As any woman who’s ever been pregnant will tell you, those nine months can be a physical roller coaster, with symptoms ranging from nausea to intense fatigue to joint pain to urinary infections.  And that’s just a “normal” pregnancy. Countless women also suffer from complications like hypertension, diabetes, and placenta previa. At the very least, pregnant women need to see their doctors once a month for prenatal care, increasing in frequency to bi-weekly and then weekly in the final stages of pregnancy.  

Consequently, whether it’s because of morning sickness, a delay at the doctor’s office, or pain so severe that she needs to go home before quitting time, pregnancy is virtually assured of interfering with even the most diligent employee’s ability to work her usual hours. That this major medical event might disrupt a woman’s schedule should come as no surprise. But what is surprising is how unforgiving our workplaces are to pregnant workers — and to any worker who fails to be in perfect health every hour of every day. 

Our country’s shameful lack of paid family leave and sick days has been well-publicized. Less well-known is the prevalence of “no-fault” attendance policies, which do not distinguish among the reasons an employee might be late or absent. No-fault policies punish tardiness and absence with demerit “points” and, at a certain threshold, result in termination. 

That’s exactly what happened to our clients Katia Hills and Cynthia Allen, whose pregnancies cost them their sales jobs with AT&T Mobility. Today, the ACLU Women’s Rights Project joined the law firms of Cohen Milstein Sellers & Toll and Indianapolis-based Cohen and Malad to file a nationwide class-action lawsuit charging that AT&T Mobility’s no-fault attendance policies for retail employees violate the Pregnancy Discrimination Act. The suit also brings individual claims on Hills’s and Allen’s behalf under the Family and Medical Leave Act and the Americans with Disabilities Act.  

No-fault policies, also known euphemistically as “maximum leave” or “absence control” policies, have been growing in popularity among employers for decades. But their potential for violating employees’ civil rights has been recognized from the start.  Indeed, the Department of Labor cautioned in 1993 against companies using a no-fault policy to penalize employees for FMLA-qualifying absences — such as to attend to one’s own serious medical condition or to care for a seriously ill family member. The Labor Department still continues to warn employers against assessing points for FMLA-qualifying leave — including “intermittent leave,” which can be as short as a day or even an hour. 

The U.S. Equal Employment Opportunity Commission considers it a violation of the ADA to assign points for tardiness or absence attributable to an employee’s disability, unless permitting the leave would pose an undue hardship to the employer. Employers that ignore this directive can face stiff consequences. In 2011, Verizon paid $20 million to settle the EEOC’s ADA lawsuit challenging the company’s no-fault attendance plan. It’s the largest ADA settlement to date. 

Although precise statistics about no-fault policies’ prevalence are hard to come by, a 2010 survey of over 1,000 human resources professionals found that 40 percent of their employers relied on some form of “absence control.” Meanwhile, a 2006 study of union arbitration proceedings found that terminations or other disciplinary actions for absences caused by personal or family needs featured prominently among the disputes. 

No-fault policies are especially common in low-wage fields, like health care and retail, and in higher-wage, unionized fields, such as construction, janitorial services, and transportation. After all, these are jobs that prize workers’ output over all else — sales numbers, production quotas, customers served. Walmart, the nation’s largest private employer, is currently the target of discrimination charges stemming from its point-based attendance policy, whose many harms to pregnant, sick, and disabled workers and family caregivers were documented in a report by the worker activists and advocacy group, A Better Balance. 

Our lawsuit against AT&T Mobility appears to be the first of its kind: a class-action lawsuit challenging a company-wide no-fault policy on behalf of pregnant workers. For the many employees harmed by the policy at the company, and the thousands more at employers around the country for whom pregnancy and family obligations have earned them a pink slip, we are sending a message: Workers are human beings, not machines.

Are you a current or former retail employee of AT&T Mobility?  Were you fired for points accumulated due to absences, late arrivals, or early departures due to your pregnancy? Contact us here.

Facial recognition technology stars in three recent Hollywood movies: Isle of Dogs, Ready Player One, and Black Panther. In Wes Anderson’s stop-motion near-future Japan, a corrupt mayor uses the technology to capture the Little Pilot who only wants to save his dog. In Steven Spielberg’s dystopic America, a megalomaniacal billionaire uses drones equipped with face scanners to find one of the movie’s heroes as she drives her van through an impoverished futuristic cityscape. And in Ryan Coogler’s Wakanda, the royal technologist’s team uses her facial recognition tool to identify intruders in the kingdom. 

All three films show the ways that facial recognition technology leaves no place to hide — for heroes and villains alike — in a surveillance state of the future. We don’t yet inhabit these imagined worlds, but if we aren’t careful, the reality of ubiquitous tracking via facial recognition isn’t far away. 

