home > resources > archive ACLU Reporter: Winter 1999 Table of Contents: Database Privacy Hate Crime Legislation: Balancing First Amendment Concerns English-Only is Back: Representative Rowan Proposes an Initiative to Make English the Official Language of Utah Case Update: Crank v. Utah Judicial Council Case Update: Weaver v. Nebo School District, et al An Easy Way to Give: ACLU of Utah Foundation Establishes Securities Brokerage Account _________________________ Database Privacy By Luke Timmins Rebecca Schaeffer was the lead actress on the TV series "My Sister Sam." On July 18, 1989, a fan who used a private investigator to track down where she went, where she shopped, and where she ate, murdered her. How? The investigator had her social security number, which helped the stalker search various databases to track her movements. Finally, the investigator went down to the California Department of Motor Vehicles, paid a $1 fee, and got Rebecca Schaeffer’s home address. The stalker then went to her home and shot her. But hey, wait a minute. That was 1989. OK, OK, so today it costs $2. If you stroll right on down to the Utah DMV, you can provide a name or license plate number and obtain the car owner’s home address, year-make-model of the vehicle, and the vehicle identification number. Well, maybe you are too lazy to actually go down to the Utah DMV. Due to the advent of the Internet, finding everything you ever wanted to know about somebody is easier than ever. You can search the national DMV database for a nominal fee, and then move on to the national vehicle identification number database to research the car owner’s vehicle, namely what work has been done on it, where the shop was located that did the work, and how many people have owned it. Want more information? Try www.glr.com/stalk.htm. This wonderful site is known as "The Stalkers’ Home Page," and it provides a nice list of databases that can return a wealth of information on practically any person in the country. Ever have a phone number? Ever register to vote? Yup, you are on these databases. Indeed, we are now living in a database society that is readily available to anybody with a computer. However, a problem exists with all these databases. It is often difficult to "tie" them all together. If only we had a unique identifier for every person in the country. Then cross-referencing these computer databases from remote sources to create dossiers on individuals would be really easy. Oh wait, we already do have this. It’s called your social security number, and it provides a consistent and easily managed identifier that becomes the key to your identity within these databases. Whether you’ve paid taxes, opened a bank account, been accepted for a credit card, joined a gym or a shopping club, or applied for a video rental card, a driver’s license or a mortgage, chances are you’ve been asked for—and given out—your SSN. But why do we give them out like hotcakes? Most consumers don’t think twice about selling their transactional privacy for convenience. Companies need personal identification numbers to keep their records straight, and consumers have gotten so used to handing over their 9-digit electronic soul that nobody seems to mind. This is the problem. An increase in technology should not automatically mean a decrease in our right to privacy. We DO have a right to our personal data. Sadly, advances in computers and technology have not been complemented by laws to protect individual rights. Simple guidelines offered in the 1973 Code of Fair Information Practices still are not followed today by both the government and the private sector: 1.There must be no personal data record-keeping systems whose very existence is secret. 2.There must be a way for individuals to find out what information is in her/his file, and how it is being used. 3.There must be a way for an individual to correct information in her/his records. 4.Any organization that uses these records must assure the reliability of the data for its intended use, and must take precautions to prevent its misuse. 5.There must be a way for an individual to prevent personal information gathered for one purpose from being used for another purpose without her/his consent. So, why bring up personal privacy and social security numbers you ask? Well, let me tell you a little story. On April 1, 1998, I broke into the main e-mail server at the University of Utah, u.cc.utah.edu. I was running for a senate seat in the Associated Students of the University of Utah, and I thought that sending out e-mail messages for my political party would be a good way to get votes. I was hoping that I could find a directory structure that would allow me to compile a list of e-mail addresses at the University, but what I found led me to a day in jail and a third degree felony charge. After stepping through the computer’s security, I obtained administrator access and began to poke around. I found a rather large file that upon inspection was exactly what I was looking for: a list of over 23,000 e-mail addresses, names, and phone numbers. I quickly wrote a program to strip the e-mail addresses from the file, and then it dawned on me. These names weren’t ordered alphabetically, they were ordered by student identification number. And at the University of Utah, the student identification