Technology is a necessity of modern life. People of all ages rely on it for everything from accessing information and connecting with others, to paying for goods, using transportation, getting work done, and speaking out about issues of the day. Without adequate privacy protections, technology can be co-opted to surveil us online and intrude on our private lives–not only by the government, but also by businesses–with grave consequences for our rights.

There is sometimes a misconception that shielding our personal information from this kind of misuse will violate the First Amendment rights of corporations who stand to profit from collecting, analyzing, and sharing that information. But we don’t have to sacrifice robust privacy protection to uphold anyone’s right to free speech. In fact, when done right, strong privacy protections reinforce speech rights. They create spaces where people have the confidence to exercise their First Amendment rights to candidly communicate with friends, seek out advice and community, indulge curiosity, and anonymously speak or access information.

At the same time, simply calling something a “privacy law” doesn’t make it so. Take the California Age Appropriate Design Code Act (CAADCA), a law currently under review by the Ninth Circuit in NetChoice v. Bonta. As the ACLU and the ACLU of Northern California argued in a friend-of-the-court brief, this law improperly included content restrictions on online speech and is unconstitutional. Laws can and should be crafted to protect both privacy and free speech rights. It is critical that legislatures and courts get the balance right when it comes to a law that implicates our ability to control our personal information and to speak and access content online.

Consumer privacy matters. With disturbing frequency, businesses use technology to siphon hordes of personal information from us – learning things about our health, our family situation, our financial status, our location, our age, and even our beliefs. Not only can they paint intimate portraits of our lives but, armed with this information, they can raise or lower prices depending on our demographics, make discriminatory predictions about health outcomes, improperly deny housing or jobs, hike insurance rates, and flood people of color and low-income people with ads for predatory loans.

All this nefarious behavior holds serious consequences for our financial stability, our health, our quality of life, and our civil rights, including our First Amendment rights. Better consumer privacy gives advocates, activists, whistleblowers, dissidents, authors, artists, and others the confidence to speak out. Only when people are free from the fear that what they’re doing online is being monitored and shared can they feel free to enjoy the full extent of their rights to read, investigate, discuss, and be inspired by whatever they want.

Yet in recent years, tech companies have argued that consumer privacy protections limit their First Amendment rights to collect, use, and share people’s personal information. These arguments are often faulty. Just because someone buys a product or signs up for a service, that doesn’t give the company providing that good or service the First Amendment right to share or use the personal information they collect from that person however they want.

To the contrary, laws that require data minimization and high privacy settings by default are good policy and can easily pass First Amendment muster. Arguments to the contrary not only misunderstand the First Amendment; they’d actually weaken its protections.

Laws that suppress protected speech in order to stop children from accessing certain types of content generally often hurt speech and privacy rights for all. That’s why First Amendment challenges to laws that limit what we can see online typically succeed. The Supreme Court has made it clear time and again that the government cannot regulate speech solely to stop children from seeing ideas or images that a legislative body believes to be unsuitable. Nor can it limit adults’ access to speech in the name of shielding children from certain content.

Arkansas Wants to Unconstitutionally “Card” People Before They Use Social Media

The state’s Social Media Safety Act stifles freedom of expression online and violates the First Amendment.

Source: American Civil Liberties Union

The CAADCA is unconstitutional for these reasons, despite the legislature’s understandable concerns about the privacy, wellbeing, and safety of children. The law was drafted so broadly that it actually would have hurt children. It could have prevented young people and adults from accessing things like online mental health resources; support communities related to school shootings and suicide prevention; and reporting about war, the climate crisis, and gun violence. It also could interfere with students’ attempts to express political or religious speech, or provide and receive personal messages about deaths in the family, rejection from a college, or a breakup. Paradoxically, the law exposes everyone’s information to greater privacy concerns by encouraging companies to gather and analyze user data for age estimation purposes.

While we believe that the CAADCA burdens free speech and should be struck down, it is important that the court not issue a ruling that forecloses a path that other privacy laws could take to protect privacy without violating the First Amendment. We need privacy and free speech, too, especially in the digital age.

Seeking lives of safety and opportunity, people coming to the United States as migrants and asylum-seekers may carry only their most essential and beloved possessions. When they arrive in the U.S. and are taken into Border Patrol custody, many migrants endure the devastating loss of their property: Border Patrol agents routinely confiscate, trash, or force them to throw away their precious belongings.

From Hope to Heartbreak: The Disturbing Reality of Border Patrol's Confiscation of Migrants' Belongings

Source: American Civil Liberties Union

In a new report published in partnership with organizations working on the southern border, From Hope to Heartbreak, we document routine cases of this abusive treatment focusing on confiscation of medication and medical devices, legal and identity documents, religious items, and items of financial, practical, or sentimental value.

The report relies heavily on hundreds of intakes conducted by the Kino Border Initiative (KBI), which runs a migrant aid center along Mexico’s border with Arizona, and ProtectAZ Health, which offers free medical screenings and care to migrants in Phoenix.

Border Patrol and its parent agency, Customs and Border Protection (CBP), have routinely confiscated life-saving medications and medical devices from adults and children who have illnesses such as seizure disorders, high blood pressure, diabetes, asthma, and genetic conditions.

CBP agents took a 5-year-old girl’s epilepsy medications away from her mother. When the little girl, whom we are calling Rosa, experienced convulsions, she was taken to the hospital. When she was discharged from the hospital and returned to CBP custody with new medications and special dietary supplements, CBP agents confiscated those. Not until the family was released to a shelter in Las Cruces, New Mexico, did Rosa receive the medical care she needed.

