and emergency services, which rely on good communications
• Damage to the economy due to the difficulties imposed on businesses
• Interference with the ability of people separated in an emergency to find and help each other, and to verify each other’s safety

Many who approved of the Sri Lankan blockages would never have supported such a move in this country. As Trevor Timm of the Freedom of the Press Foundation puts it, such views smack of paternalism — the view that “ ordinary Sri Lankans aren’t sophisticated enough to deal with these problems, we know better than they do, and we must trust their political leaders.”

Shutdowns in the U.S.?

When Americans look overseas and see governments shutting down or otherwise disrupting Internet communications, they should see nothing but counterproductive and authoritarian exercises of power.

We have seen hints of such abuses in the United States. Police in Baltimore asked Facebook to shut down a woman’s live video stream and then shot her to death. In 2011, authorities reacted to planned protests by shutting down cell service in the San Francisco subway system BART.

It’s also worth remembering that we currently have a president with marked authoritarian inclinations who displays no respect for the rule of law. That lack of respect has included a willingness to abuse his emergency authorities. And according to an analysis by the Brennan Center, those authorities include a provision of the Communications Act of 1934 that allows the president to shut down or take control of “any facility or station for wire communication” upon his proclamation “that there exists a state or threat of war involving the United States.”

We can hope that President Trump or any succeeding president, no matter how erratic, would never exercise such a power — but lauding these draconian practices in other nations can open the door to acceptance of similar abuses here in the United States.

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

The government often relies on private entities to carry out its work. It has them running private prisons, designing location tracking technologies, and developing artificial intelligence (AI) systems that automate government decisions, such as determining our Medicaid benefits, bail, and even which children are purportedly at risk of abuse or neglect. Today the Supreme Court heard a case, FMI v. Argus Media, about whether working with private companies changes the government’s transparency and accountability obligations to the public. As we and several other organizations argued in a friend-of-the-court brief, it should not.

The Freedom of Information Act (FOIA), the law at the center of the case, requires the government to disclose information to the public upon request unless such information falls within one of nine narrow exemptions. The exemption on the table, Exemption 4, allows the government to withhold “trade secrets” and “commercial or financial information” that is “privileged or confidential” and was not generated by the government.

Under existing law, to successfully invoke Exemption 4, the government must show that public disclosure of that information would likely cause substantial competitive harm to a private entity. A business association, the Food Marketing Institute, is arguing that the court need only rely on a private party’s word that something is “confidential” in order to keep the requested information secret.

That is the opposite of how FOIA is supposed to work.

The case began when a reporter with Argus Leader Media, a South Dakota newspaper, submitted a FOIA request to the U.S. Department of Agriculture (USDA) seeking, among other things, the total amount of federal funds distributed to grocery stores participating in the government program that subsidizes purchases of groceries for low-income families. In other words, a newspaper was seeking information about a public program. The USDA invoked Exemption 4 and refused to disclose this information. After a bench trial, the trial judge determined that disclosure of such information would not cause substantial competitive harm to the grocery stores, and the USDA agreed to disclose the information.

A private business association — not the government — appealed and is now arguing that regardless of whether requested information causes competitive harm, any information deemed “confidential” by a private entity falls within the exemption and outside the public eye. For all contexts in which the government works with the private sector, this would effectively replace FOIA’s longstanding presumption of disclosure with one of secrecy.

FOIA exists to keep the public informed; it enables the public to provide ongoing checks and balances on government action, a core element of a functioning democracy. And knowing what the government is doing and how it’s doing it is a necessary first step to ensuring that the government isn’t violating our rights — and to taking action when it is. Indeed, we at the ACLU often deploy FOIA to get information about a variety of government operations.

While the government often invokes exemptions such as those for law enforcement “techniques and procedures” to withhold information, an expansion of Exemption 4 could exclude information by solely deferring to a company’s private interests. Indeed, Exemption 4 is already invoked in such ways. For example, Harris Corporation asked the police to withhold details about government contracts for cell site simulator equipment — more commonly known as Stingrays — under Exemption 4. And the Department of Homeland Security and Immigration and Customs Enforcement invoked this exemption to prevent disclosure of certain information about government contracts with private detention facility contractors.

To date, such attempts have often been unsuccessful. But today’s case could change that.

