Agonized screams of immigrant children begging for their forcibly separated parents are now our most direct experience of horrors perpetrated by the Trump-Sessions-Nielsen family separations policy. Amidst the kids’ unforgettably sad, piercing cries on the recording, something else stands out: a Border Patrol agent’s Spanish commentary. “Well, we have an orchestra here,” he jokes. “What’s missing is a conductor.” 

Agents are also verbally abusive. Parents are“called filthy and stinky and ... mocked for crying,” according to Rep. Pramila Jayapal, who visited detained mothers. “One woman said ‘I want to be with my children’ and the Border Patrol agent said: ‘You will never see your children again. Families don’t exist here. You won’t have a family anymore.’” 

A lawsuit filed this week by Texas RioGrande Legal Aid argues that some Border Patrol agents “sadistically tease and taunt parents and children with the prospect of separation, and do so using words and tones indicating that Defendants’ employees and agents enjoy the pain and suffering that the very idea of separation causes to parents and children.” While many agents strive to live up to their motto, Honor First, that is an aspiration badly corroded by family separations. 

Trump’s executive-order pretense of halting the traumatic chaos inflicted on thousands of parents and their children — 2,342 during 36 recent days alone — doesn’t hold water. So many of those kids are still without their parents, and Trump’s proposed construction of massive family jails is itself an inhumane, and wastefully expensive, way forward.

It’s all the more dismaying in this context that the Senate Appropriations Committee on Thursday voted 26-5 — all but Sens. Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.), Jeff Merkley (D-Ore.), Brian Schatz (D-Hawaii), and Tom Udall (D-N.M.) — to approve a DHS budget for the next fiscal year, which includes 375 new Border Patrol agents and $1.6 billion toward Trump’s wall. The bill is opposed by the ACLU and a host of our coalition partners, all disappointed that the department’s budget isn’t being reduced at a time when Trump’s deportation force is so clearly out of control. While it’s evident that not all senators who supported this budget approve of more Border Patrol agents or Trump’s folly of wall construction, this was a missed opportunity to take a strong stand against DHS’s excesses and sends exactly the wrong message to immigrant and border communities.

The budget process should be a means of achieving DHS accountability, with reduced funding and increased oversight. CBP leadership, for example, needs to immediately address basic questions about family separation, most importantly who separates children from their family and how. One distraught father committed suicide after Border Patrol ripped his 3-year-old son out of his hands.

Community groups in South Texas express concern about how Border Patrol agents and even transport contractors are involved in the nightmarish separation process. For example, G4S personnel, who work for a multinational with lucrative DHS contracts, tout the company’s work as “The Bus No One Wants to Catch: The End of the Road for Illegal Immigration.”

In multiple interviews, Border Patrol Rio Grande Valley Sector Chief Manuel Padilla evaded answering whether his agents — who appear to have received no trauma-informed training — told parents their son or daughter is going for a bath, never to return. CBP Commissioner Kevin McAleenan asserts that the agency uses the “most humane and civilized way” to separate families: It’s far past time to explain what that is and whether child-welfare professionals approve of CBP’s methods.

There must also be discipline for vile comments degrading migrants or giving them intentionally incorrect understandings of the law, like saying that America is closed for asylum. CBP leadership calls these “anecdotal,” but it has put out no public statements from the chain of command condemning them or established professional expectations for agents in an era when Trump’s “the handcuffs are off” message is heard loud and clear. 

And the CBP role in family separations, denounced by the American Academy of Pediatrics as a form of child abuse, needs independent and searching investigation from Congress, not more money for enforcement. In this vein, the ACLU published a report last month questioning DHS’s handling of alleged child abuse incidents committed by Border Patrol agents from 2009 to 2014. With Trump in office, CBP oversight and accountability need to be ramped up, not sacrificed at the altar of compromise.

Exactly how kids have been taken away from their parents is one of many questions that CBP leaders need to answer honestly. While CBP asserts that ports of entry are accessible for asylum-seekers, copious evidence exists to the contrary. Instead, people are forced to wait for days or weeks just to make a claim. Congress should require CBP to explain why it has not asked for more port of entry resources instead of Border Patrol expansion. Legislators should also ask what the agency is doing to address “capacity issues” that look like an excuse to make asylum claims more unpleasant, thereby counterproductively forcing many migrants to cross unauthorized. 

These habits of obfuscation and opacity delegitimize the agency and demand a very different reaction by Congress. Legislators should be defunding DHS, not adding more Border Patrol agents at a time when the average agent apprehends two people a month, many of whom turn themselves in to seek protection as soon as they reach the United States. 

We call on the wider Senate and the House of Representatives to change course from the DHS budget approved by one committee and to reject more agents for Trump’s deportation force, wasteful wall funding, and record-level family and other immigration jails. There must also be an independent inquiry addressing the family separation policy’s dreadful methods and consequences. 

Anguished children by the thousands deserve better from CBP and from Congress.

In a pair of religious freedom rulings this month, the Supreme Court took dramatically different approaches to a basic constitutional question: When does anti-religious hostility by government officials violate the religious liberty guarantees of the First Amendment?

