By Chad Marlow, ACLU Senior Advocacy and Policy Counsel

The COVID-19 coronavirus outbreak that has ravaged our nation and world has had many jarring moments. For parents and their children, one of those came with the mass closing of our schools. Tens of millions of children faced having their educations grind to a halt, including 1.1 million children in New York City’s public schools alone — a number which includes two of my own.

While Americans have grown understandably weary of the tech industry, which repeatedly puts its profits ahead of Americans’ personal privacy, recent offers by companies like Google (via its Google Classroom app) and GoGuardian to provide their remote learning platforms to students for free during the pandemic seemed like a godsend. After all, it would enable U.S. students, at no cost, to continue to learn from the safety of their own homes. 

Maybe the tech industry tiger is changing its stripes. Or maybe the tech industry devil just glued a fake halo on top of its horns. The answer to that question all depends on whether they will insist on undermining students’ privacy as a condition of helping them.

For years, the ACLU has expressed concerns about how the tech industry’s educational products — often classified under the name EdTech — are used to gather massive amounts of highly personal student information. Further, some of these products troublingly enable EdTech companies and schools to spy on students despite no evidence of wrongdoing — a practice that further exacerbates the over-disciplining of students of color. We at the ACLU have launched national efforts to encourage states to pass laws protecting student privacy, offered suites of model bills to assist their efforts, and spoken out against ever-increasing student privacy invasions.

Now that the COVID-19 pandemic has created an unprecedented opportunity for EdTech companies to make the use of their privacy-violating educational products nearly universal, there is a real risk that these companies, under the guise of a generous act, will use this opportunity to create personal information dossiers on an entire generation of young Americans.

One could argue that such an interpretation is very cynical; it is a textbook example of looking a gift horse in the mouth. Perhaps it is. In fairness, the tech industry has made trillions of dollars giving away “free” products that are not actually free: Americans, knowingly or unknowingly, pay for their products by giving them troves of personal information, which the companies then use to make staggering profits.

The good news is that Americans and their governments should not — and do not have to — feel trapped into choosing between students’ education and privacy rights. There is a simple, four-part approach governments and school districts can and should take when accepting (or continuing to use) the “free” remote learning platforms EdTech companies like Google and GoGuardian have offered.  If these EdTech companies are truly acting in the best interests of students and teachers here, they shouldn’t object at all.

It’s as simple as this:

Step One: To the extent these remote learning platforms are being provided for free specifically to help students learn remotely, that is a wonderful act and should be appreciated. Let’s start by thanking these EdTech companies for their generosity.

Step Two: Use of these “free” remote learning platforms, which will likely feel mandatory for students and families during this crisis, should not be conditioned on students allowing EdTech companies to gather up and retain their private and personal information. Governments, including school districts, should insist EdTech companies limit their personal information gathering to only what is directly necessary for their platforms’ remote learning functionality. Moreover, these EdTech companies should be required to expunge all the personal information they gather during this crisis when it resolves, unless a student specifically opts-in to it being retained (via a clear, post-crisis request, and not as part of a broad user agreement they sign now under pressure).

Step Three: Governments and school districts should insist EdTech companies disable any surveillance functions that may accompany their remote learning platforms, including communications and social media monitoring, keyword alerts, and web filtering functions.  Students and their families need these platforms to learn at home, not to allow companies and school districts to spy on them; receiving the former should not be conditioned on exposing oneself to the latter.

Step Four:  To ensure the EdTech companies keep their promises, they should consent to government auditing of their compliance after the pandemic subsides.
If the EdTech companies are truly providing their remote learning platforms for free to help students and their families during this terrible and challenging time, they should have no problem instantly agreeing to these conditions.  If they balk, we will know they are once again the devil in disguise.

