West Resendes, Staff Attorney, ACLU Disability Rights Program

Brian Dimmick, Senior Staff Attorney, Disability Rights Program, ACLU

Andres Lopez-Delgado, he/him, Staff Attorney, ACLU of Georgia

THIS ARTICLE HAS BEEN TRANSLATED INTO AMERICAN SIGN LANGUAGE

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A closeup of an American Sign Language interpreter's hands as they sign.

A five-year effort to get equal access for deaf and hard-of-hearing people on parole and probation in Georgia has ended in victory. The American Civil Liberties Union and our legal partners reached a groundbreaking settlement that requires the Georgia agency responsible for supervising people on probation and parole – the Georgia Department of Community Supervision or “GDCS” – to dismantle the discriminatory hurdles that make it harder for deaf and hard-of-hearing people to avoid prison and live safely in their communities. We hope that other states look to this agreement when determining what is required for their supervision agencies to comply with the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

For years, our clients lived in constant fear of reincarceration. Supervision officers often held important meetings with people who used American Sign Language (ASL), but failed to provide ASL interpreters or other needed accommodations. They “explained” the rules of supervision to people who could not hear or understand these rules, but who nonetheless risked prison or jail if they didn’t follow them.

Two of our clients had this exact fear realized when ineffective communication resulted in them being incarcerated while the case was ongoing. Supervision officers also failed to take disability into account in other ways, too. They knocked on the doors of individuals they knew were deaf, and then accused them of failing to cooperate when they didn’t answer a knock at the door that they couldn’t hear.

Our clients’ heroic and sustained efforts have helped to guarantee equal rights for all deaf and hard-of-hearing people on supervision in Georgia. Starting now, each current and future deaf and hard-of-hearing person on supervision in Georgia will undergo a communication assessment that will allow the state to create a communication plan that considers the range of situations a deaf or hard-of-hearing person may experience while on supervision, and the types of accommodations they may need.

Importantly, GDCS has agreed to provide Deaf interpreters for people who need them. Deaf interpreters are sign language interpreters who are also deaf. A Deaf interpreter will work with a hearing ASL interpreter to provide effective communication, especially for deaf adults who have experienced language deprivation — a neurodevelopmental disorder with negative and long-lasting effects on the deaf adult’s language, cognitive, and socioemotional development. Long periods of incarceration with no ability to communicate with other people who know ASL can compound the effects of language deprivation. Hearing-sign language interpreters alone are typically unable to bridge the communication gap between deaf adults with language deprivation and their supervision officers. This communication gap can often lead to serious and preventable misunderstandings between the deaf person and the supervision officer that a Deaf interpreter could solve.

For example, in one instance a probation officer relied on a single, hearing interpreter — present on a computer — to explain a form with confusing conditions to a client. The client struggled to understand the interpreter and asked to take a photo of the form so he could ask the ACLU’s legal team to provide a Deaf interpreter to translate the form in a way he understood. Had the ACLU not stepped in to secure a Deaf interpreter, our client would not have fully understood what the form said, nor would he have been able to ask several clarifying questions, and would have risked reincarceration. This settlement ensures that any use of video interpretation, known as VRI, is clear, not relegated to a small cell phone screen, and that supervisees actually understand the directions being given.

GDCS will also now provide better accommodations for deaf or hard-of-hearing clients who cannot read and write English. Historically, the agency provided critical information about supervision only in writing. With this settlement, a lack of fluency in reading or writing English will no longer be a barrier to successfully completing supervision. If the deaf or hard-of-hearing person cannot understand written documents due to their disability, GDCS has agreed to use appropriate accommodations and provide the written information in another accessible format. This will help prevent future incidents of confusion when people receive documents with important instructions that they do not understand. We have also produced ASL and plain language translations of the new ADA Policy so that signers and those with limited literacy can access the ADA policy at any time.

Many people on supervision in Georgia are required to complete programs or classes as a condition of their supervision, but, in the past, the sponsors of many of these programs have refused to provide ASL interpreters and other necessary accommodations to our clients. GDCS will now require that the providers of any classes or programs required for people on supervision, comply with federal disability laws by providing necessary accommodations, such as interpreters, for effective communication.

While we’ve won this fight in Georgia, the work is not yet done. Every parole and probation department in the country has the obligation under federal disability laws to provide not only effective communication to deaf and hard-of-hearing people, but also any reasonable accommodations that people with disabilities need to have an equal opportunity to successfully complete supervision. In reality, probation and parole departments regularly fail to determine whether their people with disabilities need accommodations, let alone provide those accommodations.

Right now, we’re challenging this failure in Washington, D.C., where people with mental health disabilities are nearly twice as likely to face reincarceration or other punishment for “technical violations,” or minor rule violations like missing an appointment with a supervision officer. And in Georgia, we now begin a four-year period of monitoring the state’s compliance with the agreement. As part of that monitoring, GDCS will provide us with documentation to show that they are complying with the agreement and providing effective communication. If they violate it, we’ll see them back in court.

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Monday, May 20, 2024 - 1:15pm

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Five years after we sued Georgia’s supervision agency for failing to accommodate our clients’ disabilities, a settlement will ensure everyone has an equal chance to complete probation or parole.

