By Chad Marlow, National ACLU Senior Policy Counsel

Four and a half years ago, the use of surveillance technologies by local police and governments was growing exponentially. There were many factors behind this rapid growth, but the two most significant were (1) the ever-increasing pool of federal grant money that was being made available for surveillance tech purchases, and (2) that in almost every jurisdiction, local police were empowered to make decisions about acquiring and using surveillance technologies unilaterally and in secret. Because it is hard to oppose a specific local surveillance tech acquisition when you don’t know it’s happening, surveillance tech use by local police was turning into a runaway train.

While this trend was worrisome enough unto itself, another inescapable fact made it even more troubling: Namely, while police and government surveillance negatively impacts everyone, it does not impact everyone equally. Specifically, dating all the way back to New York City’s pre-revolutionary lantern laws, surveillance — like policing itself — has been used to disproportionately target people of color.

These realities raised a challenging question: If the ACLU was going to seek to disrupt the growing use of surveillance technologies on the local level, what would a new approach look like? Put another way, if we were going to take decisions about acquiring and using surveillance technologies out of the hands of the police, who then should be empowered to decide if and how surveillance technologies are used and how would the new model work?

Surveillance — like policing itself — has been used to disproportionately target people of color.

The most just and equitable answer to that question is that the people and communities most impacted by surveillance should have the greatest influence over surveillance technology decisions.

Having arrived at that answer, the next question was how we could most effectively empower local communities to influence surveillance technology decisions. Having local communities vote on every proposed surveillance technology acquisition presented the most direct route to such empowerment, but such frequent ballot measures would be expensive, cumbersome, and open to manipulation by those who formulated the ballot language. The next best approach, which the ACLU arrived at after examining and building upon some innovative legislation from Santa Clara County, California and seeking advice from 17 national partner organizations, was to pursue local legislation that would shift the existing, secretive acquisition processes into one that is transparent and driven by community opinion.

Specifically, this new, transparent process would require that (1) the public be provided with substantial, detailed information about a proposed surveillance technology and how it is proposed to be used well before any funding, acquisition, and deployment decisions are made, (2) the public is given ample opportunity to form opinions, organize, and express those positions in public hearings before their local elected representatives, and (3) those democratically accountable elected officials — most often city councilmembers — would replace the police in having the final say on if and how surveillance technologies are used, knowing that if they take a position contrary to that of their constituents, it could cost them their jobs. While this approach was imperfect in the same way democracy is imperfect, it offered a powerful platform from which the people could question, limit, and even reject the local use of surveillance technologies. And that is how the Community Control Over Police Surveillance (CCOPS) effort was born.

Today, we celebrate the adoption of our 20th and 21st CCOPS laws by the cities of Dayton and Detroit. This milestone was achieved by passing CCOPS laws at an astounding rate of one new law every 2.67 months. As a result, more than 17 million residents, along with countless visitors and undocumented persons, now have a meaningful say over, and real opportunity to reject, the use of intrusive surveillance technologies.

This achievement could not be more important as the ACLU, its members, and our allies embark on the fight for systemic equality in 2021 and beyond. Systemic equality does not permit around-the-clock monitoring of communities of color, so their residents feel like they live in open air prisons. Systemic equality does not accept the massive surveilling of communities of color so minor infractions, which would go largely unnoticed in whiter communities, regularly result in police interventions. Systemic equality does not permit faulty technologies, like facial recognition and predictive policing, to drive the false arrest and imprisonment of Black and Brown people, because doing so is considered acceptable (or even intended) collateral damage in the fight against crime. Finally, systemic equality rejects the disproven narrative that surveillance technologies prevent people from becoming crime victims when, in fact, it regularly victimizes persons of color.

More than 17 million people now have a meaningful say over the use of intrusive surveillance technologies.

In places where CCOPS laws exist and government surveillance tech secrecy has given way to transparency, impacted communities now have a meaningful chance to debate and push back against the deployment of surveillance technologies. (Most CCOPS laws, per the ACLU model bill, require existing techs to get council approval or have their use discontinued.) In some cases, as with San Francisco’s ban on government facial recognition, CCOPS laws have chosen to reject certain surveillance techs at their inception. We have even noticed police internally rejecting the use of a surveillance technology because they knew the blowback during a CCOPS review would be overwhelming. Such important protections should extend beyond those who live in one of CCOPS’ 21 jurisdictions.

