In the wake of the police shootings in Ferguson, MO and Staten Island, NY, the issue of police body cameras has come into public conversation as a potential means to create transparency and to safeguard against police misconduct. The Champaign county town of Rantoul, IL recently equipped their police force with body cameras, having tested and trained their department on the technology for over a year before they began using them in November.  This September, the ACLU of Illinois published suggested guidelines on the use of police body cameras which outline areas of concern ranging from basic privacy protections for the police wearing them, when and where police can turn the device on and off, and storage protocols for the video files once they are recorded. The News-Gazette spoke with ACLU of Illinois communications and public policy director Ed Yohnka on the use of body cameras by law enforcement.

The ACLU supports the type of system already in place in Rantoul, where most video footage is kept for 90 days. If it results in arrest, the policy calls for the video to be manually deleted after the court case is concluded.

“And you really need to put some parameters around who gets access to videos,” Yohnka said. “You don’t want a YouTube channel devoted to drunken people falling down on body cameras.”

Read the article.
 

I first met Tatyana a few years after the Wisconsin legislature passed the Inmate Sex Change Prevention Act – a cruel piece of legislation aimed at denying urgently needed healthcare to any transperson in custody in Wisconsin.

By that time, she had already signed up to be a plaintiff in the challenge to the Wisconsin law filed by the ACLU and Lambda Legal, and I had already met most of the other plaintiffs, including Kari, Andrea, and Lindsey. But even though I had a pretty good sense of what these women were facing, it was still hard to fathom how these women managed to survive the challenges and indignities of living in a male prison – a near universal experience for transgender women in U.S. prisons where corrections agencies house prisoners based on birth-assigned gender, rather than lived gender. Despite risk of retaliation, Tatyana and the other plaintiffs in Fields v. Smith all courageously stepped up and stayed with us for the long fight until a federal court struck down this law as unconstitutional in 2010.

Though Tatyana's challenge to Wisconsin's law was successful and several other federal courts have similarly found bans on treatment for gender dysphoria unconstitutional, too many transgender individuals in prison continue to fight for years to try to get their basic healthcare needs met or to be protected from assault. To assist them in their fight, the ACLU and NCLR today released a new "Know Your Rights" resource to help other transgender prisoners demand to be treated with dignity.

When Wisconsin legislators passed the Inmate Sex Change Prevention Act at the end of 2005, they decided to tell Wisconsin prison doctors how to practice medicine, barring prison medical staff from treating transgender prisoners with the basic care they need, regardless of the health consequences. Tatyana, Kari, Andrea, and Lindsey had all taken hormone therapy for several years, so denying them their hormone therapy was devastating for them – causing depression, anxiety, and terror as their minds and bodies suffered the impact of abruptly stopping the medication they relied on to survive.

Like so many people caught up in the criminal justice system, Tatyana had a difficult childhood and then got into trouble, committing the identity theft crimes that landed her in prison. Growing up she would lie in bed, confident she was a girl and praying to wake up the next morning with a girl's body only to be disappointed when she woke up the next morning with the same body that she believed betrayed who she was.

When she testified, Tatyana minimized the risks she faced as a woman in an all-male prison, saying that she avoided tight clothing and acting flamboyantly to keep attention from being drawn to her. But she had to admit that other prisoners and staff said offensive and threatening things to her because they saw her as gay, feminine, or just different.

Because of her gender identity issue, Tatyana was stigmatized. Staff and inmates harassed her and circulated rumors about her promiscuity. "I'm termed as a homosexual," she said. "I'm more prejudiced against, more closely watched."

One of the most disturbing parts of Tatyana's case was that the state of Wisconsin actually argued that the law was passed to help transgender women by preventing them from being assaulted by male prisoners because of their feminine appearance. The judge was asked to believe that the same Wisconsin legislators who said they wanted the law to prevent "prison extreme makeovers" at taxpayer expense had the best interests of these transgender prisoners at heart.

But when asked about whether taking hormones would increase her vulnerability, Tatyana's answers couldn't be clearer: Denying her hormones was not going to end her vulnerability to harassment and assault, "[b]ecause I'm still gonna be me. I'm still gonna be female."