Popular technologies are already making use of the tool. Facebook has an advanced facial recognition technology that identifies photo subjects (prompting concern in countries that have yet to adopt the technology). The iPhone X employs Face ID as an authentication tool to unlock devices. At least one major retailer has openly admitted to using facial recognition technology to surveil customers and attempt to identify shoplifters. And an Israeli company is creating a privatized watch list that enables users to scan the faces of strangers and identify “allegedly dangerous people.” These are just a few examples of many more real-world applications of facial recognition technology — including by American police departments. 

These technologies threaten to subject us to perpetual, dragnet surveillance in which we are nonconsenting subjects in a never-ending series of investigations. Our face geometries might be captured, retained, and connected to our real-world identities, and combined with information about our income, education, demographics, health, and other data. Our appearance, preferences, and physical locations could be sold to data brokers and advertisers and used to feed automated decision-making tools that control important decisions around our housing, employment, health care, policing, and much more. We could be digitally tracked based on our political activities, religion, or nationality; misidentified as criminals or terrorists; or otherwise blacklisted. 

The prospect of individualized tracking and misidentification should concern everyone, but it is particularly potent for people of color, who most often bear the brunt of enhanced surveillance. Black and brown people already are overpoliced and face disparate treatment in every stage of the criminal justice system. Facial recognition likely will be disproportionately trained on these communities, further exacerbating bias under the cover of technology. 

But the growing prevalence of facial recognition in film doesn’t mean its use is inevitable or irreversible. We can reject a surveillance infrastructure in which our faces populate government databases. We can also call corporate actors to account. For example, a coalition of civil rights and civil liberties groups — including the ACLU — recently called on Axon, which creates law enforcement technologies, to refrain from outfitting its police body cameras with real-time facial recognition technology. 

We must also ensure that law enforcement acquisition of surveillance technologies does not happen in secret, but is rather subject to vigorous public debate. Residents in cities across the country — including in Oakland, California; Seattle, Washington; Nashville, Tennessee; and Somerville, Massachusetts — have all adopted local ordinances that require an extensive public process to make sure the right questions are asked and answered about any new surveillance proposals.

COMMUNITY CONTROL OVER POLICE SURVEILLANCE

Movies might be less exciting if they focused on the city council meetings, policy conferences, and legislative developments that help preclude the use of surveillance technologies in the worlds the directors have imagined. But if we don’t want our lives to be subject to pervasive, unaccountable surveillance no matter where we go and what we do, then it is incumbent upon us, as concerned individuals and members of our local communities, to demand control over our personal information and to become our own privacy heroes.

Neema Singh Guliani, ACLU Legislative Counsel & Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy, and Technology Project

Securus, one of the country’s largest providers of phone services to incarcerated people, is known for its shady, cruel, and sometimes illegal business practices. It has charged exorbitant rates for prisoners’ calls, limited family and friends to video-only “visits” with incarcerated loved ones, and violated attorney-client privilege by recording phone calls between prisoners and their attorneys. 

This week, Sen. Ron Wyden (D-Ore.) revealed even more troubling practices that undermine the privacy and civil liberties of millions upon millions of Americans. In letters made public on Friday demanding action from the Federal Communications Commission and several major telecommunications companies, Wyden described Securus’ ability to obtain and share the cell phone location information of virtually anyone who uses a phone. 

The letters report that Securus provides correctional facilities with the ability to access real-time location data for virtually any individual in the country — without making sure that officials have obtained a warrant or proper consent. 

Undermining Safeguards Against Warrantless Cell Phone Tracking

Securus provides what it calls “location based services” to its government clients — typically jails, prisons, and related entities. It appears to be doing so in a manner that may violate federal law. 

As described in one Securus document, the company provides the ability to track “the location of a suspect’s cell phone, in real time, regardless of whether a call is in process.” Securus’ materials state that at the request of law enforcement officials, this service has been used to successfully track criminal suspects, people of interest, and even Alzheimer’s patients. But Securus’ system lacks safeguards against illegal tracking. 

Real-time cell phone location tracking of a suspect requires a search warrant under federal law and, as some courts have held, the Fourth Amendment. Normally, when police want to track a suspect’s cell phone in real time, they provide a warrant directly to the phone service provider, which reviews the warrant to confirm that it is valid before complying with the request. The major cellular service providers have law enforcement compliance teams comprised of trained staff who review warrants and other law enforcement requests and regularly reject or narrow requests that are improper or overbroad. 

However, major phone carriers appear to have allowed Securus to bypass these procedures. Government investigators contracting with the company upload documentation justifying a request for cell phone location data to Securus’ system. Securus, functioning as a middleman, pays other middlemen, who then pay major telecommunications carriers for the location information. 