We may have a long way to go before CCOPS laws protect every or even a majority of persons in America, but we are off to a strong start. Whereas CCOPS bills were once sold as a new approach to local surveillance oversight and community empowerment, they are now recognized as the prevailing gold standard. And while we once had to explain what CCOPS was and even how it’s acronym is pronounced (it’s see-cops), CCOPS has now been the subject of articles detailing how its laws are formulated and have spread, how we can most effectively center racial justice considerations during the CCOPS review process, and how the CCOPS campaign itself was developed and operates. By design, the CCOPS effort is decentralized, so over the years we have seen successful CCOPS efforts led by the ACLU and our affiliates, local CCOPS coalitions, and by local activists who discovered the CCOPS website’s resources and ran with them to victory.

At this milestone moment, we pause to celebrate our achievements and all those who help us reach them. After some COVID-appropriate high fives, however, we will turn our thoughts back to those who are not yet protected by CCOPS laws. CCOPS has come a long way, but there’s still a long way to go. Time to get back to work.

By Paige Fernandez, National ACLU Policing Policy Advisor & Nicole Zayas Fortier, National ACLU Policy Counsel

On March 13, 2020, Louisville police officers killed Breonna Taylor, a Black medical worker, during a botched no-knock raid on her apartment. Her death was one of the thousands of police killings that drove the largest protests in American history that spring and summer over policing and racism in the United States. But as demonstrators continued to march in Louisville’s streets, the local Fraternal Order of Police entered into secret negotiations with the city on their next contract, and used that opportunity to lobby for extraordinary protections for officers that would block any meaningful changes to how Louisville approaches public safety.

Unfortunately, this practice isn’t isolated: Nearly half the states in the U.S. have laws granting police special protections from investigation and discipline. And in the 46 states that allow police to collectively bargain, 84 percent of police contracts impose at least one significant barrier to disciplining police and fostering genuine public safety, including granting their lobby undue influence over the department budget and scale.

To truly ensure police do not continue to act with impunity and in order to scale back the role of police in society, we must address the ways that police lobbyists consistently undermine reform efforts at closed-door collective bargaining tables, in state capitols, and in local and state elections. To create and foster the genuine public safety BIPOC communities are demanding, the ACLU is launching a campaign today to expose the lobbying power of police. This campaign will help dismantle the legal and contractual protections from state laws and local contracts granted through police lobbying power that protect officers with special rights from punishments and consequences, and block our ability to generate holistic public safety systems.

This campaign cannot wait. Police violence is an all too common form of homicide in the United States: In 2020 alone, police killed 1,127 people. There were only 18 days that year in which a police officer did not kill someone. Black people are three times more likely to be killed by police than white people. In fact, police violence is a leading cause of death for young Black men in the United States; over the course of their lives, about one in every 1,000 Black men can expect to be killed by police.

While this is far from a new crisis, widespread use of technology to capture and spread footage of police use of force and killings over social media has forced many more people to acknowledge the scope and depravity of police violence. Major media outlets now regularly cover police violence, and advocates loudly demand bold advances in reducing the role, resources, and power of the police.

Police lobby for a status quo that protects them instead of the people, in ways that are extremely problematic and harmful to the communities they purport to serve. When negotiating with city and county officials for local union contracts, police lobby for contract provisions that shield their officers from discipline, allow for police departments to act without any transparency or oversight, and preemptively rule out many of the changes communities are demanding. These contracts can:

• Ensure that a bulk of local funding is dedicated to police, thereby neglecting other critical social services and resources;
• Destroy disciplinary records over time so that no one — including the public and future employers — can discover an officer’s previous misconduct;
• Delay interviews of officers who injured or killed someone so they can “cool off” and restrict how long an officer can be interrogated, who can interrogate them, and the types of questions that can be asked; and
• Give officers unfair access to information while they are under investigation, including body cam footage, statements of witnesses, and other crucial pieces of evidence.

In state capitols, police lobbyists are extraordinarily successful at convincing state legislators to kill bills that would reduce the role and power of police and pass legislation that ties the hands of local officials by codifying statewide discipline-evading provisions through Law Enforcement Officer Bill of Rights (LEOBOR) laws. Their success at securing these protections should come as no surprise. Police lobbyists spend millions each year to influence politicians, then leverage that influence to block efforts to hold the police accountable and rig the system in favor of officers who engage in misconduct.

Police lobbyists exert largely unseen yet enormous power over elected officials and over the state of public safety in the U.S. Enough is enough. It’s far past time to limit the power of police lobbyists to dictate what public safety looks like. Police violence is its own threat to the safety of community members: There is no public safety if we don’t know which cops kill community members, there is no public safety if police are able to keep their jobs after injuring or killing community members, and there is no public safety when police misconduct is nearly impossible to punish. We need to protect people, not police lobbyists.

