The federal government’s use of secrecy and deception in the name of national security reached a new low last week, when Obama administration lawyers argued that they had the right to lie to a federal court in the name of national security by denying even the fact that they were keeping secret records about a group of Southern California residents.   While the Court excoriated the government for lying, the Obama administration has defended its actions, raising fears that it will continue the practice in other cases.  Read the Amended Order
The statements arose in the context of a lawsuit brought by several peaceful, law-abiding Southern California Muslims.  They appear to have been the target of government surveillance for years, simply because of their religion.  They sought to learn if the FBI had been targeting them for engaging in peaceful, constitutionally-protected activity.  The individuals, represented by the ACLU of Southern California, filed a Freedom of Information Act (FOIA) lawsuit five years ago for records about the FBI’s surveillance of them.   Read the Complaint
After the groups filed suit, the government released records about them which revealed a disturbing trend -- the FBI had extensively surveilled and documented these groups’ peaceful activities.  For example, the FBI had surveilled their participation in the immigration reform movement, monitored their fundraising activities to support earthquake relief in India, and documented their public statements advocating nonviolence.  While these documents revealed a troubling pattern of FBI surveillance, what they kept hidden seemed equally troubling – large portions of many of the documents were simply blacked out.  Therefore, the ACLU asked the Court to review the complete documents in order to determine if further information could be released.
In response, the government took the remarkable step of lying about the documents they had kept secret -- not only to the Plaintiffs, but also to the Court.  The FBI submitted an extensive brief and declaration by a high-ranking FBI official that, according to the Court, contained “blatantly false” statements about the nature and number of documents that the FBI had kept secret, including lies about whether information had been kept secret and the reasons for that secrecy.  The judge discovered this only because the ACLU had asked him to independently review the FBI’s decision to keep the documents about them secret.
Amazingly, after the Court confronted the government about the lies, the government defended its conduct, claiming not only the authority to keep the information secret, but also to lie – to both the public and the courts - even about the fact that it was keeping the information secret.  Although all of the information at issue is now over five years old, and involves a set of Americans living in Southern California none of whom have ever been arrested, let alone convicted, of any crime in this country, the Obama administration still asserts that disclosing even the fact that there are further documents about these individuals will threaten the national security.
While the court strongly rebuked the government for its conduct, the Obama administration has continued to defend it – going so far as to issue a public statement from the Department of Justice “strongly” disagreeing “with the characterization that the court was misled.”   While we have come to expect such double-speak in government responses, its failure to admit wrongdoing is particularly disturbing in this case, because the district court’s opinion creates no precedent that binds the government in other cases.  As a result, we have no reason to believe that the government is not engaged in similar conduct in cases throughout the nation, or that it will change its practice in response to the court’s order.
Nine years ago, in the wake of the 9/11 attacks, a federal court stated that “democracies die behind closed doors,” and ruled in that case that the Bush administration could not hold secret deportation hearings based only on the assertion that the person subject to deportation was of “special interest.” As that court explained, “a true democracy is one that operates on faith — faith that government officials are forthcoming and honest, and faith that informed citizens will arrive at logical conclusions.”  Nearly 10 years later, it's sad that an administration that promised a new era of open government has chosen to close its doors by lying not only to the people, but even to the courts designed to protect us from abuses of power.

SACRAMENTO – Today, the California State Senate unanimously approved the Reader Privacy Act of 2011 – legislation that would require government agencies to seek a warrant in order to access consumers’ reading records from bookstores and online retailers. The bill – SB 602 authored by Senator Leland Yee (D-San Francisco) – would establish consumer protections for book purchases similar to long-established privacy laws for library records. 

“I am very pleased that both Democrats and Republicans agree that current law is completely inadequate when it comes to protecting one’s privacy for book purchases, especially for online shopping and electronic books,” said Yee. “Individuals should be free to buy books without fear of government intrusion and witch hunts. If law enforcement has reason to suspect wrongdoing, they can obtain a warrant for such information.”

Many bookstores already collect information about readers and their purchases. Digital book services can collect even more detailed information including which books are browsed, how long each page is viewed, and even digital notes made in the margins.