While it is usually a private entity’s prerogative to keep certain information secret, it can’t be the government’s. As the intricacies of government work — from surveillance equipment to algorithms to information systems — are increasingly shaped by the private sector, FOIA must remain a tool for the public to keep an eye on the government’s actions.

Lamya Agarwala, Fellow, ACLU Speech, Privacy, and Technology Project

Can a business fire someone because they’re LGBTQ? The Supreme Court will soon tell us.

After a funeral home outside Detroit fired Aimee Stephens because she is transgender, Aimee won a federal appeals court ruling that the firing violated the federal law barring sex discrimination in the workplace. After Don Zarda was fired from his job as a skydiving instructor because he’s gay, another federal appeals court ruled that his firing, too, was sex discrimination.

On Monday, the Supreme Court announced that it would take up Aimee and Don’s cases (plus a third) to decide whether to take those civil rights protections away from Aimee, Don, and all LGBTQ people in America. Not surprisingly, President Trump’s Department of Justice will argue that it should.

In Aimee’s case, she worked for six years in a job she loved as funeral director, getting great reviews. Her boss and co-workers knew her as a man, but she always knew she was female. In 2013, Aimee gathered the strength to come out to her supervisor as the woman she is. She was hoping to find acceptance and to be judged on her good performance alone. Instead, her boss fired her, making no bones about the fact that it was because she was transgender.

In Don’s case, he worked at a skydiving company on Long Island, New York. Don’s teaching often involved tandem skydives, in which he was strapped hip-to-hip and shoulder-to-shoulder with customers learning how to jump. In the summer of 2010, as Don was strapping himself to a female customer for one of those tandem dives, he told her that he was gay to assuage any concern she had about being strapped to a man she didn’t really know. He never thought the comment would cause the end of his career at Altitude Express. But after the dive, Don’s boss fired him because a client learned he was gay.

In both Aimee and Don’s cases, the appeals courts ruled that they were discriminated against because of their sex. If Aimee was a valued employee when her boss thought she was a man, but unacceptable when he learned she was a woman, it’s frankly hard to see what it could be other than sex discrimination. In addition, the court in Aimee’s case — following court decisions over many years — held that discrimination based on transgender status is a form of sex discrimination because it’s impossible to describe what it means to be transgender without talking about a person’s sex.

Similarly, the court in Don’s case held that discrimination based on sexual orientation is a form of sex discrimination because you can’t describe what it means to be gay without talking about a person’s sex.

In addition, the courts held that both Aimee and Don were penalized for failing to conform to their employer’s sex stereotypes — in Don’s case that men should be attracted to women and in Aimee’s case that people who are assigned the male sex at birth are not supposed to look and behave as women.

The Equal Opportunity Employment Commission agrees that anti-LGBTQ discrimination is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. And for several years it has been enforcing that statute on behalf of LGBTQ people from every corner of the country who face workplace discrimination.

Unfortunately, President Trump’s Justice Department has taken the opposite position — arguing in both of these cases that it’s perfectly legal under federal law to fire Aimee because she’s trans and Don because he’s gay.

The Supreme Court ruling that Trump seeks — that firing LGBTQ people is legal — would shock most of America. A core American value is that people should be judged in the workplace based on their performance, not their identity. It’s a travesty that our government is advocating for discrimination to be legal.

The stakes here are huge. If federal law says it’s fine to fire someone because she’s lesbian or transgender, other federal civil rights laws may well not protect LGBTQ people, either. The federal education anti-discrimination law may not stop schools from harassing transgender students. The Federal Housing Act may not stop landlords from evicting same-sex couples. And the Affordable Care Act may not prevent health care providers from turning away transgender people. In fact, such a ruling could lead to the very “erasing” of transgender people from civil rights laws that the Trump Administration is reported to have been considering last fall.

Tragically, Don died in a skydiving accident in 2014. Don’s surviving partner, Bill Moore, and his sister, Melissa Zarda, have continued the lawsuit on behalf of Don’s estate. Bill and Melissa will be at the Supreme Court this spring along with Aimee, and all three will fight to ensure that the court doesn’t strip millions of LGBTQ people in America of the federal non-discrimination protections that current law provides.

Here’s hoping the court lives up to the nation’s values and rejects the Trump administration’s effort to relegate LGBTQ people to second-class status.

James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & HIV Project