Like countless other young women, Monica Jones fixed her hair, applied her make-up, put on a dress and set out on foot for an evening at a neighborhood bar in Phoenix. Along the way, Monica, a social work student, attracted the attention of two men in a car. They pulled over, flirted with her and offered her a ride to the bar. She accepted.

Before she knew it, Monica was under arrest, accused of being a sex worker.

The two men, who were undercover cops, arrested Monica for "manifesting prostitution" on the grounds that she was wearing a tight-fitting dress while walking through her own neighborhood, an area known for prostitution. But Monica knew the harsh truth that officers profiled her as a sex worker that weekend night in 2013 because she is a Black, transgender woman. Monica challenged her charge, and an appeals court overturned her arrest and conviction.

While Monica was ultimately exonerated–after nearly two years of legal battles, many other transgender women of color along with LGBTQ people (cisgender and transgender alike) are routinely profiled or targeted by law enforcement for sex work-related arrests because of their sexual orientation, their gender non-conformity and their transgression of gender stereotypes.

Women like Monica are frequently arrested for sex work for simply “walking while trans” – going about daily routines like walking to the grocery store, coming home from work or school, waiting at a bus stop or daring to wear a tight dress on an evening out. In a survey of Latina, trans women in Los Angeles, 60 percent said they were profiled by officers. At a community forum in New York, nearly all 200 transgender attendees reported the same experience.

Unsurprisingly, the U.S. Department of Justice has found that some major police departments practice biased and unlawful profiling of trans women as sex workers based solely on appearance – violations of the right to be free of gender discrimination and First Amendment protections for freedom of expression.

Gay men and LGBTQ youth, particularly those who are gender non-conforming and homeless, are similarly targeted. Police use laws prohibiting "public lewdness" and "solicitation" to discriminatorily target gay men who are cruising in public places for private and consensual sex partners, mainly by posing as undercover gay men, flirting with and entrapping unsuspecting victims – again, violations of equal protection under the law.

For example, courts found that the Long Beach police department illegally targeted only gay men while “allowing those interested in engaging in [lewd] heterosexual sex acts to proceed unfettered.” Further, a 2011 study found that LGB youth were 53 percent more likely to be stopped by the police, 60 percent more likely to be arrested before the age of 18, 90 percent more likely to have had a juvenile conviction and 41 percent more likely to have had an adult conviction than their heterosexual peers–when controlling for race, socioeconomic status and criminal behavior.

Worse still is the situation for transgender and cisgender women who engage in sex work. They are disproportionately targeted for arrest because of their gender and failure to conform to stereotypes about how women should look and behave.  Their male customers, on the other hand, are rarely charged – California data on prostitution related arrests in the last year and over a 10-year period reveals the same alarming gender disparity: two-thirds of those arrested are women but only one-third are men.

The ACLU has long opposed the criminalization of sex work because we believe the Constitution protects the rights of consenting adults to engage in private, consensual sexual activity without fear of criminal penalty. In other words the Constitution protects an adult’s personal decision to engage in intimate, sexual activity with another adult whether the intimacy is built on love, desire or done in exchange for money or other things of value like shelter, food or necessities. At a minimum, restrictions on that right must receive a high level of constitutional scrutiny before they can be allowed to stand.

The ACLU and an array of civil rights, legal and social services organizations argue these points in a friend-of-the-court brief filed last week with the Ninth Circuit Court of Appeals, which is hearing a constitutional challenge to California’s statute that prohibits solicitation and engagement in sex work for both buyers and sellers of sex.

Precedent supports our argument. In 2003, the Supreme Court struck down sodomy laws as unconstitutional. That ruling was based on three important principles that consenting adults have:

• the right to private sexual intimacy,
• the right to form and make decisions about intimate relationships that are sexual in nature and
• the right to privately engage in intimate conduct in one’s own bedroom.

The court recognized “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” It also said that the “state cannot demean [people’s] existence or control their destiny by making their private sexual conduct a crime.” We believe all these principles apply to an adult’s personal decision to engage in sexual activity with another adult in exchange for money, shelter, food or necessities. As the sodomy ruling–as well as the Supreme Court’s marriage equality ruling–make clear, moral disapproval of certain conduct–including sex work–alone cannot justify its criminalization.

Discriminatory enforcement of sex work-related laws also exposes LGBTQ people and women to much higher rates of violence at the hands of police. Transgender people are nearly four times more likely and transgender people of color six times more likely to experience physical and sexual violence from the police. A 2014 survey showed that 59 percent of transgender youth and 12 percent of LGB youth had been asked by law enforcement officers for sexual favors, and 50 percent of transgender youth and 22 percent of LGB youth reported being called slurs by law enforcement.

Joining us in our friend-of-the-court brief is a broad coalition of groups who also care deeply about the discriminatory enforcement of sex work laws and serve people negatively impacted by laws that criminalize sex work: API Equality-LA, Bienestar, Black Women for Wellness, California Rural Legal Assistance, Inc., California Women’s Law Center, Equality California, Familia: Trans Queeer Liberation Movement, Free Speech Coalition, Gender  & Sexualities Alliance Network, Gender Justice LA, Justice Now, Los Angeles LGBT Center, National Center for Transgender Equality, Transgender, Gender Variant, Intersex Justice Project, Translatin@ Coalition, Transgender Law Center and the Transgender Service Provider Network.