Depriving people of their necessary medication obviously risks their health and safety. It also adds stress to local hospital systems, as people need to visit the emergency room or be hospitalized because their health deteriorates from missing their medication.

ProtectAZ received a 13-year-old boy, whom we are calling Leonel, at their shelter. Leonel has a genetic condition in which he lacks a necessary amino acid that prevents the build up of ammonia in his body. The condition can have serious consequences if untreated, including seizures, coma and death. Leonel needed to take daily supplements, but they were confiscated by Border Patrol in Casa Grande, Arizona. At the ProtectAZ shelter, Leonel’s health deteriorated, and he had to be admitted to the hospital for a week to stabilize his condition.

In a separate occurrence, a 7-year-old boy with moderate-persistent asthma was detained for two days. His inhaler was taken away, and he wasn’t given a replacement. After being released, he developed respiratory symptoms, and his condition worsened quickly. His family took him to the emergency department, and he was transferred to a pediatric intensive care unit.

Confiscating or destroying legal and identity documents, such as birth certificates, passports, medical records, and documents to substantiate asylum claims, has been a hallmark of Border Patrol’s operations.

One man told KBI that Border Patrol agents tore his birth certificate up in front of him. He managed to save his Mexican identity card because he had hidden it in his shoe. Advocates in the Rio Grande Valley Sector in Texas report finding discarded documents that could be important in substantiating asylum claims, such as police reports and medical records. Volunteers with the Borderlands Collective in San Diego say document confiscation is especially concerning for parents of minor children, who may not be able to prove that they are family without their children’s birth records.

“Passports are very important here,” one person had shared. “To open an account, to identify yourself, and I don’t have that document. I don’t have the children’s birth records because they took them from me. That makes me feel terrible.”

Migrants who are deported, expelled or returned to Mexico cannot withdraw or receive money without identity documents. Confiscated or destroyed documents pose a significant barrier to asylum-seekers’ ability to substantiate their claims. The Children’s Legal Center sued Immigration and Customs Enforcement (ICE) on behalf of 68 asylum-seekers whose documents the agency had confiscated. The lawsuit argues the confiscation violates the plaintiffs’ due process rights to seek work authorization and to support their asylum cases.

Over the summer of 2022, there was a spike in reports of Border Patrol taking away Sikh asylum-seekers’ turbans. Forcing a Sikh person to remove their turban is a serious violation of their faith. “They told me to take off my turban. I know a little English, and I said, ‘It’s my religion.’ But they insisted.” The man pleaded with the officers, but they forced him to remove his turban and toss it in a pile of trash. He asked if he could at least keep his turban for when he was released from custody, but they told him no.

While Border Patrol has since taken positive steps forward on how it handles turbans and other Sikh articles of faith, the agency’s religious freedom violations aren’t limited to people of the Sikh faith. A person told KBI that Border Patrol agents took his Bible, which he told them had significant spiritual meaning to him, and trashed it in front of him. Border Patrol agents in Yuma told several Muslim migrants they had to throw away their prayer mats. One of the men said his prayer mat had been in his family for more than 100 years.

BORDER PATROL MUST STOP TRASHING MIGRANT’S CHERISHED BELONGINGS

If you believe that people seeking refuge in our country deserve to be welcomed with dignity, join us by advocating for change.

Source: American Civil Liberties Union

Migrants’ religious freedom is protected both by the First Amendment and the federal Religious Freedom Restoration Act, which provides additional protection for the free exercise of religion. Some asylum-seekers are fleeing religious persecution in their home countries, and the experience of CBP violating their religious faith can be a retraumatizing experience. CBP has been made aware of their violations for years, suggesting a failure of CBP policy and practice to fully respect the religious freedom rights of migrants and asylum-seekers.

Migrants have regularly reported Border Patrol agents confiscate their money and cellphones. These items are of clear value and represent a devastating loss: impoverishment and loss of contact with loved ones. Several migrants told KBI they lost the equivalent of hundreds of dollars to Border Patrol. One man described seeing a Border Patrol agent take 3,000 pesos from another man and rip it up in his face. Other migrants described the loss of family photos on their confiscated cellphones.

Confiscation of clothing appears to be widespread in Border Patrol custody, leaving migrants with only a single layer of clothing. “The official asked me how many shirts I had, and I responded that I had two shirts plus a sweater. The official started laughing and told me I had to take everything off but one shirt,” one person recounted.

Volunteers and shelters supporting migrants are critical of this practice, especially during the winter and if migrants are traveling north. One shelter in Las Cruces, New Mexico, said it spent $100,000 every month to provide clothes to migrants. Once the Border Patrol sectors in New Mexico reduced their confiscation of people’s clothes, the shelter reported reducing costs for clothing people by half.

Finally, migrants report having their cherished belongings confiscated or trashed – children’s toys, heirloom jewelry, and even a loved one’s ashes. One man said Border Patrol agents forced him to throw away his father’s ashes – his father had died while journeying to the U.S. from Nicaragua.

CBP’s practice of property confiscation and destruction isn’t only cruel, unnecessary, and, in some cases, life-threatening, in many cases, it likely violates federal law and policy. We outline achievable policy changes that CBP can adopt to protect the dignity, safety, and rights of people arriving in the U.S.

Border Patrol must ensure migrants in its custody and those released from custody have continuous access to their medications and medical devices. Migrants should be allowed to keep as many of their personal belongings as possible in custody and after they are released. CBP must change its policies to comply with federal safeguards of religious freedom in its treatment of people’s religious garb and religious items.

The bottom line is that CBP can and must do better to live up to our nation’s values and commitments to people seeking safety within our borders. People seeking refuge in the U.S. deserve to be welcomed with dignity.