David Cole, National ACLU Legal Director

Has the ACLU lost its way? This appears to be a perennial question. In 1994, then-ACLU President Nadine Strossen wrote a 17-page article with 54 footnotes, responding to the charge that the organization “is abandoning its traditional commitment to free speech and other classic civil liberties and is becoming a ‘trendy’ liberal organization primarily concerned with equality and civil rights.” Sixteen years before that, in 1978, J. Anthony Lukas wrote a feature for The New York Times Magazine titled “The ACLU Against Itself,” recounting the controversy over whether the group should have represented a group of Nazis who sought to march in Skokie, Illinois. The question is not new.

But the answer remains the same. The ACLU is committed to the principle of free speech today, just as it was in the 1990s, 1970s, and long before that. And we are specifically committed to the proposition that the First Amendment’s guarantees (like those of the rest of the Constitution) apply to all, not just to those with whom we agree. At the same time, the ACLU also remains devoted to defending other fundamental civil rights and civil liberties, including equal protection of the law — as we always have been. Addressing the tensions that sometimes arise between these commitments is not easy. But we seek to do so, today as always, not by abandoning any of our core commitments, but by acknowledging and confronting the conflicts in as forthright, inclusive, and principled a way as we can.

Some have charged that in doing so we have abandoned our fidelity to the First Amendment in the years since our representation of a white supremacist protester in Charlottesville. In that case, we challenged the revocation of his permit to protest the removal of a monument to Confederate General Robert E. Lee. The protest turned violent, the police failed to intervene, and ultimately one of the alt-right adherents, Alex Field, rammed his car into a group of counter-demonstrators, killing one person and injuring 19 others. The Charlottesville tragedy and the ACLU’s role in defending the protesters’ permit led to considerable controversy, inside and outside the ACLU.

In its wake, I led a committee representing a wide range of divergent views within the ACLU in developing guidelines for selecting cases where they present conflicts between values that the ACLU defends. We reaffirmed in that document that “As human rights, these rights extend to all, even to the most repugnant speakers — including white supremacists — and pursuant to ACLU policy, we will continue our longstanding practice of representing such groups in appropriate circumstances to prevent unlawful government censorship of speech.”

At the same time, we acknowledged the costs that can come with that representation, including to other interests and work of the organization, and outlined ways to address and mitigate the costs when we do decide to embark on that representation. That can mean making clear in public statements that we abhor the speakers’ views even as we defend their right to express them, supporting counter-protesters, and investing any attorneys’ fees we obtain in connection with the work to advance the views that the speaker opposed and that we support. Some saw even this document’s acknowledgment of the complexity of such work as an abandonment of principle, but we saw it as an honest effort to confront the challenge of being a multi-issue organization.

Some of our critics argue that by considering the content and impact of the speech in assessing how to proceed, we are walking away from a commitment to all free speech. That’s an ahistorical and overly simplistic analysis of our free speech work: One must consider the content of the speech and the nature of any regulations to assess whether a First Amendment claim is likely to prevail. Thus, we considered the content of speech in choosing to defend the Nazis in Skokie in the 1979; in representing NAMBLA when it was sued in 2000 for allegedly inciting a murder; in filing a brief in the Supreme Court supporting the Westboro Baptist Church’s anti-gay protests in 2010; and in filing another Supreme Court brief in 2014 supporting the First Amendment rights of a man charged with threatening his ex-wife on the internet. The guidelines we adopted did not change our policy, and in fact reaffirmed it. Instead, they merely codified our best practices, and sought to provide guidance and a process for assessing future cases that involved conflicting ACLU commitments.

One thing we rejected was any abandonment defending those with whom we disagree. Yet a small number of disgruntled voices continue to charge that we have done just that. But the record demonstrates otherwise. Since 2017, we have supported the constitutional rights of the NRA, the Koch-funded Americans for Prosperity Foundation, anti-Semitic protesters, Trump supporters, Trump himself, Republican challengers to a Democratic gerrymander, right-wing provocateur Milo Yiannopoulos, and conservative and anti-gay student groups, to name but a few. We have filed multiple Supreme Court briefs with the Cato Institute, the American Conservative Union, and the Institute for Justice. Here is just a sample of the work we have done since 2017 in which we have defended or stood alongside conservative voices and groups, because we believe constitutional principle demanded it, even if we disagreed with what the groups and individuals had to say.

2017

• We challenged the D.C. Metro’s refusal to post an advertisement for alt-right provocateur Milo Yiannopoulos’ book;
• We defended Donald Trump’s speech rights when he was charged with inciting violence at a Trump campaign rally;
• We filed an amicus brief in the Supreme Court in support of a tea party supporter challenging a ban on wearing political insignia or apparel at polling places;
• With the NRA, we supported a federal law that reduced obstacles to people with mental illness to buy guns, which we viewed as harming people with disabilities; and
• We advocated in defense of the First Amendment rights of a Columbus City Schools employee who posted an anti-gay slur on Facebook, and who faced being fired for doing so.