number is the student’s social security number. At least it used to be. Following this incident, all student identification numbers were changed to simple index numbers. The University contends that the change had nothing to do with my break-in. Anyway, I couldn’t believe that social security numbers were being used as simple sort keys on an e-mail list. To make sure, I looked myself up, and sure enough, there was my 9-digit SSN. So what did I do? I downloaded the stripped e-mail addresses, and copied the main file to another directory. I then modified the password file in hopes of alerting a system operator that their machine had been cracked. Well, about two months later, they found out, they alerted the entire student populace that their SSN’s had been stolen, and I had a warrant out for my arrest. First let me say that I made a really bad call by not directly alerting the university. Because of this, a lot of people got the bejezus scared out of them. Indeed, they should have been scared, as I was, that a large entity that we had entrusted vital personal data to had been careless with it, but that in no way excuses my actions. So, the University of Utah no longer uses SSN’s, we should all feel better, right? Wrong. This kind of privacy violation happens daily. From companies that ask for credit card numbers then leave them accidentally vulnerable to crackers who obtain them (this has happened to numerous on-line providers as well as on-line auction firms), to other entities who request SSN’s for identification purposes then either leave them exposed to the public or misuse them. For example, at last count, over fifty Universities around the country have had "incidents" where students’ SSN’s and academic records were "accidentally" left available for public inspection over the Internet (SUNY, U. Illinois, Virginia Tech, U. Penn, Iowa State, Duke…) I leave you with these thoughts. Don’t be sheep. The next time someone asks you for personal information, don’t be afraid to ask them: 1) why they need it; 2) how it will be used; and 3) how it will be protected. After all, it’s YOUR information, and as the law is still catching up with technology, we can only rely on ourselves for protection. Use encryption, be paranoid, ask questions, and we can all start to claw our electronic privacy back. Take back your data! For more information on database privacy, check out www.eff.org or www.aclu.org. _________________________ Hate Crime Legislation: Balancing First Amendment Concerns By Karen Denton The American Heritage Dictionary defines hate as "intense dislike or animosity." However, defining hate as the basis for a crime is not as easy without possibly jeopardizing constitutional rights in the process. The complexity of this problem formed the crux of a debate between Stephen Clark, ACLU staff attorney, and Terry Kogan, University of Utah law professor and member of the Civil Rights Task Force on Hate Crimes Legislation. Their discussion occurred during the ACLU board meeting on November 10, and marked a new direction for the board in which it will begin debating and formulating chapter policies on a variety of issues. In this case, Stephen supported the absolutist First Amendment rights of speech and assembly, while Terry defended the need for hate crime statutes. Hate crime laws generally add enhanced punishments to existing statutes. Utah law charges anyone with a third degree felony who "commits any primary offense with the intent to intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person." No specific categories or classes of victim, such as gender, sexual orientation, religion, or ethnicity, are mentioned. Stephen opened the debate with the statement that society needs to respond to acts of hate with outrage, but we also need to proceed with caution in crafting this legislation. Acts of violence can not be protected under rights of speech, but neither can we punish someone for his or her absolute beliefs. He outlined three areas of concern about hate crimes legislation: 1) protecting the individual’s rights of association and speech; 2) determining the boundaries of the law that will reach and change people’s hearts and minds; and 3) defining people as members of categories or discrete units that are the target of intentional discrimination. To address the first area, Stephen emphasized the need to follow evidentiary rules of law. Simple association with groups such as Skinheads does not automatically prove intent to harm or intimidate another person. Then he posed the question whether the law can really change the human heart; it has not been terribly effective up to this point. Finally, he suggested that establishing protected categories may not contribute to social cohesiveness, but may create special rights for some groups. The result is that some groups will always feel excluded. Terry clarified that any hate crime statutes should not prohibit speech. The emphasis is on conduct that has a discriminatory motive. It is important, therefore, to have laws with enhanced punishments. He reasoned that discriminatory behavior inflicts greater harm on the victim and society than crimes committed for other purposes, because it: 1) increases the probability of retaliation; 2) is far more emotionally deleterious; and 3) incites community unrest. Hate crime laws