Latest Blog Entries

The IHR Clinic blog is written and edited by students and recent alums of the University of Chicago Law School. Now featured on Medium (formerly on the Huffington Post), the IHR Clinic blog examines contemporary issues in human rights, as well as social, political and cultural events viewed through the lens of human rights. 

What do we say to Big Brother? Not today.

by Aaron Tucek
Class of 2019

In 2013, the Illinois General Assembly passed landmark legislation protecting residents from government surveillance drones.  Now they want to roll back those protections and jeopardize the privacy of any person who exercises their right to peacefully assemble.  This legislation is bad for human freedom and wrong for Illinois.

Imagine a world in which the government is always watching.  At a Fourth of July parade, police drones pass above the parade route every few minutes, facial recognition cameras scanning the crowd.  Officers pull aside and question people who stand out from the crowd because they look different, or have a traffic violation, or a history of public civil disobedience.  At a high school homecoming football game, the process repeats itself.  The facial recognition drones softly buzz above the stadium, cataloging the crowd, seeking out even the slightest hint of suspicious behavior.  At a protest against yet another police shooting of a young black man, the drones are back.  Scanning, seeking, ready to call forth the pepper spray and handcuffs and silence the criticism.

A bill working its way through the Illinois legislature would legally authorize this chilling reality.  Senate Bill 2562 would allow the police to use surveillance drones at any gathering of more than 100 people for “legitimate public safety purposes.”  These purposes include (but are not limited to): “evaluating crowd size, density, or movement; assessing public safety vulnerabilities or weaknesses; determining appropriate staffing levels for law enforcement or other public safety personnel; or identifying possible criminal activity.”  Police already have the power to use drones in response to dangerous situations.  What this legislation adds—and which current law explicitly rejects—is the active, continuous, and suspicion-less surveillance by drone of anyone and everyone at an event.

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Current law in Illinois is crystal clear: subject to limited exceptions, “a law enforcement agency may not use a drone to gather information.”  The circumstances in which police may use drones as a surveillance tool are limited to six situations:

  1. There is a high risk of terrorist attack.
  2. The police obtain a search warrant based on probable cause.
  3. The police have a “reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent harm to life, or to forestall the imminent escape of a suspect or the destruction of evidence.”
  4. Locating a missing person.
  5. Photographing crime scenes or traffic crash scenes.
  6. Responding to a disaster or public health emergency.

The Illinois General Assembly carefully crafted this legislation to balance the privacy of Illinois residents with the needs of police to respond to emergencies and enforce the law.  The overwhelming majorities this bill won in both the Illinois House and Senate suggest that the legislature got the balance right.  Importantly, this balance subjects the use of drones for investigative purposes to the same standards of probable cause and reasonable suspicion that is at the core of American criminal law.  As a result, a criminal suspect can fear government surveillance by drone, but the law shields a peaceful protester exercising their constitutional rights to speech and assembly from Big Brother’s eye in the sky.  At the same time, the law ensures that law enforcement have the flexibility to rapidly deploy drones in response to violence or threats to life.

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This protection from drone surveillance for individuals put Illinois at the forefront of an international debate over how to best protect the privacy rights of protesters.  From Zuccotti Park to Tahrir Square to Kiev, protest movements have played an important role in shaping the history of the last decade.  And as police violence against protesters in places like Ferguson have grabbed headlines, the international community has sought to give a clearer definition of government obligations when policing assemblies. 

To this end, the United Nations Human Rights Council in March 2014 directed the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions to produce a joint report laying out practical recommendations for protest policing.  This report strongly reaffirmed “the inalienable right to take part in peaceful assemblies” and found that states have obligations to affirmatively protect and facilitate this right. 

The Special Rapporteurs laid out two international standards to which such surveillance must adhere.  First, “[t]he collection and processing of personal information . . . must comply with protections against arbitrary or unlawful interference with privacy.”  Second, “[l]egislation and policies regulating the collection and processing of information relating to assemblies or their organizers and participants must incorporate legality, necessity and proportionality tests.”  The report then explains:

Given the intrusiveness of such methods, the threshold for these tests is especially high.  Where they interfere with the exercise of rights, data collection and processing may represent a violation of the rights to freedom of peaceful assembly and expression.

