ACLU-NJ News - Privacy

ACLU-NJ Seeks to Join Free Speech Lawsuit Against Newark

NEWARK, NJ -- The American Civil Liberties Union of New Jersey (ACLU-NJ) today moved to join a federal lawsuit filed against the City of Newark for disciplining a police officer who anonymously posted a message on a website that was critical of the Newark Police Department. The lawsuit also challenges the action of Newark police in improperly obtaining a subpoena to require an Internet Service Provider to turn over the identity of the then-anonymous web poster.

"Public employees have the right to speak openly about matters of public concern, and the right to do so anonymously on the web, if they choose" said ACLU-NJ Legal Director Ed Barocas. "In this case, the Newark Police Department violated both of those rights."

In February of 2006, the plaintiff in the case, Officer Louis Wohltman, anonymously posted messages about the integrity and competence of the Newark police department on http://www.newarkspeaks.com a website on which people engage in dialogue about local issues.

Due to the fact that Newark Police Department supervisors apparently disliked the content of the anonymous web messages they went to great -- and ultimately illegal -- lengths to uncover the identity of the web poster. Despite the fact that what Wohltman wrote did not amount to an illegal threat, the police department improperly used the criminal grand jury subpoena process to obtain Wohltman's identity. Then, the department suspended Wohltman for nine months without pay for making the critical statements.

This is the second time in as many weeks that the ACLU-NJ has become involved in a case in which the Newark Police Department allegedly tried to suppress citizens' First Amendment rights. Last week, the ACLU-NJ, along with the Seton Hall Center for Social Justice, filed a lawsuit (Lima v. Newark Police Department) against the Newark Police Department on behalf of newspaper editor Roberto Lima, whom police arrested and held in custody until he relinquished photos his staff took of a dead body found in a Newark alleyway.

The case involving Officer Louis Wohltman is captioned Wohltman v. The City of Newark, et al., and was filed in the United States District Court in Newark. The ACLU-NJ's filing today is to request permission to participate in the case as amicus curiae ("friend-of-the-court") and to provide the court with the legal context in which to analyze the facts of the case.

Louis Wohltman is directly represented by Frank Corrado of Barry, Corrado, Grassi & Gibson, as well as by Rubin Sinins of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins.

ACLU Applauds Governor Corzine's Signing of Pharmacy Bill

TRENTON, N.J. -- The American Civil Liberties Union of New Jersey today applauded Governor Jon Corzine's decision to sign a bill into law that will help ensure women's ability to access birth control at the pharmacy. The bill, sponsored by Senator Fred Madden and Assemblywoman Linda Stender, makes New Jersey one of a handful of states to protect patient's ability to access prescriptions at the pharmacy.

"Today's law strikes an important balance between protecting patient's health and religious freedom," said Deborah Jacobs, executive director of the ACLU-NJ.

The pharmacy access law requires pharmacies to fill prescriptions for in-stock drugs or devices without undue delay, despite the sincerely held moral, philosophical or religious beliefs of an individual pharmacist. Pharmacies employing pharmacists who object to filling prescriptions can accommodate the objection so long as the pharmacy ensures that customers receive their prescriptions, including birth control, at the pharmacy without undue delay.

"Access to safe and effective contraception is a central component of basic health care for women," said Jacobs. "This law will go a long way toward ending sex discrimination at the pharmacy."

The ACLU's long-held advocacy for both reproductive rights and religious liberty uniquely positions the organization to address this issue. In April, the ACLU released a report, "Religious Refusals and Reproductive Rights: Accessing Birth Control at the Pharmacy," which examines legal questions raised when a pharmacist or pharmacy refuses to provide contraception based on a religious objection.