The wildly divergent results in those two high-profile cases — Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Trump v. Hawaii, the Muslim ban case — send troubling mixed messages, which threaten to undermine religious freedom, fairness, and equality for all.

In a deeply divided 5-4 decision handed down on Tuesday, the court upheld President Trump’s Muslim ban, allowing the federal government to target Muslims worldwide based on unfounded fears and bare religious animus. In the face of Trump’s repeated, unambiguous statements condemning Islam and Muslims, the Supreme Court essentially gave the president a free pass to vilify an entire faith and enshrine that bigotry into national immigration policy.

The short and stormy history of the policy is, by now, well known: On the heels of Trump’s central campaign promise of a “total and complete shutdown” of Muslim immigration, he issued a series of travel bans, using territory as a proxy for religion and imposing severe, indefinite entry restrictions on individuals from certain Muslim-majority countries. In upholding the latest version of the ban, the court effectively ignored the overwhelming evidence of unmistakable anti-Muslim bias underlying the policy, crediting superficial changes the president made in response to court rulings that blocked earlier versions of the ban. As a result, the ban will continue to upend people’s lives, tear apart families, and send a disgraceful message that Muslims are not welcome here.

The Muslim ban decision comes only weeks after the Supreme Court, in the Masterpiece Cakeshop case, bent over backwards to find religious hostility, despite a much weaker factual record. In Masterpiece, the court ruled in favor of a Christian-owned bakery in Colorado that had refused to sell a wedding cake to a gay couple on the same terms as all other customers.

In that case, the court found religious animus based on three pieces of flimsy evidence: First, it noted that in public hearings on the bakery’s discrimination, one of the seven Colorado civil rights commissioners said that “it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.” The court also cited another commissioner’s statement that the bakery’s owner can believe “what he wants to believe,” but he can’t act on that belief “if he decides to do business in the state” — a statement that even the majority opinion conceded was “susceptible of different interpretations.” Finally, the court saw evidence of religious hostility in the state commission’s refusals to pursue complaints against three other bakeries that had declined to make cakes with anti-gay messages.

Taken together, those three examples amount to very little. The commission’s dismissal of complaints against the other bakeries merely reflected the fact that, unlike Masterpiece Cakeshop, those businesses didn’t violate the state’s civil rights law, as the bakeries would have declined to make the requested anti-gay cakes for any customer, regardless of the customer’s faith. As for the commissioners’ statements, the use of the term “despicable” was unfortunate, but it’s well-settled constitutional law that religion can’t be invoked to harm others and that businesses can’t use religion to avoid complying with neutral anti-discrimination rules. 

In any event, even if the commissioners’ statements had demonstrated some religious hostility, the statements cited by the Supreme Court were made by only two of the seven-member civil rights commission, and they occurred in only one stage of an extensive, multi-layered process that also included independent decisions by the Colorado Civil Rights Division, an administrative law judge, and the Colorado Court of Appeals. As Justice Ginsburg, joined by Justice Sotomayor in dissent, explained, “Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome [the baker’s] refusal to sell a wedding cake” to the same-sex couple.

Fortunately, the Masterpiece Cakeshop decision rested on extremely narrow grounds, with the court focusing heavily on the supposed evidence of bias against the bakery owner’s Christian faith. The bakery — with support from the Trump administration — had sought a much broader ruling, one that would have created a new, sweeping First Amendment right to discriminate in the marketplace. But the court declined the invitation, basing its decision on the unique facts of the case and reiterating the “general rule” that “religious and philosophical objections ... do not allow business owners ... to deny protected persons equal access to goods and services.” So, while the business won the battle in Masterpiece, it lost the larger war over discrimination in public accommodations. 

Still, the court’s aggressive efforts to root out anti-Christian animus by the Colorado Civil Rights Commission were notable, especially in light of its decision today to ignore far more compelling and egregious religious hostility in the Muslim ban case.

In contrast to Masterpiece Cakeshop, the evidence of anti-religious animus in the Muslim ban case is unambiguous and consistent. And it all flows from President Trump, the person singularly responsible for the policy. Throughout his presidential campaign, Trump explicitly and repeatedly disparaged Muslims and Islam — saying, for example, that “Islam hates us” and “we’re having problems with Muslims coming into the country.” He also formally called for a “shutdown of Muslims entering the United States” in a statement that remained on his campaign website well into his presidency. 

Just one week after his inauguration, the president put that call into action with an executive order that targeted Muslim-majority countries and included thinly veiled attacks on Muslim communities at home and abroad. Trump confirmed that countries were simply used as a stand-in for religion in the ban, explaining that he had moved to “talking territory instead of Muslim” because “[p]eople were so upset when I used the word Muslim.” Lest there was any doubt about his intent, Trump proudly proclaimed on a national Christian broadcast network that the order was crafted to favor Christian over Muslim immigrants. Indeed, nearly all — over 97 percent — of the hundreds of millions of people affected by the initial version of the ban were Muslim. 