By Steven K. Choi, Executive Director of New York Immigration Coalition

Last year around this time, my biggest worry was how the inclusion of the Trump administration’s proposed citizenship question would depress participation in the decennial census. Thankfully, our Supreme Court victory means there is no citizenship question on the census. Now, I have a new worry: a global pandemic and the health of my loved ones. As it turns out, the 2020 Census plays a role here too, as it will have enormous implications on our health care for decades to come. 

Specifically, the census will determine the allocation of $300 billion dollars of federal aid for the states’ health care — money for programs like Medicaid, which covers low-income individuals, families, and persons with disabilities; the Children’s Health Insurance Program, which helps uninsured, low-income children; and other programs that help assure vulnerable people, including immigrants, can get health care when they need it. 

As I shelter in place in New York, the epicenter of America’s COVID-19 pandemic, the potential impact is tangible. Even before “self-isolation” and “shelter in place” became part of our country’s lexicon, New York was in danger of an undercount. According to the Census Bureau, New York City’s all-important initial response rate is projected to be 58 percent — woefully short of the 2010 national average of 66.5 percent. But across the country, there are safe ways to practice social distancing and fill out the census — online, by the phone, or by mail (just don’t lick the envelope).

These worrying trends were exacerbated by the  Trump administration’s unlawful attempt to include a citizenship question on the census. While my organization, the New York Immigration Coalition, amongst other partners including the ACLU, successfully argued against the inclusion of the question, participation in the census by immigrant populations became less and less likely each passing month. Just the threat of this question, coupled with increasingly aggressive targeting of our communities by Immigration and Customs Enforcement, have forced immigrants nationwide into the shadows and made participation in the census highly suspect.

Now immigrants stand on the frontlines of COVID-19 — nursing our elderly, cooking and delivering our meals, and driving us back and forth from the hospital, with even fewer protections. In short, our immigrant communities are keeping us functioning, and we must ensure that they don’t lose deserved resources and representation. As the COVID-19 pandemic creates a different kind of fear among immigrants, it’s more vital than ever before that every state gets its fair share of federal funding to ensure our hospitals and our entire infrastructure — from libraries to schools to roads — are better prepared for the next crisis.

But we can draw on the lessons we learned fighting the President’s attempts to exclude immigrants. To that end, we are deploying several tools to ensure an accurate count of everyone in the United States — using text-banking, virtual phone banking, Zoom trainings for community-based organizations, and multilingual messaging.

There is no doubt that the challenge before us is monumental. After all, even the Spanish Influenza of 1918 took place in a non-census year. Nonetheless, we are working hard with every social distancing tool at our disposal to ensure that every immigrant and everyone in the U.S., from all backgrounds, are fully represented in the nation’s once-in-a-decade count of its populace. At stake is billions of dollars for local schools, hospitals, libraries, businesses, and the health and well-being of everyone in our country.

By Vera Eidelman, ACLU Staff Attorney

Since this country’s founding, when we’ve had something to say, we have taken to the streets. We’ve come together to celebrate our identities, to protect our land and our communities — and to push for change following injustice and tragedy. But if a recent decision from the Fifth Circuit Court of Appeals involving a Black Lives Matter protest is left standing, the right to protest will be in serious jeopardy.

That is why, today, we’re asking the Supreme Court to take the case.

The Fifth Circuit decision stems from protests that erupted in Baton Rouge, Louisiana after two white police officers shot and killed Alton Sterling, a Black man, on July 5, 2016. In the days that followed, people took to the streets to make clear that Black lives matter. They came together to express outrage, to call for accountability and justice, and to demand change.  

Police responded not by engaging with the substance of protestors’ calls, but with riot gear, excessive force, and illegitimate arrests. And one police officer brought a civil suit for monetary damages based on allegations that, in the midst of the protest, someone (we don’t know who) threw something (we don’t know what) and hit the officer (we don’t even know his name). The one thing we know with certainty — and based on the officer’s own allegations — is that the individual the officer sued is not the person who threw the object, but our client, DeRay Mckesson — an activist who was there to add his voice and to amplify others.