The report is available online at: http://tinyurl.com/2pms2q

ACLU Welcomes Representative Holt's Stand on the Fourth Amendment

Washington, DC - Today the American Civil Liberties Union welcomed proposed legislation from Representative Rush Holt (D-NJ) that would protect vital constitutional rights. The bill, "The FISA Modernization Bill of 2007," counters the Democratic leadership's "RESTORE Act," also introduced today. Both bills are attempting to fix the disastrous "Protect America Act" that was rushed through Congress in August and rubberstamped the administration's warrantless wiretapping program. The ACLU believes that Rep. Holt's bill is constitutional because, unlike the RESTORE Act, it does not include so-called basket warrants for American communications. Blanket warrants do not require individualized suspicion and are tantamount to no warrant at all.

The following can be attributed to Caroline Fredrickson, director of the ACLU Washington Legislative Office:

"Representative Holt's bill addresses the administration's intelligence concerns without giving up any ground on civil liberties. It protects privacy rights by limiting the scope of surveillance to foreigners communicating with other foreigners and also demanding the destruction of any American information inadvertently obtained during intelligence gathering.

"This bill does nothing to impede government agencies working to keep us safe and does everything to restore the rights that were disregarded by the Protect America Act. In fact, it is a direct and constitutional answer to the Protect America Act. This bill ultimately proves that we can protect our country from threat and keep the Fourth Amendment intact. If it must pass something, Congress should use Representative Holt's bill as it moves forward on fixing the mistake of the Protect America Act."

To read more about the ACLU's work on FISA, go to: http://www.aclu.org/fisa

Morris County Court Rules in Favor of Tenants' Privacy

NEWARK, N.J. -- The American Civil Liberties Union of New Jersey today praised a decision issued Friday by Morris County Superior Court Judge B. Theodore Bozenelis that protects the privacy rights of tenants.

In the case, captioned Powder Mill Heights, et al., v. Township of Parsippany-Troy Hills, Judge Bozenelis struck down a Parsippany-Troy Hills ordinance that required landlords to turn over the names, Social Security numbers, driver's license numbers, places of employment and phone numbers of all tenants.

"The right to privacy in your home and control over your personal information are core principles enshrined in our federal and state constitutions," said Grayson Barber, a Princeton attorney who submitted the legal brief on behalf of the ACLU-NJ. "This is an especially important principle given significant concerns in recent years over identity theft."

Judge Bozenelis ruled that the ordinance violated tenants' privacy and due process rights and that, if the town was concerned about overcrowding, all that was necessary for town officials to obtain was the number of residents in each unit. This was the position advocated by the ACLU-NJ in a "friend-of-the-court" brief submitted in June 2007.

In its brief, the ACLU-NJ cited to a prior Appellate Division decision that struck down a similar measure in Belmar, N.J. In that decision, the court held that the town "does not need to know the names of tenants or their addresses or other personal information to enforce an occupancy limit."

ACLU-NJ Urges AG to Revisit Flawed Directive

Comments on Attorney General Directive No. 2007-3 Concerning Local Police Engagement in Immigration Law By Deborah Jacobs, ACLU-NJ Executive Director.

After months of consideration and meeting with countless interested parties - including immigrant and civil rights groups, law enforcement professionals, and advocates who work with domestic violence victims - last week New Jersey's Attorney General finally issued a long-awaited directive on the issue of what role local police can play in federal immigration enforcement. (Background at: AG's Guidance Needed On Cops and Immigrants).

In a nutshell, the directive says that local police must inquire about immigration status upon arrest of a suspect for an indictable offense, and report individuals suspected of being undocumented to Immigration and Customs Enforcement (ICE). It also says that police may not ask witnesses, victims or people seeking assistance about their status.

The directive includes strong statements about immigration enforcement being the primary duty of the federal government, about the counterproductive consequences of entangling local police in immigration enforcement, and about the state's commitment to combating racial profiling.

Nevertheless, for police professionals and community advocates alike, the directive raises more questions than it answers. The problem is what the directive doesn't say.

For example, it doesn't explicitly prohibit local police from inquiring about immigration status prior to arresting an individual. This omission gets to the heart of the concerns of law enforcement professionals who have spoken out against local police engaging in immigration enforcement: acting as immigration enforcers makes it more difficult for police to serve and protect their communities. The Major Cities Chiefs Association expressed this sentiment in a 2006 report, stating that, "Such a divide between the local police and immigrant groups would result in increased crime against immigrants and in the broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in solving crimes or preventing future terroristic acts."