Later versions followed the same basic blueprint, and the president has continued to demean Muslims and their faith throughout the process. Among other statements, he endorsed a false story involving General Pershing and the supposed massacre of Muslims dipped in pigs’ blood. More recently, the president personally retweeted a series of flagrantly anti-Muslim videos, which his administration then expressly connected to the Muslim travel ban. Throughout the entire process, whether discussing the ban or Islam in tweets or in the press or defending it in court, Trump has never retreated from or apologized for any of his blatantly anti-Muslim rhetoric. 

In Masterpiece Cakeshop, the Supreme Court relied on meager evidence of bias to hold that government disparagement of religion is “inappropriate for [an official] charged with the solemn responsibility of fair and neutral enforcement” of the law. If the thin record in Masterpiece supports a finding of impermissible hostility, then the mountain of unapologetic, cruel statements from the president in the Muslim ban case surely do, too.

Remarkably, in upholding the Muslim ban, the court didn’t even try to reconcile the two cases. In fact, neither the majority nor concurring opinions even cited the Masterpiece Cakeshop decision (though the dissents certainly did). Instead, a majority of the court merely declared that because the Muslim ban arose in the context of immigration and national security, it enjoys the most deferential level of judicial review. In other words, once the court concluded that the government’s claimed nonreligious reasons for the ban were “plausible,” it treated the president’s explicit, unequivocal, anti-Muslim animus as irrelevant. But as Justice Sotomayor explained in dissent, not only is the majority’s application of a different standard in this context wrong, but the Muslim ban fails to meet even the low bar of the “rational basis” review that a majority of the court purported to apply.        

In Masterpiece Cakeshop, the Supreme Court emphasized that fundamental religious freedom “bars even subtle departures from neutrality on matters of religion.” The First Amendment, the court explained, “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”

If only the Supreme Court had applied that standard a few weeks later to the president and his Muslim ban.

In 2017, Apple received 8,929 demands for user information from the government. Google received 32,877. These are just a fraction of the demands made public and may not include one potential government surveillance tool: forcing software developers to install malicious software updates on individual users’ devices to potentially bypass passcodes and encryption, turn on cameras and microphones, or track someone’s location.

Whether you know it or not, you are almost certainly updating software regularly on your computer or mobile phone. Seamless software updates are one of the most important successes in improving cybersecurity in recent years. Updates fix vulnerabilities and make individual systems more secure, and therefore strengthen the entire digital ecosystem, which is only as strong as its weakest link. But they only work if users install them.

If users lose trust in software updates due to fears that the government is using them to break into devices, vulnerabilities won’t be patched. This will endanger entire networks and leave them vulnerable to cyber attacks.

Software developers are users’ first line of defense against unlawful government encroachment into their devices. It’s a challenging responsibility, but one that is critical to the integrity of the digital ecosystem and the privacy of users within it. That’s why, as law students in the NYU Technology Law & Policy Clinic, we have worked with the ACLU to put together a guide for software developers on how to make informed decisions about protecting the integrity of software update channels, both legally and technically.

Our Full Guide For Software Makers is Here

One way to conceptualize the software update system is by thinking of them like immunizations. Like immunizations, people need to trust updates to get updates. But when the CIA organized a fake vaccination drive in Pakistan to collect DNA samples to help its search for Osama Bin Laden, the operation compromised many Pakistanis’ trust in public health workers. A crackdown followed, with global health organizations under suspicion, some medical workers murdered, and cases of polio surging. The lack of trust resulted in the spread of preventable diseases, just like a lack of faith in software updates will spread computer viruses. (The CIA appears to have learned its lesson, saying that it will not use vaccination drives for covert operations again.)

The chances of tech companies receiving a government order to build malicious software updates are very real, and they are likely growing. Many of the government’s surveillance demands come with a non-disclosure requirement, meaning that companies are forbidden from revealing the mere existence of the demands — and even if they could, they may not get the national attention that Apple’s refusal to comply with a government order received following the San Bernardino shooting.

While there has been little public documentation that this method being used, it is technically feasible for most applications and programs, and it is in line with government’s practice of seeking third-party assistance in other surveillance contexts. Also, in light of companies closing technological loopholes through improved security, law enforcement continues to search for alternate vulnerabilities to exploit. As other backdoors in encrypted devices are closed, the software update system will be an increasingly appealing option to law enforcement. This presents many dangers, including serious privacy and cybersecurity concerns.

While the government may justify these tactics by citing national security and overblown fears that improved encryption will lock law enforcement out of electronic devices, these concerns are often overstated. Despite the technology industry’s best efforts to maintain information privacy and security, law enforcement has access to more information about us as our social interactions have become increasingly mediated by technology. Text messages, online chats, social media posts, and more can all be accessed by law enforcement during an investigation.

Software makers should not wait to receive this type of novel software update in order to think about how to respond, and our new guide for tech companies and software developers includes detailed tips on how to prepare. One way is to implement privacy-minded technical designs that limit the possibilities of what can be done — even with a government order. Another is to plan for what to do if something like this happens, and to talk to an attorney about options for fighting back.

Technology has given the government more surveillance power than ever before. It's imperative that we not let law enforcement further compromise our privacy and security by letting it misuse a feature as critical as the software update system.