American Civil Liberties Union and Electronic Privacy Information Center

The American Civil Liberties Union (ACLU) is a not-for-profit organization that defends and works to preserve the constitutional rights of individuals within the United States. It uses lawyers and the court system to ensure the guarantee of rights and to overturn infringing practices and laws. In recent years, the ACLU has partnered with the Electronic Privacy Information Center (EPIC), a public interest research center in Washington, D.C., in its attempt to defend civil liberties and to protect privacy. This entry reviews the formation and history of the ACLU and EPIC, examines the groups’ role in defending challenges to civil liberties in the Digital Age, looks at Americans’ evolving view of digital privacy, and concludes with a glimpse of technology advances that have the potential to threaten civil liberties even further.

History

Following the Russian Revolution in 1917, many Americans feared a similar uprising in the United States. The U.S. attorney general A. Mitchell Palmer arrested and deported individuals believed to be communists. Roger Baldwin, Crystal Eastman, Albert DeSilver, and others formed the ACLU in 1920 to ensure that these individuals would receive due process as provided in the U.S. Constitution.

Since that time, the ACLU has focused on preventing government abuse and defending freedom of speech and religion; a woman’s right to choose; the right to due process; immigrant rights; lesbian, gay, bisexual, and transgender rights; and citizens’ rights to privacy. It has been involved in some of the major legal cases of the 20th century, including partnering with Clarence Darrow for State of Tennessee v. John Thomas Scopes (1925), which challenged the right of Tennessee to ban the teaching of evolution in schools. When President Franklin Roosevelt ordered the internment of Japanese-Americans after Japan bombed Pearl Harbor in December 1941, the ACLU challenged this policy. In Brown v. the Board of Education (1954), the ACLU joined with the National Association for the Advancement of Colored People to contest the “separate but equal” doctrine that allowed segregation of schools. It was also a party in Roe v. Wade (1973), which established a woman’s right to privacy in making decisions about her pregnancy, and in Lawrence v. Texas (2003), it used the right to privacy established in Roe v. Wade to convince the Supreme Court to strike down a law in Texas that made same-sex sexual behavior illegal. In 2013, the ACLU represented Edie Windsor before the U.S. Supreme Court in United States v. Windsor, which resulted in the overthrowing of the Defense of Marriage Act. While often seen as being on the side of liberal causes, the ACLU, in 1978, defended a Nazi group’s right to march through a suburb of Chicago in which many Holocaust survivors lived. This unpopular stand demonstrated its commitment to the belief that constitutional rights must apply to the unpopular to guarantee that they are to be preserved for all.

The EPIC, established in 1994, focuses public attention on emerging civil liberties issues and seeks to protect privacy, the First Amendment, and other constitutional values. EPIC routinely participates as amicus curiae before the federal and state courts in cases concerning the protection of privacy; it has partnered with the ACLU in recent cases. EPIC focuses on electronic privacy issues of both government agencies and nonprofit and commercial organizations. The center’s concerns concentrate on the security of private data networks and the Internet in general with a specific focus on consumer data security, cybersecurity, online social media, student and medical records, big data, cloud computing, search engine privacy, drones, and others as new issues emerge. EPIC maintains its own website and others designed to help ensure electronic privacy. In 1996, EPIC established The Public Voice coalition to promote public participation in decisions concerning the future of the Internet. It works throughout the world with the United Nations Educational, Scientific and Cultural Organization, governments, and nongovernmental organizations.

Challenges to Civil Liberties in the Digital Age

The rapid growth of the Internet has challenged the privacy, free speech, and freedom of association rights ensured by the Constitution. Earlier laws designed to protect privacy are inadequate to meet the challenges of new technology. The Internet allows the tracking of personal information collected and analyzed by governmental agencies. Examples include email that is not secure and exists on servers of employers and Internet service providers, websites that track visitors with or without their knowledge, and cell phone tracking of users’ locations.

The EPCA, enacted in 1986, is the legislation designed to regulate law enforcement access to electronic communications. Technology has progressed significantly since that time, tracking individuals through their use of email, web browsing, social media, and cell phones’ location abilities. Individuals can be traced through their use of credit cards and ATM bank cards. Criminal cases have been solved using electronic toll-paying systems to track individuals traveling by car.

Those supporting updating of this legislation indicate the need for warrants to obtain any electronic information. The PATRIOT Act, enacted after 9/11, modified the federal government’s authority in collecting electronic data and eroded individual rights in the name of national security. Warrantless wiretaps were authorized against U.S. citizens, and stored emails could be requested under search and seizure laws rather than more stringent surveillance laws. Government requests for information from Internet companies have become so prevalent that Google has developed a transparency report on the requests for reports it receives and provides information clarifying the legal process.

The ACLU has launched an initiative to identify challenges to civil liberties in the Digital Age. It focuses on First Amendment rights of speech and association, and increasing control that individuals have over their own privacy. Areas of concern include participation in online political protests, freedom of expression, privacy of electronic information, online rights of journalists, scientific freedom and exchange of information, and transparency in court proceedings. As part of its online initiative, the ACLU has launched the Demand Your dotRights campaign to inform individuals about challenges to their digital rights and how to use the laws to protect themselves.

TheDirty.com , a user-generated gossip site. In Antigone Books vs. Horne (2014), the ACLU represented a coalition of publishers, booksellers, librarians, newspapers, and photographers in challenging an Arizona law that criminalizes the display or publishing of nude photographs that are protected by the First Amendment.

The release of National Security Agency (NSA) documents in June 2013 by Edward Snowden confirmed the fears that many had, including the ACLU, that the government was unlawfully collecting data on millions of Americans.