2018

• We filed an amicus brief supporting the NRA’s First Amendment challenge to Gov. Andrew Cuomo’s directive to New York financial services organizations to reconsider the “reputational risks” of doing business with the NRA and other gun rights groups;
• We filed an amicus brief supporting Republican voters’ constitutional challenge in the Supreme Court to a Maryland partisan gerrymander that created a Democratic district for which one of our biggest donors, David Trone, was running, and ultimately won; and
• We sent a public demand letter to the Vermont governor, asking that he to stop banning gun-rights activists who posted negative comments, almost entirely political, on his official page.

2019

• We challenged Arkansas State’s “free speech” zones as applied to a homophobic and racist student organization;
• We won an appeal in the U.S. Court of Appeals for the Ninth Circuit (Koala v. Khosla), on behalf of a conservative student magazine denied funding by the University of California at San Diego after they published a story mocking “trigger warnings” and “safe spaces”; and
• We filed comments on Education Secretary Betsy DeVos’ Title IX rule that supported fair process requirements for live hearings, cross-examination, access to all the evidence, and delays in proceedings if the student accused of wrongdoing also faced a student criminal investigation, even as we criticized the rule for reducing the obligations of schools to respond to reports of sexual harassment.

2020

• We filed a brief in Michigan supporting anti-Semitic protesters picketing in front of a synagogue on the Sabbath;
• We filed an amicus brief in the Supreme Court with the conservative Americans for Prosperity Foundation and the Institute for Justice in support of a case challenging a free speech zone by an evangelical Christian, represented by Alliance Defending Freedom;
• We represented a number of voters, including a Republican, to defend drive-thru voting, which was set up in Houston in November to enable safe voting during the pandemic;
• We filed an amicus brief in the Supreme Court supporting a Catholic school’s religious right to discriminate in the hiring and firing of a teacher with significant religious responsibilities;
• We sent a letter on behalf of a Trump supporter in Georgia who was being criminally prosecuted for flying a flag on his own property that said, “Trump 2020: Fuck Your Feelings.” Charges were dropped after the prosecutor received our letter;
• We protested New York Attorney General Letitia James’ effort to shut down the NRA based on the wrongdoing of some of its leaders as a violation of the right of association;
• We filed a brief in the Supreme Court with the Cato Institute, the Institute for Justice, the R Street Institute, and the Rutherford Institute on behalf of property rights of people declaring bankruptcy; and
• We filed an amicus brief in Esshaki v. Whitmer in support of a conservative Republican candidate for Congress who was challenging a signature collection requirement in the midst of the pandemic. The ballot access restriction favored the incumbent, a Democrat in a toss-up congressional district.

2021

• We filed a Supreme Court brief supporting the conservative nonprofits Americans for Prosperity and the Thomas More Society in a challenge to California’s donor disclosure rule as violating the First Amendment;
• We filed two Supreme Court briefs (here and here) with conservative organizations, including the Cato Institute, the American Conservative Union, R Street, and the Rutherford Institute, in cases challenging warrantless searches of homes;
• We sent a letter after the Capitol insurrection to U.S. Department of Interior opposing D.C. Mayor Muriel Bowser’s suggestion to cancel all permits through President Biden’s inauguration; and
• We questioned Twitter and Facebook’s bans of President Trump’s account.

Over the same period, the ACLU also represented many liberal and progressive groups and individuals in First Amendment and other cases, including: Deray McKesson, a Black Lives Matter activist sued for injuries caused by someone else in a protest that McKesson allegedly led; protesters tear gassed outside the White House to clear the way for a President Trump photo opportunity during last summer’s protests provoked by the killing of George Floyd; and supporters of a boycott on Israel. We also represented individuals who engaged in speech that was not political at all, including a pending Supreme Court case involving a high school freshman suspended from the high school cheerleading team for saying “fuck school fuck softball fuck cheer fuck everything ” on her personal Snapchat on the weekend.

In our view, the First Amendment protects everyone, whether you are on the left, the right, or somewhere in between. For a century, the ACLU has not only defended that right on behalf of others, but has exercised the right in all that we do. It’s the First Amendment that protects our organization’s rights to speak out, to organize, to demonstrate, and to petition for a redress of grievances. It’s the lifeblood of democracy, and the oxygen of a civil society. And most important, the First Amendment is what ensures that those without political power can work to demand justice. At the end of the day, that’s why we believe the First Amendment has to protect everyone — and why we remain committed to defending even the rights of those with whom we disagree.