We hope this brief sends a strong signal to the court that it should apply a high level of constitutional scrutiny to California’s criminal statute penalizing solicitation and sex work and bear in mind the dark history and the current reality of discriminatory enforcement as it considers the case. More generally, courts may start to more deeply examine how laws used to ensnare suspected sex workers are discriminatorily enforced on the ground.

As the Supreme Court said when it recently struck down laws banning same-sex couples from marrying, “the nature of injustice is that we may not always see it in our own times.”

Melissa Goodman is director of the LGBTQ, Gender & Reproductive Justice Project at the ACLU of Southern California and Maria Carmen Hinayon is UCLA POP law fellow at the ACLU of Southern California.

By Matt Cagle

The ACLU of California has obtained records showing that Twitter, Facebook, and Instagram provided user data access to Geofeedia, a developer of a social media monitoring product that we have seen marketed to law enforcement as a tool to monitor activists and protesters.

We are pleased that after we reported our findings to the companies, Instagram cut off Geofeedia’s access to public user posts, and Facebook has cut its access to a topic-based feed of public user posts. Twitter has also taken some recent steps to rein in Geofeedia though it has not ended the data relationship.

Further steps are required if these companies are to live up to their principles and policies by protecting users of all backgrounds engaging in political and social discourse. So today the ACLU of California, the Center for Media Justice, and Color of Change are calling on Twitter, Facebook and Instagram to commit to concrete changes to better protect users going forward. Read our letters here and here.

We first learned about these agreements with Geofeedia from responses to public records requests to 63 California law enforcement agencies. These records revealed the fast expansion of social media surveillance with little-to-no debate or oversight.

But as we continued to comb through thousands of pages of documents, we saw emails from Geofeedia representatives telling law enforcement about its special access to Twitter, Facebook, and Instagram user data.

In one message, a Geofeedia representative tells police that the company has arrangements with Twitter and Instagram for user data. Right after that, the representative promotes a product feature that “covered Ferguson/Mike Brown nationally with great success.”

In another email from May 2016, a Geofeedia representative touts a “confidential legally binding agreement with Facebook.”

We now know the following about these agreements:

• Instagram had provided Geofeedia access to the Instagram API, a stream of public Instagram user posts. This data feed included any location data associated with the posts by users. Instagram terminated this access on September 19, 2016.
• Facebook had provided Geofeedia with access to a data feed called the Topic Feed API, which is supposed to be a tool for media companies and brand purposes, and which allowed Geofeedia to obtain a ranked feed of public posts from Facebook that mention a specific topic, including hashtags, events, or specific places. Facebook terminated this access on September 19, 2016.
• Twitter did not provide access to its “Firehose,” but has an agreement, via a subsidiary, to provide Geofeedia with searchable access to its database of public tweets. In February, Twitter added additional contract terms to try to further safeguard against surveillance. But our records show that as recently as July 11th, Geofeedia was still touting its product as a tool to monitor protests. After learning of this, Twitter sent Geofeedia a cease and desist letter.

Because Geofeedia obtained this access to Twitter, Facebook and Instagram as a developer, it could access a flow of data that would otherwise require an individual to “scrape” user data off of the services in an automated fashion that is prohibited by the terms of service (here and here). With this special access, Geofeedia could quickly access public user content and make it available to the 500 law enforcement and public safety clients claimed by the company.

Social media monitoring is spreading fast and is a powerful example of surveillance technology that can disproportionately impact communities of color. Using Geofeedia’s analytics and search capabilities and following the recommendations in their marketing materials, law enforcement in places like Oakland, Denver, and Seattle could easily target neighborhoods where people of color live, monitor hashtags used by activists and allies, or target activist groups as “overt threats.” We know for a fact that in in Oakland and Baltimore, law enforcement has used Geofeedia to monitor protests. Social media companies and their executives have expressed support for activists, movements, and free speech. Mark Zuckerberg endorsed Black Lives Matter and expressed sympathy after Philando Castile’s killing, which was broadcast on Facebook Live. Twitter’s CEO Jack Dorsey went to Ferguson. Above all, the companies articulate their role as a home for free speech about important social or political issues.

Yet there is a severe disconnect between these positions and the data access they have provided.

Beyond the agreements with Geofeedia, we are concerned about a lack of robust or properly enforced anti-surveillance policies. Neither Facebook nor Instagram has a public policy specifically prohibiting developers from exploiting user data for surveillance purposes. Twitter does have a “longstanding rule” prohibiting the sale of user data for surveillance as well as a Developer Policy that bans the use of Twitter data “to investigate, track or surveil Twitter users.” Publicly available policies like these need to exist and be robustly enforced.