send a symbolic message about societal standards and teach a lesson about permissible conduct. While it may be problematic to prove motive, other laws allow the investigation into intent. For example, under Title VII employment discrimination law, employer’s motives for hiring and firing decisions are regularly examined. Title VII also publicly identifies groups that have been historically discriminated against, even though Terry acknowledged that selecting certain categories for hate crime statutes raises issues of equal protection. We are essentially creating laws that are inherently unequal to equalize protection, but this is a process we need to go through. After Stephen and Terry laid out their arguments, they opened the discussion for questions from the board. One line of questioning asked whether the punishment shouldn’t be part of the sentencing rather than the statute, and if enhancement categories merely took away the judge’s discretion. Terry answered that a statute sent a symbolic message that would be lost through sentencing only, and that while it may remove the judge’s flexibility, standardization is the trend. Another series of questions addressed the rules of evidence. We protect defendants from all other previous convictions such as burglary but this may be difficult with hate crimes. Terry agreed, but pointed out that we use motivation all the time. These cases would be one more example of premeditated behavior, although it is not clear how someone would mount a defense against these charges. In the end, both Stephen and Terry agreed that any legislation should follow national ACLU guidelines: 1.Hate crime legislation must be narrowly and clearly drafted to specify the criminal conduct subject to punishment; 2.The discrimination portion of the crime must be established with proof beyond a reasonable doubt, just as in any other crime; 3.Hate crime legislation should be limited to situations where the criminal conduct involves harassment, injury, or threat of physical injury to the victim or the victim’s property. 4.No evidence of expressions or associations may be introduced at trial unless this evidence is specifically related to the crime charged; and 5.This type of legislation must not be used as a pretext to investigate or punish constitutionally protected thoughts, opinions, beliefs, expressions, or associations. Both Stephen and Terry are to be commended for clarifying some of the complexity surrounding hate crime legislation. The ACLU of Utah board of directors will eventually be asked to formulate and vote on a chapter policy. This discussion will form part of the basis for that decision, which may be a little easier due to their assistance. Karen Denton is an ACLU of Utah board member and the executive director of the Homeless Children’s Foundation. Early next year, Terry Kogan and Stephen Clark will participate in a public debate on hate crime legislation at the University of Utah’s Hinkley Institute of Politics. Look for an announcement in the ACLUReporter. _________________________ English-Only is Back: Representative Rowan Proposes an Initiative to Make English the Official Language of Utah By Cori Sutherland, Deputy Director On Monday, January 18, the Utah State Legislature will convene, and at some point during the 1999 session, lawmakers will review the controversial initiative, "English as the Official Language of Utah." Filed by Representative Tammy Rowan (R-Orem), the initiative states that except in limited circumstances, "the English language is the sole language of the government." The proposed initiative is almost identical to Rowan’s 1998 "English-only" legislation, which died in committee and never made it to the House floor for a vote. This year, Rowan used paid petitioners from the national company, National Voter Outreach, and collected the number of signatures necessary to ensure that the entire House of Representatives will vote on her initiative. Importantly, the legislature will not be able to amend or modify the initiative in any way – they can only enact or reject it. Rowan has promised that if the initiative fails in the legislature, she will continue collecting signatures so that she can place it on the ballot in the year 2000. The American Civil Liberties Union of Utah opposes the proposed initiative, which, if passed, will be the most restrictive official English law in the country. We are very concerned that such a law will severely compromise the due process, equal protection, and First Amendment rights of those who are not yet proficient in English, and limit effective communication between government employees and the public. In discussing the proposed initiative, it is important to state accurately what it will and will not accomplish. If passed, this initiative will prevent state and local governments from providing services in languages other than English. It even goes so far as to prohibit entities that are merely regulated by state or local governments from issuing non-English publications. The law’s effects would be so widespread, that no one – not even the sponsor – knows what its real impact will be on existing services and programs. Supporters of the initiative base their arguments on the mistaken belief that such a restrictive law is necessary in order for the state to avoid liability. They