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Entries in ACLU (4)

Thursday
Apr262012

Teens' Facebook Death Threats Are Subject of Free Speech Lawsuit

Justin Sullivan/Getty Images(LAKE COUNTY, Ind.) -- The American Civil Liberties Union filed a lawsuit on Wednesday against an Indiana middle school for expelling three students who allegedly threatened to kill other classmates on Facebook. The ACLU suit says the girls' right to free speech was violated and the use of emoticons and "LOL" showed they were only joking.

The three students, all 14-year-old girls, were expelled from Griffith Middle School in Lake County, Ind. in early February following comments they'd made on Facebook about "whom [among their classmates] they would kill, and how they would accomplish this feat, if they had the opportunity," according to the lawsuit filed at the U.S. District Court in the Northern District of Indiana.

The controversy began after school on the afternoon of Jan. 24, when one of the girls posted a Facebook status update "concerning her disdain for cutting herself while shaving her legs," according to the court documents. The update was only visible to that particular girl's Facebook friends. Then the three girls began commenting on the status update from their personal home computers, allegedly joking about various topics in some 70 comments that were posted in the span of two hours, according to Gavin Rose, the ACLU of Indiana attorney representing the girls.

The conversation then turned to which of their classmates they'd like to kill, but Rose says that because the girls peppered their comments with smiley-face emoticons and Internet expressions like "LOL" indicating laughter, they should not have been taken seriously by the school.

"It was done so in an entirely jestful fashion, as exemplified by the fact that when you are serious about something, you don't follow it up with 'LOL,'" Rose told ABC News.

The lawsuit alleges that no one, including the girls, mentioned the Facebook conversation at school the next day, but that on the day after that, the mother of one of the girls' classmates showed a printed transcript to school administrators. The girls were each called to the school administrator's office and suspended for 10 days "with recommendation to expel."

Following their suspension, the school held a formal expulsion hearing, where the three girls and their parents were present. An "expulsion examiner" reviewed the facts and ultimately recommended that the girls should be expelled, according to court documents. The girls will be allowed to return to the school district in the fall as ninth graders, but will miss the rest of their eighth grade school year.

Griffith Middle School principal Edward Skaggs told ABC News that the school would not comment on the case, and directed inquiries to the district's legal representatives.

The school has 21 days to respond to the plaintiffs' lawsuit.

According to Rose, one of the students named by the girls in their conversation submitted a letter to the expulsion examiner, saying that he didn't think the girls should be kicked out of school, and that he'd understood what they'd meant.

"It was the type of conversation that every eighth grader has had with their friends," said Rose, but with the growth of social media, "these personal conversations are suddenly available to school administrators."

The school's right to control speech that didn't take place on school grounds depends on whether the girls' conversation presented a "material and substantial disruption," according to Ruthann Robbson, a constitutional law expert and professor at the City University of New York School of Law.

While the school has a reason to be concerned about death threats given the spate of suicides connected to online bullying, Robbson says the off-campus nature of the girls' conversation makes it tough to determine whether they presented a substantial disruption at school, particularly given recent cases that have favored the protected speech of students, not a school's right to curtail it.

Copyright 2012 ABC News Radio

Wednesday
Mar072012

FBI Turns Off 3,000 GPS Devices Following Supreme Court Ruling

iStockphot​o/Thinksto​ck(WASHINGTON) -- A U.S. Supreme Court decision prompted the FBI to turn off nearly 3,000 Global Positioning System (GPS) devices used to track suspects, according to the agency’s general counsel.

When the decision–U.S. v. Jones–was released at the end of January, agents were ordered to stop using GPS devices immediately and told to await guidance on retrieving the devices, FBI general counsel Andrew Weissmann said in a recent talk at a University of San Francisco conference.  Weissmann said the court’s ruling lacked clarity and the agency needs new guidance or it risks having cases overturned.

The Jones case stemmed from the conviction of night club owner Antoine Jones on drug charges. Law enforcement had used a variety of techniques to link him to co-conspirators in the case, including information gathered from a GPS device that was placed on a Jeep primarily used by Jones. Law enforcement had no valid warrant to place the device on the car.

Justice Antonin Scalia, writing for a five-member majority, held that the installation and use of the device constituted a search under the Fourth Amendment based on trespassing grounds. The ruling overturned Jones’ conviction.

“It is important to be clear about what occurred in this case,” Scalia wrote. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment.”

It was a narrow ruling only directly impacting those devices that were physically placed on vehicles.

Weissmann said it wasn’t Scalia’s majority opinion that caused such turmoil in the bureau, but a concurring opinion written by Justice Samuel Alito. Alito, whose opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, agreed with the Court’s conclusion in the case but wrote separately because his legal reasoning differed from the majority.

Alito focused not on the attachment of the device, but the fact that law enforcement monitored Jones for about a month. Alito said “the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”  He also suggested that Scalia’s reliance on laws of trespass, will “provide no protection” for surveillance accomplished without committing a trespass.

“For example,” Alito wrote, “suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased?”

In his talk at a University of San Francisco Law Review Symposium, Weissmann suggested that Alito’s concurrence means that several members of the court are concerned with long-term surveillance by technologies beyond GPS systems and that the FBI needs new guidance in order to ensure that evidence does not get thrown out.

“I just can’t stress enough,” Weissmann said, “what a sea change that is perceived to be within the department.”

He said that after agents were told to turn off the devices, his office had to issue guidance on how some of the devices that had been used without a warrant could actually be retrieved without violating the law.

Weissmann said the FBI is working on two memos for agents in the field. One seeks to give guidance about using GPS devices.  A second one targets other technologies beyond the GPS as they may also face restrictions.