Unfazed, Tatyana cannot turn back from living her life as a woman. "This is something that I've been dealing with all of my life and been attempting to take those steps to become, like I said, something that I've known I was in my mind all of my life." And, ultimately, the court soundly rejected the state's argument and struck down the Wisconsin law.

As difficult as it was for them to do so, Tatyana, Kari, Lindsey and Andrea spoke up ­– not only for themselves, but also for those who would come after them. Their struggles and their bravery – as well as those of Dee Farmer, Chelsea Manning, and many others – have made, and will continue to make, things a little better for those who follow.

My colleagues at the ACLU and NCLR hope that "Know Your Rights: Laws, Court Decisions, and Advocacy Tips" will help prisoners, their friends, family members, and other advocates to continue the fight to make things better for transgender people in prison. The courage and strength of people like Tatyana has moved the ball forward, but so much more work remains to be done.

We hope this new publication will assist with the work that remains.

Cross-posted from the Blog of Rights.

What does the ACLU think of the bill?

It is good that the new eavesdropping bill enacted during the veto session generally protects our reasonable expectations of privacy in our conversations, phone calls, and electronic communications from unwanted recording or interception, and that it does so without intruding on our First Amendment right to expose government misconduct by recording the non-private conversations of on-duty government officials. The new statute does this by prohibiting the recording and intercepting of only private conversations, unless there is all-party consent or a warrant.

So the new statute generally provides that police, informants, or other members of the public cannot record our private conversations without our permission. Also, we cannot be arrested or prosecuted under the new statute for recording on-duty government officials who are talking to the public as part of their jobs, because those conversations are not private. The new statute respects the appellate court ruling in the case the ACLU brought against the Cook County State’s Attorney’s Office: on-duty police officers have no reasonable expectation of privacy in their conversations in public places.

Unfortunately, compared to the last version of the Illinois eavesdropping statute, the new statute significantly expands the circumstances when police and informants may record and intercept private conversations and phone calls without all-party consent or a warrant. We know of no evidence that the prior version of the statute, which required police to seek judicial approval, was any impediment to law enforcement in these instances. We are concerned about the expanded number of cases where no judicial officer will provide a check on police. On this basis, the ACLU of Illinois opposed the new statute.

What conversations does the eavesdropping bill apply to?

The eavesdropping bill on the Illinois Governor’s desk prohibits the recording of private conversations absent all-party consent or a warrant. It defines private to mean when a person intends the conversation to be private under circumstances that reasonably justify that expectation. Thus, there will be a statutory limit on recording private conversations, and no limit at all on recording non-private conversations.

When is a conversation private?

The term “private” in the Illinois statute is the same or nearly the same as similar terms in the federal eavesdropping statute and scores of state eavesdropping statutes that have been on the books for many decades. A host of judicial decisions, interpreting these statues and also the Fourth Amendment, have addressed whether people have a reasonable expectation of privacy in a variety of conversations involving a variety of circumstances. If the Illinois Governor signs the bill on his desk, the new statute’s line (was the conversation private?) will be interpreted in light of this well-developed body of judicial precedent.

When do police have a reasonable expectation of privacy?

Police clearly do not have a reasonable expectation of privacy against recording by civilians when they are on-duty in a public places and speaking at an ordinary volume. This was a holding of ACLU v. Alvarez, which protected the First Amendment right of civilians to audio record such non-private police conversations. But this is just one of the many circumstances in which police do not have a reasonable expectation of privacy. On-duty police generally will have no reasonable expectation of privacy when they speak to civilians, including in many non-public places. For example, police cannot reasonably expect to be free from audio recording by a home owner when they enter a private home to enforce a warrant, or by a suspect being interrogated inside a stationhouse interrogation room. ACLU v. Alvarez is just one of the many judicial decisions finding that on-duty police lacked a reasonable expectation of privacy against recording by the civilians they speak with. On the other hand, two off-duty police officers might have a reasonable expectation of privacy when they speak together in a squad car with the windows up and no one else present, or whisper to each other in a deserted public park. Whether the location of the conversation is public or private is one relevant factor among many in deciding whether there was a reasonable expectation of privacy.

When do other government employees have a reasonable expectation of privacy?

In light of the case law, on-duty government officials who knowingly speak with members of the public as part of the performance of their government jobs will generally not have a reasonable expectation of privacy against civilian recording of those conversations.