By Ryan Kiesel, Executive Director, The American Civil Liberties Union of Oklahoma Foundation

There’s a knock on your door. You answer it to find an agent from the NSA. He politely informs you that he is there to enter your home, go to your computer, and collect your internet browsing data. He is also going to collect your activity on Facebook, twitter, and other social media sites. After gathering information from your computer he demands your cell phone. He copies your call history and text messages, and informs you that your conversations, past and present, may be subject to monitoring and recording. Afterwhich, he politely thanks you for your time and moves on to your neighbor’s house.

This is no dystopian future. It is a more forthright version of the present that attorney Ramzi Kassem uses in a recent episode of This American Life to illustrate what the NSA’s surveillance program might look like in more literal and physical terms. Beginning under the Bush Administration and continuing under the Obama Administration, the NSA has been engaged in similar widespread surveillance practices, but rather than knocking on your door, they have been sending orders from a secret court to your internet providers, phone companies, social networks, email providers, and internet search services. And instead of telling you that they were taking this information, the government has actively lied to the American public and to Congress, first about the existence of the program, and after leaks about its existence made it impossible to continue those lies, they began to lie about the scope of the surveillance.

In the wake of these revelations, I’ve been surprised by the number of otherwise staunch civil libertarians of all stripes, ranging from diligent liberals to devout conservatives, whose response has been apathy instead of outrage. They have noted they have nothing to hide, that their internet lives are boring, and their phone conversations are nothing that would raise the eyebrows of government agents who are ostensibly using their surveillance authority to target non-citizens suspected of planning violence against American interests.

Their apathy is often immune to arguments that if the government lied about the very existence of the program to congress just a few months ago, they could very well be lying about who is being targeted for surveillance, or that this is simply an initial step towards a broader surveillance program that would include their conversations. Again, they say, with nothing to hide, it seems an insignificant trade off in the name of national security.

So leaving aside for the moment the idea that the NSA and their partner agencies could already be reading your text messages or looking beyond your public posts on Facebook, or that they might in the very near future, it is important to remember that as boring and benign as your personal life may be, studies have shown we change the way we behave and communicate when we think we might be under surveillance. This doesn’t just mean you’re less likely to plan a bank robbery over the phone or using your Gmail account. It also means you may find yourself, consciously or subconsciously, reluctant to discuss a sensitive medical issue with a family member over the phone.

As one American citizen, a lawyer for a Guantanamo detainee, who knows their phone calls are being listened to, recently said in the same episode of This American Life, you may find yourself not saying that silly, yet meaningful, thing to a loved one if you’re aware a stranger is silently listening to your conversation. Neither the medical condition or the whispering of silly-nothings is wrong. Neither subjects you to criminal liability. But they are communications we might not make if we did not feel that they were private. In short, even the saints among us with nothing to hide, should be concerned that their ability to form and preserve emotional connections with family, friends, and loved ones may fall victim to self-conscious censorship. Squelching the ability to have candid conversations, to build and strengthen emotional bonds in private, is not a trivial sacrifice.

However, the question of whether that trade off is worthwhile is not one the American public has been able to weigh in on in an informed manner. After a thorough debate Americans may be willing to make that sacrifice if they felt it was worth the preservation of national security. I doubt they will and I will do my best to persuade them otherwise, but the point is moot until American society has had a chance to examine the issues at hand.

Part of that informed decision should ask whether we can we quantify the benefit of warrantless surveillance in a manner that would actually allow us as a society to weigh their benefits against the loss of privacy. This balancing can only occur before such programs become the new normal and distort our expectations of privacy to the extent that we irreversibly abandon those expectations of privacy. Once a society has become accustomed to a decreased level of privacy, it is incredibly difficult, and in many instances impossible, for us to reclaim that privacy. This makes it all the more important that we engage in these debates now.

It can be argued that this debate has already occurred. That as a society we agreed that some privacy rights may be derogated for the sake of national security, and that the appropriate balance was struck by requiring judicial review. The FISA courts that were created to review these request do offer a level of scrutiny that is better than simply allowing the executive branch to conduct unchecked and unreported surveillance. But not by much. FISA seems to operate as nothing more than a rubber stamp. I say seems, because FISA is itself so secretive that we are unable to test whether it is a robust balance to the surveillance powers sought by the executive branch. Recent decisions by the Supreme Court have made it even more difficult to peer into the workings of the court or to subject their orders to further judicial scrutiny. A recent Kafakaesque decision by the Supreme Court holds that one cannot challenge a FISA order unless one can prove that they have been the subject of FISA ordered surveillance. Given that the FISA orders are classified and that the nature of surveillance is such that it is unlikely a person can demonstrate that they were the target of surveillance, we’ve essentially transferred unilateral, unreviewable surveillance authority from one branch, the executive, to another, the judiciary.