“I think the court did not wrestle with the problems their decision creates,” said Weissmann.

In the Jones opinion, he said, the court didn’t offer much clarity or any bright line rules that would have been helpful to law enforcement.

Catherine Crump, an attorney with the ACLU, welcomed the court’s ruling as a first step toward preserving privacy rights.

“Alito’s concurrence concerned the FBI because if tracking someone’s movements violates their privacy, that should be true no matter what technology the FBI uses,” says Crump. “The FBI now needs to give guidance to agents in the field, and the Alito decision raises serious questions about the constitutionality of other ways of tracking suspects.”

As for Antoine Jones, the man whose conviction was thrown out because of the ruling, the government has announced that it wants to retry Jones without using evidence obtained from the GPS device. The trial is expected to start in May.

Copyright 2012 ABC News Radio

Tuesday
Sep272011

Church or Jail? Alabama Alternative to Incarceration Program on Hold

Stockbyte/Thinkstock(BAY MINETTE, Ala.) -- A Bay Minette, Ala., alternative to an incarceration program that asks first-time, nonviolent offenders to choose between church or jail was slated to start Tuesday but is being delayed for legal review by city officials, said Bay Minette Mayor Jamie Tillery.

"The city will ask the Alabama Attorney General to review the program as well. The city will reserve further comment until these reviews have been completed," Tillery wrote in an email to ABC News.

The Restore Our Community program, called Operation ROC, was developed for those convicted of first-time misdemeanors, offering them the opportunity to either attend church once a week for a year and answer questions about the services or go to jail and pay a fine. Right away, the program sparked controversy.

While Tillery said the first-time misdemeanor offenders would be offered a "menu of options," including community service, the American Civil Liberties Union stepped in to say church should not be among them.

"Even if the city offers other sentencing alternatives that are comparable to Operation ROC, which is far from clear, the First Amendment still prohibits the government from becoming entangled in core religious exercise, which includes attending church," ACLU attorney Heather Weaver told ABC News. "The government may not serve as a conduit for church recruitment."

The ACLU would continue to investigate ROC, Weaver said, "to determine what additional steps should be taken."

On Monday, the ACLU sent a letter to Tillery, Bay Minette city council members and the chief of police, asking that the city end the ROC program and consider nonreligious alternatives to incarceration.

Both federal and state courts have ruled that government officials "can't make going to church or participating in religious activities part of an offender's probation, parole or sentence," said Weaver.

In the ACLU's letter, which cited the First Amendment's anti-coercion clause that states "no person can be punished...for church attendance or nonattendance," it argued that the state of Alabama would be compelling people to go to church if it institututed the ROC program.

Bay Minette Police Chief Mike Rowland did not return calls or respond to emails from ABC News Tuesday, but he told local TV station WKRG, "We believe it is legal. We believe it is a great program. We're going to stick with this and we're going to move forward with it."

The ACLU, however, said that Bay Minette officials weren't offering offenders a constitutional choice.

Judges in Kentucky, Louisiana, Mississippi and Virginia have offered offenders the opportunity to go to church instead of jail, but state courts have ruled those decisions unconstitutional.

If Alabama does permit the ROC program to offer church as an alternative to fines and jail, Weaver said the ACLU might pursue litigation.

Copyright 2011 ABC News Radio

Thursday
Apr212011

Michigan Police Use Device to Download Cellphone Data; ACLU Objects

Cellbrite(LANSING, Mich.) -- A high-tech gadget that can quickly download information from a cellphone is at the center of a controversy that's pitting civil liberties advocates against state police in Michigan.

Since 2008, the ACLU of Michigan has been petitioning the Michigan State Police to turn over information about their use of so-called "data extraction devices" (or DEDs). Manufactured by Cellebrite, a mobile forensics and data services company headquartered in Israel, the devices can connect to cellphones and, even bypassing passwords, retrieve phone numbers, text messages, call history, photos and video.

The issue came to a head this week, after the ACLU published a letter it sent to the state police, demanding transparency and saying misuse of the device could be a Fourth Amendment violation. Michigan State Police issued a statement Wednesday, claiming that "it only uses the DEDs if a search warrant is obtained or if the person possessing the mobile device gives consent."

But civil liberties advocates say that law enforcement's response is insufficient.

"They don't say anything about their past behavior. It's a carefully crafted statement," said Kary Moss, executive director of the ACLU of Michigan.

On a "tip" that police had used a DED unlawfully, Moss said the ACLU filed its first Freedom of Information Act (FOIA) request in 2008 to learn the policies and practices surrounding the extraction device, but the police did not offer answers. Instead, they told the ACLU it would need to pay more than $544,000 to retrieve the records and reports it had asked for. Over the past few years, Moss said the ACLU has tried to work with the police to narrow the request and lower the cost, but with little success.

"We have credible information that they were being used during routine stops without a warrant," she said. "And their response that information would cost half a million dollars suggests that there was some widespread use."

But Michigan State Police spokeswoman Tiffany Brown said the devices have never been used to take personal cellphone information from citizens during routine stops.

Since the state got roughly six DEDs in 2006, Brown said, they have been used by specialty teams in high-level cases that require digital forensics methods -- for example, a child pornography case in which officers would need data from a suspect's computer and cellphone.

When asked why the cost of meeting the ACLU's FOIA requests were in six digits, Brown said that was what it would cost to have several employees, working full-time, assemble documents from a five-year period. She also said that in the five years that the state has owned the extraction devices, it has not received any citizen complaints or been named in any lawsuits.

Copyright 2011 ABC News Radio