Here is what we’re asking of the social networks:

• No Data Access for Developers of Surveillance Tools:Social media companies should not provide data access to developers who have law enforcement clients and allow their product to be used for surveillance, including the monitoring of information about the political, religious, social views, racial background, locations, associations or activities of any individual or group of individuals.
• Clear, Public & Transparent Policies: Social media companies should adopt clear, public, and transparent policies to prohibit developers from exploiting user data for surveillance purposes. The companies should publicly explain these policies, how they will be enforced, and the consequences of such violations. These policies should also appear prominently in specific materials and agreements with developers.
• Oversight of Developers:Social media companies should institute both human and technical auditing mechanisms designed to effectively identify potential violations of this policy, both by the developers and end users, and take swift action for violations.

The government should not have preferred access to social media speech for surveillance purposes. We are confident the companies agree. Facebook and Instagram have already cut off access to Geofeedia and Twitter should do the same. It’s also time for all three of the companies to live up to their words by taking the additional concrete steps outlined in our letters.

Note: The CEO of Geofeedia has asked to meet with us. We will see what he has to say for himself.

Matt Cagle is technology & civil liberties Policy attorney at the ACLU of Northern California.

The following was first published in the Voice of OC. 

Orange County has long been a national symbol of affluence.

Its median income ranks among the top 3 percent of all counties nationwide. It boasts a county budget topping $3 billion. Its economy is larger than more than half of all U.S. states.

It is also plagued by a grinding and deadly homelessness crisis that gets worse by the day. With all of the resources at its disposal, why, then, can’t the county find an effective way to help thousands of its most vulnerable residents?

A new report (Download .pdf) by the ACLU of Southern California asks that and many other questions —and astoundingly, elected officials in this rich and resourceful county cry poverty. “It’s not for lack of sympathy and understanding that our hands are tied,” Board Supervisor Shawn Nelson argued during a recent budget hearing, “Orange County does not have the ability to do what other counties have done.”

To its credit, the county hasn’t ignored the issue. In 2010, the Board of Supervisors approved a Ten-Year Plan to End Homelessness, which called for creating more permanent affordable housing—a strategy that studies show is the most effective way to end homelessness. But the ACLU SoCal report finds that today, more than six years later, the county is failing to follow its own blueprint.

County officials originally drew up the Ten-Year Plan to qualify for homelessness services from the U.S. Department of Housing and Urban Development. But stagnant or shrinking state and federal funds don’t come close to meeting the need. The ACLU SoCal report estimates that Orange County could effectively end homelessness by spending about $55 million per year above what it receives from federal and state sources. That represents only 1.7 percent of the county’s $3.2 billion budget.

As county officials steadfastly refuse to step up investments in local resources that are key to the Ten-Year Plan’s success, thousands of people literally have nowhere to live. The number of people experiencing homelessness per year increased by 20 percent from 2013 to 2015, local encampments are exploding, and according to Orange County Sheriff-Coroner data, the number of homeless deaths per year doubled from 2009 to 2015.

As noted in the ACLU SoCal report, affordable housing waitlists drag on for years, and the development of permanent supportive housing doesn’t come close to meeting the demand. Given the county’s sky-high rents, market-rate housing is simply out of reach for people experiencing homelessness.

The county’s refusal to spend money on real solutions to these problems will end up costing the taxpayers even more. Permanent affordable housing is ultimately cheaper than the expense of jail time, emergency room treatment and other harsh measures faced by individuals who are chronically homeless. Given that only 0.14 percent of the Orange County’s population is homeless—lower than the national average of 0.18 percent—the overall cost of housing them is minimal.

Orange County would do well to follow the example of cities, counties, and states that have successfully reduced homelessness by creating dedicated sources of funding to support housing-first strategies. Housing trust funds are one example—they are designed to bring in dedicated sources of funding for affordable housing, such as fees or loan repayments. The county, cities, corporations, and philanthropic organizations could contribute to the fund to support a coordinated, regional solution to homelessness.

Housing is critical to ending homelessness, but it is only part of the picture. Orange County must reverse course on policies that criminalize homelessness. The county and 33 out of its 34 cities have passed  misguided laws that ban innocent behaviors that homeless individuals cannot avoid, such as sleeping and camping in public.

These laws don’t fulfill their intended purpose, namely, to rid cities of homeless people. Because almost all Orange County cities have ordinances on the books that criminalize, there are few options for relocation and many people decide to stay in place and put up with police harassment.

Such policies only exacerbate the homelessness crisis by ensnaring people in the criminal justice system. People may find it more difficult to escape homelessness when they are burdened with hefty court fees and fines for violating nuisance ordinances and traumatized by police harassment. To get a little relief, some end up in isolated places such as dry riverbeds, foothills, and remote industrial areas, where they are both socially and geographically marginalized. Pushed into the margins, many lack basic necessities, such as food, restroom facilities, and even fresh drinking water.

The report urges the county to take a leadership role in ending these harmful policies.  It should follow the federal government’s lead in condemning criminalization, repeal ordinances that criminalize homelessness, and in allocating federal, state, and local funds, give priority to cities that do not criminalize homelessness.

The fact is, there is nothing preventing Orange County from scaling up their housing-first strategy and ending homelessness for good, except the political will to do so.

Eve Garrow is homelessness policy analyst and advocate at the ACLU of Southern California.