Americans’ Understanding of Digital Privacy

Many Americans believe that online activities and other electronic footprints such as those on credit card systems and mobile phones are routinely monitored by the federal agencies. For some, it is just a fact of life in the modern Digital Age, and they make reasonable efforts to protect their personal information. For others, it creates a paranoid obsession that results in behavior to avoid electronic communication.

Shortly after 9/11, and before the passage of the PATRIOT Act, a majority of Americans (55%) felt that individuals should give up some privacy rights to deal with terrorism, whereas 10 years later, fewer (40%) held this view, and 54% felt that it was not necessary to sacrifice individual rights to curb terrorism, according to a 2013 Pew Research Center report. The Pew Research Center also reported that most Americans did not view the monitoring of personal phone calls and emails as an effective counterterrorism tool. In fact, it was believed to be the least effective. Although many individuals (64%) felt that the government was collecting too much information about them, a greater number (74%) were concerned about the information being collected by businesses. In a 2015 Pew Research Center survey of Americans’ views of governmental agencies, only 51% of those surveyed had a favorable rating of the NSA. Of the eight federal agencies studied, only the Internal Revenue Service had a lower score. The scores for the NSA have changed little since Snowden’s disclosure of NSA surveillance activities.

Following the Snowden leaks, Americans perceive that they have little control over their personal information. About 70% are concerned about government collection of their information on social media sites, whereas 80% believe that Americans should be concerned about government monitoring of home telephone calls and emails, according to a 2014 Pew Research Center report. Many do not believe that most online and mobile communication channels are secure.

Because of their unique role in investigating government corruption and terrorist activities, journalists may be targets of government surveillance. Journalists may also come in contact with sources whose identities they wish to protect and historically have gone to jail to protect rather than reveal their sources. Among investigative journalists, 64% believe that the government has collected information about their online activities, and approximately 80% believe that being a journalist makes them more likely to be monitored, according to yet another 2015 Pew Research Center report. In line with these concerns, journalists also reported changing the ways by which they store and share sensitive documents (49%) and communicate with editors, producers, and other reporters (29%).

The Challenge of New Technologies

Freedom of speech and association as well as the right to privacy remain two fundamental rights in U.S. society that have been challenged by genuine concerns regarding national security and the easy access to digital information. Furthermore, digital footprints of Americans keep growing every day as new technologies are developed.

New “stingray” technology mimics cell towers and forces cell phones within their geographic location to broadcast information that can be captured by law enforcement. Under the Freedom of Information Act, the ACLU has requested records from police departments using stingray technology. These documents show that even when the police have a warrant for a specific phone, information is captured from nearby phones, thus collecting and storing data from individuals not included in the warrant. The ACLU has identified 48 agencies in 20 states and the District of Columbia that have purchased these devices.

In addition to governmental surveillance, citizens are concerned about how other sensitive data, including financial and health care information, are being collected and analyzed by private businesses. The ACLU and its affiliated organizations continue to assess the potential of emerging technology for surveillance and data collection to challenge constitutional rights to privacy and freedom of speech. When threats to these fundamental rights are identified, the ACLU plays a major role in challenging these practices using the court system.

Adele Weiner and Kim Lorber

See also Big Data ; Civil Liberties ; National Security Agency ; PATRIOT Act ; Privacy, Right to ; U.S. Constitution

Further Readings

American Civil Liberties Union. “About the ACLU’s Project on Speech, Privacy, and Technology” (September 25, 2012). https://www.aclu.org/about-aclus-project-speech-privacy-and-technology (Accessed April 2015).

American Civil Liberties Union. “ACLU Wikimedia v. NSA: Challenge to Mass Surveillance Under the FISA Amendments Act” (March 10, 2015). https://www.aclu.org/cases/wikimedia-v-nsa-challenge-mass-surveillance-under-fisa-amendments-act?redirect=national-security/wikimedia-v-nsaAmerican (Accessed April 2015).

American Civil Liberties Union. “Archive of NSA Documents Released by Edward Snowden” (March 23, 2015). https://www.aclu.org/nsa-documents-search (Accessed October 2017).

American Civil Liberties Union. “Stingray Tracking Devices: Who’s Got Them?” (February 24, 2015). https://www.aclu.org/map/stingray-tracking-devices-whos-got-them (Accessed April 2015).

Doherty, C. “Balancing Act: National Security and Civil Liberties in Post-9/11 Era.” Pew Research Center Report (June 7, 2013). http://www.pewresearch.org/fact-tank/2013/06/07/balancing-act-national-security-and-civil-liberties-in-post-911-era (Accessed April 2015).

Holcomb, J., et al. “Investigative Journalists and Digital Security: Perceptions of Vulnerability and Changes in Behavior.” Pew Research Center Report (February 5, 2015). http://www.journalism.org/2015/02/05/investigative-journalists-and-digital-security/ (Accessed April 2015).

Madden, M. “Public Perceptions of Privacy and Security in the Post-Snowden Era.” Pew Research Center Report (November 12, 2014). http://www.pewinternet.org/2014/11/12/public-privacy-perceptions (Accessed April 2015).

Pew Research Center. “Most View the CDC Favorably; VA’s Image Slips.” (January 22, 2015). http://www.people-press.org:2015:01:22:most-view-the-cdc-favorably-vas-image-slips (Accessed January 2015).

Websites

Demand Your dotRights: https://www.dotrights.org

Digital Due Process: http://digitaldueprocess.org

Electronic Privacy Information Center (EPIC): http://epic.org

Public Voice coalition: http://thepublicvoice.org