The directive's failure to explicitly prohibit officers from asking about immigration status prior to arrest jeopardizes trust between police and community, and consequently threatens public safety.

The directive is also inconsistent; it does not limit local police from making pre-arrest inquiries about status unless they have established a formal relationship with ICE allowing them to act as a federal immigration officer (287g status), in which case they cannot make inquiries unless and until an arrest takes place. This has inspired the Morristown mayor (whose efforts to have town police officers deputized under 287g brought this issue to the forefront), to threaten in a letter to US Attorney Chris Christie to have local police start asking for the immigration status of everyone stopped for ticketing.

Another problem is that the directive, while very specific on some details (such as the means - telephone, fax, etc. - with which reports can be transmitted to ICE), does not provide critical guidance that police need. For example, it says that police must make an inquiry about status upon arrest, but it does not provide any guidance on what that inquiry might entail - asking the individual? - document review? - database checks?

The directive further requires that police notify ICE when they have "reason to believe" that an arrested individual may be undocumented. The directive does not indicate what information should be used, or standards applied, in forming that belief. And, with no specifics on the parameters of the inquiry on which the "reason to believe" should be based, the procedure is further confused and open to abuse.

This lack of guidance increases the potential for racial profiling or discrimination. While the directive repeatedly cautions against racially motivated enforcement, by failing to elaborate on the inquiry with specific guidelines or tools, it leaves the door wide open for discriminatory assumptions based on race or ethnicity. Racism is something that each of us must fight to reject as we breathe it in the air. It functions at both the conscious and subconscious levels, and to protect against it we must have strong policies and procedures in place that will help ensure that it doesn't have a role in policing, or any other arena of government, business or public life.

The directive boasts that "New Jersey has taken a leadership position in eliminating racially-influenced policing, or racial profiling." This is hardly the case; most actions that the state has taken have been forced upon it, such as the public demanding hearings, or the federal government requiring a consent decree. This directive, unless amended, represents perpetuation of the "more talk than walk" that New Jersey has demonstrated again and again when it comes to reforming police practices related to racial profiling.

Finally, even the section of the directive that seeks to protect witnesses and victims raises issues. In many incidents and disputes, including domestic violence situations, it's not always clear who is the victim and who is the perpetrator, potentially leaving police unable to comply with the directive.

The directive falls short of what New Jersey police departments need to guide policies and practices on involvement with questions of immigration status. Rather than providing sound and clear policies that would spare hundreds New Jersey towns and cities from the battling these issues out on the ground, this directive muddies the water by offering incomplete and inconsistent guidance. Before this issue further inflames towns like Morristown and cities like Newark, the AG should revise her first directive to make it right.

MVC Comments Highlight Cost, Privacy Concerns with Real ID

NEWARK, N.J. — The American Civil Liberties Union of New Jersey today praised the New Jersey Motor Vehicle Commission for its substantive comments to the Department of Homeland Security about privacy and other concerns on a proposed national identity card, known as Real ID.

In early March, the Department of Homeland Security released draft regulations for the Real ID Act, which is federal legislation that aims to create a national ID card. The New Jersey Motor Vehicle Commission provided 63 pages of comments, raising concerns about security, cost, privacy and other implications of Real ID to New Jersey residents.

"With these comments, the Motor Vehicle Commission has demonstrated that it is a strong advocate for the rights and interests of New Jerseyans," said ACLU-NJ Executive Director Deborah Jacobs. "The MVC's analysis shows that Real ID would be a real nightmare of more red tape, longer lines, more identity theft and higher fees for New Jersey."

The New Jersey MVC's comments reflect a growing rebellion among the states against Real ID. Twelve states have passed legislation or resolutions opposing Real ID and several states have passed statutory bans on participating in Real ID as it is currently constituted.