Current Illinois law regarding drone use likely meets these standards.  The clear statutory language outlawing drone surveillance generally while identifying particular exceptions satisfies the legality principle and greatly reduces the chances of arbitrary use.  The legal restriction of drone use to emergency situations in which life is threatened or in which law enforcement must act quickly satisfies the proportionality principle.  Finally, the probable cause and reasonable suspicion requirements screen out unnecessary surveillance, thereby satisfying the necessity principle.  Under its current legal regime, Illinois thus serves as an international role model for regulating surveillance drones in the context of protest.

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Passage of SB 2562 would not only abdicate this position of leadership, but it would actively threaten the human rights of protesters.  The wide discretion, the near certainty that the power will be used along with increasingly sophisticated facial recognition technology, and the danger that it will be used discriminatorily, poses a profound threat to basic human rights.  As long as police can articulate some vague public safety reason for the surveillance, they may legally do so.  There need be no pressing danger or exigency under this proposal.  The simple act of gathering together for an event is enough to justify the privacy intrusion.  The abandonment of the probable cause and reasonable suspicion standards in the events context mean judgements of necessity need not guide the deployment of drones.  This legislation opens the door to police using drone surveillance simply because they want to, not because they need to in order to effectively respond to the situation.  In short, SB 2562 categorically defines most public gatherings as legally suspicious on their face.

The stakes here are high.  There can be no more fundamental rights in a democratic society than to speech or to assembly.  If freedom means anything, it surely must mean the ability to speak your mind or gather with the people of your choosing without fear of government reprisal.  This principle is enshrined in the Illinois Constitution, the United States Constitution, and the Universal Declaration of Human Rights.  It is in our social, cultural, and legal DNA.

The active, continuous, and suspicion-less surveillance made possible by drones interferes with these rights.  As both the American Civil Liberties Union and the Chicago Sun-Times Editorial Board point out, such surveillance will deter and prevent people from exercising their rights.  And thanks to the City of Chicago’s long history of abusive policing practices, we cannot be naïve about where the most of the burden of this surveillance will fall: on activists seeking economic, social, or racial justice; and upon black and brown residents.  Illinois should lead the way on the issue of drone surveillance by rejecting SB 2562.

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As Benjamin Franklin famously said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”  A democratic society, of course, constantly must balance liberty with safety, but the false promise of some slight increase in safety can never justify violating fundamental freedoms.  Yet this is precisely the tradeoff SB 2562 asks Illinois residents to make.  It is not worth it.  The rights to freedom of speech and assembly are bedrock principles upon which our democracy is built, and they must be defended.  Now is the time for Illinois to choose leadership in human rights, and to vote Big Brother right out of the sky.

Is the Glass Half Empty? The Murky Future of the Right to Water in International Law

by Carly Gibbs, University of Chicago Law School ‘18

Water is unquestionably the essential building block of life. We divert rivers to grow crops and provide electricity. We can’t last more than a few days without a drink of the stuff. But in an era of climate change, resource competition, and continued population growth, our access to freshwater as a species has never been more at risk. According to the United Nations Office of the High Commissioner for Human Rights, more than 884 million people lack access to improved sources of drinking water and a whopping 2.6 billion of us don’t have access to improved sanitation facilities as of 2015. But even the United States worries about having access to water — take California’s recent drought as an example. Protecting access to water is critical for every person.

But is there actually a right to protect? After all, there’s nothing about protecting a right to water in the United States Constitution or that of many other countries. International law, however, may provide the answer. In 2010, the United Nations General Assembly recognized the “right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” As far as the UN is concerned, human rights treaties protect the right to water in a way that is “legally binding.” So while there is support for the claim that the right to water is protected by international law, many questions remain about the exact nature of the right, the available remedies, and the ways in which legal tools can be made to fit the complex reality of how people and states access water.

What treaties protect this right? Articles 11 and 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), ratified by many countries (though not by the United States), provides for the right to an adequate standard of living and enjoyment of the highest attainable standard of mental and physical health. Since access to water is crucial to developing agriculture, providing adequate sanitation, and otherwise leading a life in human dignity, some have argued that the UN Committee on Economics, Social, and Cultural Rights (CESCR) has read into the treaty an implied right to water. And what about the right to life as protected by the International Covenant on Civil and Political Rights (ICCPR)? While the treaty does not explicitly define the right to water, both the UN and the International Court of Justice have suggested that “violations of certain economic, social and cultural rights may amount to violations of the right to life.” And signatories of the ICCPR can’t derogate, or refuse to comply with the provision for the right to life. There’s a strong argument that international human rights law protects our right to water.