erroneously maintain that by providing services in some languages, but not in all of those spoken by Utahns, the state opens itself up to lawsuits on behalf of those language minorities who are not served. However, there is simply no case law that holds that the failure to extend assistance to all language minorities, where the government has chosen to serve some, violates the constitution. The Voter Rights Act, for example, states that ballots will be printed in a language other than English if the population speaking that language represents at least 5% or 10,000 of the voting age population within a particular voting district. No one has ever suggested that the act’s failure to provide language assistance to language minority groups who do not meet these numerical thresholds violates their constitutional rights. Indeed, setting these sorts of limits is a reasonable way to provide services. The failure to provide services, however, has led to costly lawsuits against the state and its subdivisions. For example, in 1991, the Alabama Department of Motor Vehicles did away with its longtime practice of administering driver’s license exams in several languages, and chose to conduct exams in English only. This year, Martha Sandoval successfully challenged the Alabama DMV in court, and a federal judge ruled that their practice did indeed violate the federal Civil Rights Act. Alabama is currently facing a similar lawsuit against a county tax assessor, who refused to grant non-English speakers tax exemptions to which they were legally entitled. Utah’s proposed initiative does not account for either one of these situations, and it is unknown just how many lawsuits our state will face as a consequence of a poorly drafted law. Utah’s proposed initiative might face an even broader legal challenge. A recent Arizona Supreme Court decision calls into question the constitutionality of laws that prohibit government employees and officials from using languages other than English. Ruling that the state’s English-only amendment is unconstitutional, the court found that the amendment would deprive people with little or no English from accessing information about government "when multilingual access may be available and may be necessary to ensure fair and effective delivery of governmental services to non-English-speaking persons." Utah’s initiative is similar to the Arizona amendment, and if passed, it will be interesting to see how it is impacted by the Arizona decision. Legal liability is important in the debate on English-only, but there are other significant issues that must be considered as well. The proposed official English initiative forces us to ask ourselves what sort of a community we want to create. Representative Rowan claims that this initiative will facilitate communication and increase economic opportunities for Utahns who are not yet proficient in English. Those are excellent goals, and ones that the ACLU of Utah endorses wholeheartedly. However, we maintain that there are alternative ways to accomplish these goals that do not pose potential legal problems and, more importantly, divisiveness within our communities. Your representative needs to hear from you about the proposed official English legislation. To learn more about the ACLU’s position on this legislation or to find out how to contact your representative, check out our web page or call us at (801) 521-9862. Senator Pete Suazo (D-Salt Lake) has proposed an English Plus Resolution. Similar to the English Plus Resolutions passed by both the Ogden and Salt Lake City Councils last year, the resolution celebrates Utah’s diverse linguistic communities, and opposes English-only measures such as Rowan’s proposed initiative. Importantly, Suazo’s resolution gives lawmakers and citizens an alternative to the incredibly restrictive official English initiative. Suazo’s resolution can also be viewed on our web page. _________________________ Case Update: Crank v. Utah Judicial Council For the better part of this century, Native Americans have been excluded from jury service in San Juan County, Utah. Few Native Americans appeared on jury lists, and it was not until the mid-1970’s that an Indian juror actually served on a trial jury, despite the fact that Native Americans constitute over 50% of that county’s population. This shameful situation was addressed in a 1993 lawsuit brought by the American Civil Liberties Union of Utah and Eric P. Swenson, a Monticello attorney. In 1996, a consent decree was entered in which the Utah Judicial Council – the body that compiles jury lists for Utah district courts – agreed to take measures to include Native Americans on jury lists and to institute other much needed jury reforms. Unfortunately, enforcement proceedings had to be brought when it was revealed that the Utah Judicial Council had not complied with the consent decree. The Council had not used jury lists in the Seventh District in San Juan County in 1997 and 1998 that contained sufficient numbers of Native Americans. The Council had failed to file a jury plan outlining the reforms mandated by the consent decree. The Council had also failed to file annual reports with the Court stating what had been done to comply with the consent decree. Evidence presented at a December trial demonstrated many problems with the Council’s jury