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The district court that first reviewed the case correctly dismissed it as violating a core tenet of the First Amendment: that, in the context of a protest, individuals cannot be held liable for the unlawful, unintended acts of others. But, after the officer appealed, the Fifth Circuit issued a baffling and deeply concerning order that ignores that principle and, in doing so, puts all of our free speech rights at risk. The court concluded that a protester could be held liable for the foreseeable, but unintended, unlawful actions of a fellow protester. If allowed to stand, the precedent could signal the end of protest.

The Fifth Circuit panel first concluded that Mckesson had no control over the individual who threw the object, and had not intended for the object to be thrown. Yet the judges concluded that Mckesson could be liable for the officer’s injuries.

Why? Because, during the protest, Mckesson (according to the judges’ reading of the officer’s allegations) directed others onto the street in front of police headquarters, purportedly in violation of a Louisiana law. Because that act was allegedly not protected by the First Amendment, the panel reasoned that Mckesson could be liable for any harm that followed — including another person throwing an object at an officer — as long as it was foreseeable. And, the panel concluded, it was foreseeable: As soon as people stepped out onto the street, police officers would inevitably come to enforce Louisiana’s laws, and that was enough to expect that violence could occur.

This logic is not only flawed, but also reveals a dismal view of police-citizen interaction. Even if law enforcement does often respond to protests with excessive force, that is not something courts should accept — or protesters or police should expect — as a given.

And the court’s flawed reasoning is also dangerous for another reason. It means that, in the Fifth Circuit at least, protest leaders can find themselves on the hook for an unlawful act they did not intend, committed by an unidentified person they neither knew nor controlled.

To be clear, the First Amendment typically does not protect someone from liability for breaking the law, even if they did so for political reasons. That means that, had someone sued Mckesson for delaying traffic, he may have been liable. Equally, had the officer sued the individual who threw the object, the officer’s case would have been able to proceed without threatening speech rights. But, in the context of a protest, the allegation that Mckesson unlawfully impeded traffic cannot suffice to make him liable for the independent, unintended act of the object-thrower.

The Supreme Court made this clear in 1982. While the Constitution does not protect violence, the Court held, it does limit the government’s ability to place responsibility for that violence onto peaceful protesters. That seminal civil rights case, NAACP v. Claiborne Hardware Co., has been cited repeatedly to ensure robust speech protections, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests.

The Fifth Circuit’s opinion risks undoing all of that. Under the Fifth Circuit’s theory, a police officer — or, equally, a counter-protester — need only allege that a protest organizer directed or enabled other protesters to do any illegal thing, from overstaying a permit in order to pack up, to pumping the volume up a little too loud, to conducting a sit-in that obstructs access on a sidewalk or constitutes a trespass. Countless potential plaintiffs could argue that their injuries — sprained ankles, broken windows, extreme stress — probably would not have occurred had the protest not been at that place at that time, or had police or counter-protesters not responded as they did.

With these costly risks, who would be willing to lead a protest? And, if, in a court’s view, the likelihood of police presence is enough to make protesters liable for violence, nearly any protest could lead to incalculable damages for organizers. Police presence is expected at the vast majority of protests, especially those that draw large crowds or focus on issues of public controversy.

Had this been the rule throughout our history, those leading this country’s seminal protests — from the celebrated civil rights protests of the 1960s to the anti-war protests of the 1970s — could have faced ruinous lawsuits. And, under the Fifth Circuit’s logic, advocates who were prosecuted for violating laws that, once they reached the Supreme Court, were deemed unconstitutional could equally have been burdened. In other words, the same individuals who established core First Amendment precedent — and who the Supreme Court held could not be criminally prosecuted — could have found themselves facing huge civil judgments for their advocacy, including at segregated lunch counters and libraries.

Thankfully, this isn’t how the Supreme Court has ever looked at rules of liability in the context of protected expression. And the Supreme Court should take this opportunity to make clear that it’s not how it looks at those rules now. Otherwise, we may find our streets much emptier.