In light of the MVC's substantive concerns, the ACLU-NJ calls on Governor Corzine to join this national movement and take action to reject Real ID. "Our own MVC has identified countless problems with Real ID, demonstrating that if implemented, Real ID will waste New Jerseyans' money, jeopardize our privacy and replace our driver's license system with a new scheme that will cost billions and fail to provide real security," said Jacobs. "It is time for us to say 'no' to Real ID."

The Real ID Act creates a national ID card system that federalizes and standardizes state driver's licenses. After being rejected as a stand-alone bill, it was forced through Congress in 2005 as part of a must-pass Iraq War appropriations measure. It requires every person in the country to have a Real ID-compliant identification document in order to fly on commercial airlines or enter government buildings. The Department of Homeland Security has said that some day Real ID will be required for other purposes, like getting a passport. Interested parties had until May 8 to submit comments on the regulations.

New Jersey's MVC clearly identifies the problems that the proposed Real ID regulations present for the state, which through its 6-point ID system already has one of the most secure licenses in the country. The MVC's comments state that "[w]hile substantial changes were made to update the State's previously archaic system, the present process, though extremely secure, will fall short of meeting the requirements … Therefore to become compliant, New Jersey would need to utilize significant resources that the State can ill-afford at this time."

DHS estimates that Real ID will cost $23 billion to implement nationally over the next 10 years. The New Jersey MVC states that the cost DHS suggested for the state to implement Real ID — $210 million over 10 years — is underestimated by at least 36 percent. The comments also note the failure of the federal government to provide grants and other funding sources for Real ID implementation.

The MVC said that the Real ID system would alter the agency's core mission from driver safety to a business that emphasizes identification. In its comments on Real ID, the MVC questioned "whether sufficient thought has been given to the impact this change could have on driver safety nationwide."

Finally, in addressing privacy issues, the MVC notes it has "some concern about the increased risk of identity theft and the potential erosion of personal privacy. Whenever additional personal information is collected and systems are created to retrieve that personal information or databases are established to house such information, the threat of improper access and use of that information is heightened."

On the Net

For more information on state opposition to Real ID, visit http://tinyurl.com/23l92n

ACLU-NJ Opposes Release of Tenants' SSN to Government Officials

NEWARK, N.J. -- The American Civil Liberties Union of New Jersey today announced that it has joined a lawsuit in the role of "friend-of-the-court" in a case concerning the privacy rights of tenants.

The lawsuit, captioned Powder Mill Heights, et al., v. Township of Parsippany-Troy Hills, challenges a township ordinance requiring landlords to turn over the names and Social Security numbers of all tenants. The ordinance also requires that landlords provide the town with the driver's license numbers, places of employment and phone numbers of all tenants.

"One of the core principles of our democracy, enshrined in our federal and state constitutions, is the right to privacy in your own home and control over your personal information," said Grayson Barber, a Princeton attorney who submitted the legal brief on behalf of the ACLU-NJ. "This ordinance subjects anyone who rents a home in Parsippany-Troy Hills to a profound invasion of privacy."

In its brief, the ACLU-NJ argued that the forced disclosure of Social Security numbers violates both federal and state statutes protecting the confidentiality of those numbers. In response to the town's stated need to adopt the ordinance to address overcrowding, the ACLU-NJ asserted that government should only be allowed to obtain the number of tenants in each apartment, not the names or Social Security numbers of those tenants.

"Every person in New Jersey has a right to refuse the unnecessary, forced disclosure of private information to the government," added Barber. "This is especially true given significant concerns in recent years over identity theft."

The ACLU-NJ, in its brief, noted an Appellate Division decision that struck down a similar measure in Belmar, N.J. In that decision, the court held that the town "does not need to know the names of tenants or their addresses or other personal information to enforce an occupancy limit."

Morris County Superior Court Judge B. Theodore Bozonelis accepted the ACLU-NJ as a friend-of-the-court on June 20, allowing the organization to participate in the lawsuit.

The brief is available on the ACLU-NJ Web site at Powder Mill v. Parsippany-Troy Hills Brief (38k PDF).