Until we have an idea of what it is we are giving up, what protections that sacrifice offers, and whether there are other viable approaches to intelligence gathering that don’t have the same apparent infirmities of the current process, it’s difficult to conclude that the current course is the best course. The status quo, which makes it impossible to know whether there have been abuses, is an impediment to that informed debate.

The ACLU is now leading the way to challenge the NSA’s surveillance program on three legal fronts: in our ongoing FOIA litigation seeking the government’s secret interpretation of the law; in the FISA Court through a public-access motion; and now, in a constitutional lawsuit in federal court.

Kellyville, OK—You would be excused for not associating a high school prom with the First Amendment, but when Kellyville Public School officials recently told a student he would be denied attendance to prom if he wore a kilt, they turned a high school rite of passage into a teaching moment about the Constitution and protected speech. After visiting with the student’s father, the American Civil Liberties Union of Oklahoma sent a letter to Kellyville High School. Shortly after receiving the ACLU of Oklahoma’s letter, school officials withdrew the prohibition and the student successfully exercised his freedom of expression at his prom.

This incident is just one of many similar battles fought at the intersection between schools’ attempts to enforce discipline and the protection of students’ constitutional rights. The U.S Supreme Court has recognized that clothing—even student clothing—is a form of expression entitled to full protection of the First Amendment of the United States Constitution. And it has long held that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Even when the speech occurs in a traditional school setting like a classroom—as opposed to the more free and open social environment of a dance­—school officials must still prove that the forbidden conduct would substantially interfere with the operation of the school or would impinge upon the rights of other students.

While the enforcement of a dress code does not automatically violate students’ constitutional rights, school officials must apply a dress code in accordance with the U.S. and Oklahoma Constitutions. In the case of Kellyville High School, kilts are not offensive to the school’s dress code and had been allowed at school events in the past. The ACLU of Oklahoma argued that it was “difficult to perceive how a kilt might substantially interfere with the operation of a school classroom, let alone a school dance.”

While the wearing of a kilt may seem like a minor issue in the grander scheme of civil liberties, the ACLU of Oklahoma believes such issues present an opportunity for students to learn the invaluable lesson of standing up for their rights.  The ACLU of Oklahoma closed its letter to Kellyville Public Schools by encouraging the administration to let students exercise their protected rights to the extent provided by law, stating that “doing so would not only teach students the value of their speech,  but would set an appropriate example of respect for the law and for the civil rights of others.”

The Islamic Society of Tulsa held a Law Enforcement Appreciation Day in 2011 to thank local police for protecting the center after it received threats during the previous year. As part of the department’s community policing initiative, Capt. Paul Fields was directed to attend, or send officers from his division to attend the event. Fields refused, claiming that to attend or to send officers to the event would violate his religious beliefs, which require him to proselytize anyone who does not share his Christian faith.

“As a police officer, Capt. Fields is bound to serve the entire community, regardless of whether or not they share his beliefs,” said Ryan Kiesel, executive director of the ACLU of Oklahoma. “His refusal to attend an event hosted by members of the community because they happen to be Muslims is discrimination, pure and simple.”

The brief states that the First Amendment requires public servants to serve all individuals and groups of every religious tradition without discriminating against or favoring any particular faith.

The brief notes that Fields’ claim would allow him to, for example, refuse to guard a Sikh temple that has been targeted for violence, provide a police presence at a war protest organized by religious groups and featuring speakers of any non-Christian faith, give a presentation on safety and crime prevention to students at a Catholic school, conduct foot patrols of a neighborhood with a large Orthodox Jewish population, or come to the aid of an injured woman wearing a hijab.

“Capt. Fields is certainly entitled to his own, deeply held beliefs, but while on duty, he simply has no right to ignore or abandon those of other faiths,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief. “The idea that an officer can pick and choose whom he will assist based on what they believe strikes at the heart of our most cherished constitutional values of religious liberty and equality.”

The community event was described as a “casual come and go atmosphere” with a buffet of “American and Ethnic foods” and optional tours of the mosque and an opportunity to observe a prayer service. Officers were not required, however, to participate in any of these activities or even be on site during the prayer service.

The Tulsa Police Department regularly attends community outreach events hosted by religious organizations or held at religious venues of various faiths.