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

Arcane laws banning people from wearing masks in public are now being used to target people who wear face coverings while peacefully protesting Israel’s war in Gaza. That’s a big problem.

In the 1940s and 50s, many U.S. states passed anti-mask laws as a response to the Ku Klux Klan, whose members often hid their identities as they terrorized their victims. These laws were not enacted to protect those victims, but because political leaders wanted to defend segregation as part of a “modern South” and felt that the Klan’s violent racism was making them look bad.

Now these laws are being used across the country to try and clamp down on disfavored groups and movements, raising questions about selective prosecution. Just this month, Ohio Attorney General Dave Yost sent a letter to the state’s 14 public universities alerting them that protesters could be charged with a felony under the state’s little-used anti-mask law, which carries penalties of between six to 18 months in prison. An Ohio legal expert, Rob Barnhart, observed that he’d never heard of the state’s law being applied previously, even to bank robbers wearing masks. While Yost framed his letter as “proactive guidance,” Barnhart countered that “I find it really hard to believe that this is some public service announcement to students to be aware of a 70-year-old law that nobody uses.”

Ohio officials aren’t the only ones who seem to be selectively enforcing anti-mask laws against student protestors. Administrators at the University of North Carolina have warned protesters that wearing masks violates the state’s anti-mask law and “runs counter to our campus norms and is a violation of UNC policy.” Students arrested during a protest at the University of Florida were charged with, among other things, wearing masks in public. At the University of Texas at Austin, Gov. Greg Abbott and university officials called in state troopers to violently break up pro-Palestinian protests after the school rescinded permission for a rally on the grounds that protesters had a “declared intent to violate our policies and rules.” One of the rules the administrators cited was a university ban on wearing face masks “to obstruct law enforcement.”

At a time when both public and private actors are increasingly turning to invasive surveillance technologies to identify protesters, mask-wearing is an important way for us to safeguard our right to speak out on issues of public concern. While the ACLU has raised concerns about how anti-mask laws have been wielded for decades, we are especially worried about the risk they pose to our constitutional freedoms in the digital age.

In particular, the emergence of face recognition technology has changed what it means to appear in public. Increasingly omnipresent cameras and corrosive technology products such as Clearview AI allow police to easily identify people. So, too, can private parties. The push to normalize face recognition by security agencies threatens to turn our faces into the functional equivalent of license plates. Anti-mask laws are in effect a requirement to display those “plates” anytime one is in public. Humans are not cars.

Of course, mask-wearing is not just about privacy — it can also be an expressive act, a religious practice, a political statement, or a public-health measure. The ACLU has chronicled the mask-wearing debate for years. As recently as 2019, anti-mask laws were used against Occupy Wall Street protesters, anti-racism protesters, and police violence protesters. The coronavirus temporarily scrambled the mask-wearing debate and made a mask both a protective and a political act.

Today, one question that remains is whether and how the authorities distinguish between those who are wearing a mask to protect their identities and those who are wearing one to protect themselves against disease. That ambiguity opens up even more space for discretionary and selective enforcement. In North Carolina, the state Senate is currently considering an anti-protest bill that would remove the exception for wearing a mask for health purposes altogether, and would add a sentencing enhancement for committing a crime while wearing a mask.

For those speaking out in support of the Palestinian people, being recognized in a crowd can have extreme consequences for their personal and professional security. During the Gaza protests, pro-Israel activists and organizations have posted the faces and personal information of pro-Palestine activists to intimidate them, get them fired, or otherwise shame them for their views. These doxing attempts have intensified, with viral videos showing counterprotesters demanding that pro-Palestinian protesters remove their masks at rallies. Professionally, employers have terminated workers for their comments about Israel and Palestine, and CEOs have demanded universities give them the names of protesters in order to blacklist them from jobs.

While wearing a mask can make it harder to identify a person, it’s important for protesters to know that it’s not always effective. Masks haven’t stopped the Chinese government or Google, for example, from identifying protesters and taking action against them. Technologies that can be used to identify masked protesters range from Bluetooth and WiFi signals, to historical cell phone location data, to constitutionally dubious devices called IMSI Catchers, which pretend to be a cell tower and ping nearby phones, prompting phones to reply with an identifying ping of their own. We may also see the development of video analytics technologies that use gait recognition or body-proportion measurements. During Covid, face recognition also got much better at identifying people wearing partial face masks.

Protecting people’s freedom to wear masks can have consequences. It can make it harder to identify people who commit crimes, whether they are bank robbers, muggers, or the members of the “violent mob” that attacked a peaceful protest encampment at UCLA. Like all freedoms, the freedom to wear a mask can be abused. But that does not justify taking that freedom away from those protesting peacefully, especially in today’s surveillance environment.

Anti-mask laws, undoubtedly, have a significant chilling effect on some protesters’ willingness to show up for causes they believe in. The bravery of those who do show up to support a highly-controversial cause in the current surveillance landscape is admirable, but Americans shouldn’t have to be brave to exercise their right to protest. Until privacy protections catch up with technology, officials and policymakers should do all they can to make it possible for less-brave people to show up and protest. That includes refusing to use anti-mask laws to target peaceful protestors.

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Wednesday, May 15, 2024 - 4:30pm

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In today’s world of constant surveillance, people protesting should have the right to wear a mask

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