Securus representatives told Sen. Wyden’s office that the company doesn’t actually confirm that the uploaded file is a valid warrant — or a warrant at all. Instead, publicly available screenshots of its online portal show that the company simply requires the investigator to check a box to “certify the attached document is an official document giving permission to look up the location on this phone number requested.” The investigator “then inputs the cellular number that is to be tracked and within seconds, the approximate location of the cell phone will be displayed on a graphical map of the area.”

That system is ripe for abuse. And as the New York Times reports, it was indeed abused as early as 2014, by a Missouri sheriff who, without valid warrants, used it to track the cell phones of a judge and police officers with the state highway patrol.

That sheriff is now facing state and federal criminal charges and a civil suit by highway patrol officers. But Securus may be in legal jeopardy as well, for violating a federal law that prohibits making false representations to a phone company to obtain confidential customer records. That’s because Securus appears to be claiming that the requests are based on a valid warrant, without confirming that is the case. Alternately, as suggested in the above image from Securus’ system and the New York Times’ reporting, the company may be falsely claiming that location requests are justified by phone users’ consent.

Major telecommunications carriers who ultimately facilitate these abuses also deserve blame. In cases where phone companies provide location information, they have a responsibility to ensure that it is only disclosed in appropriate circumstances. It seems highly unlikely that the phone companies are able to confirm “within seconds” that the uploaded documents are indeed valid warrants. This abdication of their responsibility leaves them potentially liable for violating a multitude of laws, including those that prohibit disclosure of customer records to law enforcement without appropriate legal process.

Exploiting Prisoners and Their Families

It’s bad enough that Securus, with the assistance of major telecommunications carriers, has established this backdoor to private data held by telecommunications companies. But the company’s own documents reveal that they also appear to offer additional “location based services” that exploit incarcerated individuals and their families.  

When a person incarcerated in a jail or prison that contracts with Securus makes a call to a cell phone on the outside, Securus is able to obtain the location of that cell phone from the cellular service provider. It then provides that location data to the jail or prison for its unrestricted use. Securus purports to obtain authorization and consent by playing a prerecorded message at the start of a prisoner’s call that tells the person on the other end that their location information will be collected. It then prompts the person to press “1” to accept the call.

For a spouse or child of an incarcerated person, the “choice” between forgoing contact with a loved one or being tracked by Securus is no choice at all. And that tracking falls disproportionately on people of color and poor people, who are most likely to have a loved one locked up. It may also affect attorneys, who have an ethical duty to take their clients’ calls.

Securus is funding this service by tacking a 4 percent “Location Validation Fee” onto prisoners’ already inflated phone bills. That fee is charged whether or not the location tracking capability is actually used for any particular call.

As we’ve argued at the U.S. Supreme Court and elsewhere, cell phone location information is highly sensitive because of what it can reveal about people’s activities and associations. Federal law prohibits service providers from releasing their customers’ cell phone location information without the “express prior authorization” of the customer or a valid court order.  Nevertheless, Securus’ practices functionally deprive individuals of the privacy protections that these laws were designed to create.  

What’s next?

Major phone carriers, the FCC, state attorneys general, and individual correctional facilities must take steps to remedy these exploitative practices.

The phone carriers must take full responsibility for their role in facilitating — and profiting from — Securus’ exploitative services. They should immediately terminate any contracts that allow Securus or companies that provide similar services to access location information. The phone carriers should also get to the bottom of how Securus was allowed to obtain this data in the first place. They should ensure that all law enforcement requests for location data are submitted to and vetted by them directly and information is only disclosed in other circumstances when appropriate.  

In the meantime, customers have a right to know if their information was improperly disclosed. Phone companies should immediately notify any individuals whose information was improperly shared by Securus and develop transparency mechanisms that allow individuals to easily see who else may have been given access to their data.

The FCC should also immediately investigate Securus and any companies that provide similar services. It should make clear that this conduct, which essentially coerces individuals into “consenting” to location tracking or other surveillance, and which fails to confirm the validity of search warrants before tracking people’s cell phones, raises serious questions under existing federal law and must be halted. Additionally, they must take steps to ensure that telecommunications providers themselves adequately safeguard data from this type of abuse. 

At the same time, state attorneys general should examine Securus and major telecommunications companies to determine whether they are in violation of state privacy laws. While these inquiries are ongoing, facilities should halt their Securus contracts, and ensure that individuals contacting incarcerated loves ones are provided a realistic way to opt out of location surveillance.

We applaud Sen. Wyden for bringing these practices out of the shadows and hope that real reforms follow quickly.