A copy of the brief can be seen at:

aclu.org/religion-belief/fields-v-city-tulsa-amicus-brief

The suit was filed on behalf of Vandelay Entertainment, LLC, parent company of local news and satire outlet The Lost Ogle, who joined with numerous major news organizations this past four months in pressing the Governor to release documents relating to her reversal of position on a state health care exchange and rejection of medicaid expansion funding that could have made health coverage available to approximately 200,000 poor Oklahomans.

The Governor’s Office released a large number of documents on March 29, but it withheld thirty-one records at the direction of Steve Mullins, the Governor’s General Counsel. Mullins has cited “executive privilege,” a doctrine that has never been part of Oklahoma law, to argue that the Governor can legally conceal public records at her choosing. His assertion has received nearly universal condemnation from freedom of information experts and advocates for government transparency.

“Mr. Mullins has repeatedly told the press and the people of Oklahoma that Fallin’s privileged position entitles her to disregard parts of the Oklahoma Open Records Act,” said Brady Henderson, Legal Director of ACLU of Oklahoma, “in other words, that as Governor, she is above the law.”

Oklahoma’s current Open Records Act was enacted in 1985. It requires records created or maintained at public expense to be open to public inspection so that citizens may obtain free information about their government. In the law’s nearly thirty-year history, no prior governor or other executive official has claimed any type of executive privilege against complying with its requirement of free access. “Mary Fallin is the first Governor of Oklahoma to challenge the people’s right to be fully informed about their government,” Henderson said, “we filed this lawsuit to make sure she also will be the last.”

Click here to see a copy of the petition initiating the lawsuit.

Executive Director, Ryan Kiesel will provide an update on the exciting work of the ACLU of Oklahoma and Legal Director, Brady Henderson, will provide a U.S. Supreme Court update with regard to ACLU cases currently under consideration.  In addition, active members attending will help decide on the leadership of the organization.

The meeting will be held in the Bell Court Room of the University of Oklahoma School of Law located at 300 W. Timberdell Rd. in Norman.

Note: The files are quite large and will take some time to download and open.

1. 3-29-2013 Open Records Request File A
2. 3-29-2013 Open Records Request File B
3. 3-29-2013 Open Records Request File C
4. 3-29-2013 Open Records Request File D
5. 3-29-2013 Open Records Request File E
6. 3-29-2013 Open Records Request File F
7. 3-29-2013 Open Records Request File G
8. 3-29-2013 Open Records Request File H
9. 3-29-2013 Open Records Request File I
10. 3-29-2013 Open Records Request File J

“They’ve turned over nothing, period,” said Patrick Riley, Publisher and Owner of The Lost Ogle. “We have given them nearly four months, and received absolutely zero information.”

After trying fruitlessly by mail and phone for over one hundred days, ACLU of Oklahoma representatives went to the Governor’s Office last Thursday to inspect public records in person, only to find that the Governor does not comply with an important provision of the Open Records Act. “The law requires public offices like the Governor’s Office to have at least one person available at all times to release records to the public for their inspection,” said Brady Henderson, Legal Director of ACLU of Oklahoma. “We found that the Governor’s practice is simply not to do that.”

The Lost Ogle’s request seeks a variety of records relating to Governor Fallin’s controversial decision to reject federal funding for medicaid expansion and refuse to set up a state health insurance exchange. Both decisions have had serious impact for all Oklahomans, and in particular some of the State’s most vulnerable citizens. Questions about the motivation behind the decisions led to multiple news organizations having sought the public records that can provide answers.

“So far, the Governor’s Office has stonewalled every attempt to bring these records to light,” said Brady Henderson, Legal Director of the ACLU of Oklahoma. While The Lost Ogle never received a response from the Governor’s office citing any objection to its request, other journalists seeking similar records have been denied access based on an assertion of “executive privilege,” a privilege that does not exist in Oklahoma law.

In its letter to General Counsel Mullins, the ACLU of Oklahoma expressed both a desire to avoid litigation and a readiness to pursue it if necessary to secure the right to open and transparent government guaranteed to the people of Oklahoma.

“We continue to hope that Governor Fallin’s office will choose to obey the law voluntarily,” said Henderson. “The letter we sent Tuesday should serve as a warning that continuing to flaunt Oklahoma’s Open Records Act can not only result in a waste of taxpayers’ resources, but in a potential recommendation to the Oklahoma District Attorney to investigate criminal charges,” Henderson continued.