system, including unacceptably low number of Native American jurors on the jury lists. A particularly troublesome problem came to light when it was demonstrated that jury lists have thousands of duplicate juror names, bringing into question the reliability of the jury system, not only in San Juan County, but throughout the rest of the state as well. In December, state Judge David Roth ordered the Judicial Council to file a jury plan. The Court also ordered the Council to file annual reports. And Judge Roth required that the Council take reasonable measures to ensure that it is in compliance with the consent decree hereafter. The Court also issued interpretations of the consent decree and revised the agreement of the parties in order to best implement the jury reforms agreed to by the parties. The ACLU of Utah and attorney Swenson will continue to monitor the Judicial Council’s compliance with the consent decree in order to make sure that Native Americans are given an equal opportunity to participate in San Juan’s jury selection system in the future. _________________________ Case Update: Weaver v. Nebo School District, et al In late November, U.S. District Judge Bruce Jenkins cleared the way for Wendy Weaver to resume her duties as a girls’ volleyball coach at Spanish Fork High School in the Nebo School District. The ruling was in response to an October 1997 complaint filed by the ACLU of Utah, the ACLU’s National Gay and Lesbian Rights Project, and cooperating attorney David Watkiss. The complaint argued that the Nebo School District violated Weaver’s First Amendment and Equal Protection rights when school officials ordered her not to talk about her sexual orientation in or outside of the classroom, and refused to allow her to return to her successful coaching position. On November 25, one day before Thanksgiving, the court ordered the school district to remove letters of reprimand from Weaver’s file and allow her to coach during the 1999-2000 volleyball season. Weaver was also awarded $1,500 in damages – the amount she would have earned coaching the team this year. In his decision, Judge Jenkins states that, "Although the Constitution cannot control prejudices, neither this court nor any other court should, directly or indirectly, legitimize them." He noted that while Weaver was threatened with disciplinary action for discussing her intimate associations and sexual orientation, no other teacher in the school district faced the same restrictions. The judge also stated that school officials have been unable to point to any problems since her sexual orientation was revealed. Jennifer Middleton, staff attorney for the ACLU’s Gay and Lesbian Rights Project, commented that, "this case was not about what was said in a classroom or about Wendy Weaver’s effectiveness as a teacher or coach. It was about the district objecting to Weaver’s positive example as a successful member of the school community who also happened to be a lesbian." Matt Coles, the project’s director, noted the importance of this case, saying the ruling was the best decision in a case involving gay and lesbian teachers. In a December 23, 1998 article, the Attorney General’s office told the Salt Lake Tribune that they will not appeal the ruling. The ACLU of Utah and cooperating attorney Rick Van Wagoner are currently representing Weaver in a civil suit brought by the Citizens of Nebo School District for Moral and Legal Values. The suit was brought in response to Weaver v. Nebo School District, et al, and the group contends that Weaver is unfit to teach because she is a lesbian. We have asked that this case be dismissed, and it is still pending in 4th District Court. Click here to view Judge Jenkins’ decision. _________________________ An Easy Way to Give: ACLU of Utah Foundation Establishes Securities Brokerage Account By Mark Quayle, President, Quayle Asset Management, Inc. In an effort to accommodate donations of securities (stocks, bonds, mutual fund shares, etc.), the ACLU of Utah Foundation, a 501(c)(3) nonprofit corporation, has recently established a brokerage account with the institutional division of Charles Schwab & Company, the nation’s largest discount broker. Now, rather than simply donating cash to the ACLU of Utah, securities may also be given. Donating appreciated securities to the ACLU of Utah allows donors the same income tax deduction as gifting cash. However, once donated securities are the property of the ACLU of Utah, they can be liquidated without incurring any capital gains tax liability for either the donor or the ACLU of Utah. In essence then, what would have eventually gone to the IRS, had a donor liquidated the securities itself, is retained by the ACLU of Utah. This is possible because of the nonprofit status of the ACLU of Utah Foundation. Because of this tax advantage, most financial advisors recommend gifting appreciated shares, if you have them, rather than cash. If you would like to donate securities to the ACLU of Utah, please feel free to call us at (801) 521-9862, or contact Mark Quayle, who assists with the securities brokerage account, at (801) 533-9581. Return to top of page

ACLU OF UTAH UNION OR FOUNDATION? | USER AGREEMENT | PRIVACY POLICY | CONTACT US © 2008 ACLU OF UTAH · 355 NORTH 300 WEST · SALT LAKE CITY, UT 84103 · T (801) 521-9862 · F (801) 532-2850