Historically, sensitive reader information has come under fire. During the McCarthy hearings of the 1950s, Americans were questioned about whether they had read Marx or Lenin. In the years following September 11, 2001, the FBI sought patron information from more than 200 libraries.

Just this past year, Amazon was asked by the North Carolina Department of Revenue to turn over 50 million purchase records including books, videos, and other expressive material. 

SB 602 will update California state law to ensure that government and third parties cannot demand access to Californians’ reading records without proper justification.

Yee’s law is supported by the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), Google, Consumer Federation of California, and Californians Aware, among others

Supporters say that it is essential for state law to keep pace and safeguard readers in the digital age.  Electronic or digital books now outsell paperbacks on Amazon.com and over 18 million e-readers are expected to be sold in 2012.

“California should be a leader in ensuring that upgraded technology does not mean downgraded privacy,” said Valerie Small Navarro, Legislative Advocate with the ACLU’s California Affiliates. “We should be able to read about anything from politics, to religion to health without worrying that the government might be looking over our shoulder.”

“In a recent Google Books decision, the court noted the importance of the privacy concerns with digital books,” said Cindy Cohn, Legal Director at the Electronic Frontier Foundation. “This law will ensure that the enhanced reader tracking that is possible through digital books and book services doesn’t create a honey pot for government investigators and other lawyers seeking to snoop on what we search for, browse and read in digital bookstores and libraries.” 

SB 602 will next be considered by the State Assembly.

ACLU of Southern California, Disability Rights California, Disability Rights Legal Center, and Winston & Strawn filed an application for a temporary restraining order against the Los Angeles County Sheriff’s Department on behalf of an inmate with a mobility impairment, who needs a wheelchair, but is being punished by the Sheriff’s Department for refusing an order from the Sheriff’s Department to give it up.
Terry Alexander is a class member in the class action lawsuit Johnson v. Los Angeles County Sheriff’s Department, which was filed in 2008 against the Los Angeles Sheriff’s Department, Los Angeles County and Sheriff Baca on behalf of inmates with mobility impairments.
The plaintiffs argue that the jails are not wheelchair accessible, and that inmates are denied mobility devices such as wheelchairs, crutches, walkers or canes, even though they need them.  Inmates with mobility impairments also suffer discrimination because they are denied access to jail programs and services, including those that may reduce time served.  The inmates are also placed in cells that are not wheelchair accessible, which means that men have fallen because there are no grab bars to help transfer them to the toilet, and some of them are denied equal access to shower facilities.  This is a violation of the Americans with Disabilities Act, California and federal statutes, and the Eighth and Fourteenth Amendment of the Constitution.
“We need the court to step in immediately to protect Mr. Alexander, who is in “the hole” for refusing to give up the wheelchair that is absolutely essential to his basic functioning,” said Jessica Price, staff attorney for the ACLU/SC. “Doctors in the jail have decided that Mr. Alexander needs a wheelchair, and now the deputies are punishing him for failing to get out of his wheelchair.”
“This is among the worst disability discrimination that we’ve seen in a long time,” says Shawna Parks, Legal Director for the Disability Rights Legal Center. “To not only deny a necessary accommodation, but also discipline someone for disputing that denial, flies in the face of every disability nondiscrimination statute on the books.”
Mr. Alexander has a history of paraplegia. He has needed a wheelchair since 2003 after a number of his spinal discs were crushed by a forklift at his job.  In 2010 he was arrested.  He has had multiple doctors determine that he needs a wheelchair. Deputies put him in “the hole” – solitary confinement in disciplinary housing that is physically inaccessible with no accommodations for persons with disabilities --  on April 14, 2011 for failing to get out of the wheelchair.  While in “the hole” Mr. Alexander has fallen because there are no grab bars and he has difficulty transferring to the toilet.  He is also barred from using the telephone and therefore is unable to call his mother who had a stroke last year.
The plaintiffs are asking the court to order the defendants not to punish Alexander until he can have an independent medical exam to determine the medical necessity of his wheelchair.