The letter also warned Governor Fallin of the larger consequences of her decision not to comply with the law, cautioning that “such conduct rides roughshod over the people’s right to open and accountable government, leaving a shattered public trust and a smokescreen of secrecy in its wake.”

The letter, sent on Tuesday, March 26, is attached, and contains a full timeline of the numerous steps taken by the ACLU of Oklahoma and The Lost Ogle to obtain access to the records.

Instead, Representative Bennett listed a slew of actions that have occurred outside of Oklahoma as reasons to pass this bill, however, in most, if not all, of those examples those actions were a violation of the First Amendment and students would have been able to rely on the First Amendment to protect their rights.

It’s an understatement to say Rep. Bennett’s HB 1940 is unnecessary to protect the religious liberty of Oklahoma’s students, and I am amazed at his audacious claim that the First Amendment needs his help. In Rep. Bennett’s attempt to protect rights that are already protected, he confuses current law and invites the very violations he is allegedly interested in preventing. We urge the Senate to see this for the political stunt that it is and reject it on arrival.”

Learn more about the ACLU’s work to protect public school students’ religious freedom by curbing the practice of school-sponsored religion, and ensuring that students may freely express and exercise their faith here: http://www.aclu.org/religion-belief/religion-and-schools.

All comments attributable to Ryan Kiesel, Executive Director of the ACLU of Oklahoma

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“Of course we’re disappointed that we won’t be able to do more this legislative session.  I will seek the Speaker’s approval of an interim study that at least keeps the issue alive,” said Wesselhoft, R-Moore.

The Governor’s Secretary of Science and Technology, Dr. Stephen McKeever, and the Governor’s Chief of Staff had previously called on Wesselhoft and the ACLU of Oklahoma to table HB 1556 for the year because of concerns the legislation would jeopardize Oklahoma’s application with the FAA to serve as an unmanned aerial systems test site.

But after reviewing the application for themselves, Wesselhoft and the ACLU of Oklahoma strongly disagree with that conclusion.

“That just doesn’t add up,” said Ryan Kiesel, Executive Director of the ACLU of Oklahoma. “The FAA’s own application says a state can still receive the highest score available to an applicant if they can demonstrate how the proposed law would not affect the test site. That’s something we can easily do in this case because the bill does not even address the test site, and the military is totally excluded from the bill. However, the administration still refuses to drop their opposition.”

Wesselhoft and the ACLU of Oklahoma have maintained since the introduction of HB 1556 that the potential benefits of drone technology could coexist with the privacy of Oklahomans, but that without HB 1556, current privacy laws were inadequate.

“This is a matter of establishing some ground rules at the beginning of the game; to prevent abuses before they happen,” Wesselhoft said.

“We welcome a study of the many privacy issues raised by the operation of domestic drones,” said Kiesel. “However, it is very disheartening that brakes have been applied on a strong bipartisan effort which united the political right and left and would have made Oklahoma a national leader in protecting the privacy of its people.”

“I am a champion of both drone technology and privacy rights. I hoped that this proposed Oklahoma  law would have been the first and best model legislation for the entire nation. Unfortunately we must wait until the next session,” Wesselhoft said.

As the preeminent defender of First Amendment Rights in Oklahoma, the ACLU of Oklahoma has called on Rep. John Bennett to release the names of these schools he referred to in his testimony.

“If there are schools punishing or intimidating students because of their Constitutionally protected religious beliefs, we would like to know about it so we can investigate and, if necessary, defend the rights of those students,” said Ryan Kiesel, Executive Director of the ACLU of Oklahoma. “You would think someone who has taken an oath to defend the Constitution would not conceal that information,” Kiesel continued.

Despite repeated calls to his office requesting that the schools be identified, Rep. Bennett has, to date, not disclosed the names of any schools to the ACLU of Oklahoma.

“I’m sure if Rep. Bennett witnessed someone shoplifting, he would report that to the proper authorities. Surely Rep. Bennett views a potential violation of the First Amendment to the Constitution of the United States as at least as wrong as petty theft,” said Kiesel.

The ACLU of Oklahoma is urging Oklahomans to call and email Rep. Bennett to demand that he not cover up potential violations of students’ rights.

You can reach Rep. John Bennett’s office (405) 557-7315, or by emailing john.bennett@okhouse.gov.

Learn more about the ACLU’s work to protect public school students’ religious freedom by curbing the practice of school-sponsored religion, and ensuring that students may freely express and exercise their faith here: http://www.aclu.org/religion-belief/religion-and-schools.