Recognizing that right matters more now than ever. Underground water resources in the form of freshwater aquifers are quietly vanishing. In the United States, farmers are drawing down water from the Ogallala Aquifer at an unsustainable rate despite being aware of the risk of depletion for more than six decades. Cities around the world are sinking as soil collapses into empty spaces left by depleted groundwater. Multiple years of drought in Syriawiped out many farmers’ livelihoods and may have helped spur the conflict that began in 2011. As population growth and climate change draw down freshwater resources, the value of recognizing a right to water becomes ever more important.

The problem gets even thornier when we realize that many of these are sharedwater resources in the form of rivers crossing from country to country or aquifers straddling international borders. Divvying up access to such water sources is already problematic. The mountain aquifer underneath the West Bank, for instance, is entirely controlled by Israel. Israel allocates about 80% of the flowing water to Israel and Israeli settlements and only 20% to Palestinians, sparking anger among Palestinians who claim the unequal share has crippled their agriculture. International law is a bit less clear on the issue of shared access to water sources. Some conventions on waterways, like the 2004 Berlin Conference and the 1997 Watercourses Convention, suggest that states are bound by customary international law to take measures to prevent significant harm from coming to neighbor states. Does that translate into a requirement that states refrain from drawing down on shared resources at an unsustainable rate? What do we do if one state takes more than its fair share of such a resource? And how do we determine what makes a “fair share” in the first place?

Even if we can point to a consensus about what should happen under international law, how do we make sure countries actually follow through on their promises? One way is for countries to bind themselves by signing treaties that proscribe certain consequences for violations. Countries may allow for the International Court of Justice to be responsible for settling water disputes based on international law and agree to abide by any orders. Another way is international pressure. Many countries care about their international reputation. If we create an international norm requiring respect and the equal allotment of shared resources, countries may bind themselves to avoid shame.

Declaring that water should be a human right is simple. The logistics of actually enforcing that right are much more complicated. But in an era of depleting water resources, we can’t just bury our heads in the sand. Countries need to step up to the plate and take an active role in safeguarding everyone’s access to water resources.

Pursuing Humane Prison Practices: Solitary Confinement Reform in the United States

by Megan Coggeshall, University of Chicago Law School Class of 2019

In the United States alone, there are an estimated 80,000 inmates held in solitary confinement. These people are kept alone in their cells for an average of 23 hours per day and have very little opportunity for human contact. The cells where inmates are isolated are small—on average 85 square feet—and contain a bed and desk, sometimes both made of concrete, as well as a metal toilet-sink combination. Most cells don’t separate the toilet from the rest of the cell, leaving inmates to eat within close proximity to it. Inmates generally spend the one hour outside their cell exercising alone in a small, sometimes caged-in area, that isn’t always outdoors. When these inmates are allowed visits, they are separated from their families by a partition, so they may go years without any meaningful human contact.

There isn’t a clear explanation for the starkness of conditions in American solitary confinement units. However, there is a higher public demand for punitive treatment of prisoners in the United States than in many other countries. This public sentiment is exacerbated by the proliferation of for-profit prisons that try to cut whichever services they can to reduce costs, and the predominant view in politics that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Two things, however, are clear: time spent in solitary confinement is deeply harmful to both the mental and physical health of inmates, and one struggles to identify a real benefit of the practice that could justify the cost. Many inmates experience panic, anxiety, rage, depression, and hallucinations in response to solitary confinement. Inmates in solitary confinement also engage in disproportionately high rates of self-harm and suicide compared to the general prison population. Common physical harms of prolonged solitary confinement include headaches, hypertension, heart palpitations, digestive problems, and weight loss. These harmful effects can become permanent within 15 days, making reintegration into the general prison population and release from prison difficult. Studies suggest that time spent in solitary confinement increases recidivism, especially when prisoners are released into the community directly from solitary confinement.

According to international human rights standards, the American status quo isn’t compatible with basic principles of human dignity. Indeed, the Office of the UN High Commissioner for Human Rights recommends abolishing or strictly restricting the use of solitary confinement. Even without eliminating solitary confinement, there is much that the United States can do to ensure more sincere compliance with Article 10 of the International Covenant on Civil and Political Rights, which guarantees the right of all inmates to be treated with humanity and respect for their inherent dignity. Part of this requires recognition that, under some circumstances, the use of solitary confinement can be considered torture, or other cruel, inhuman, or degrading treatment or punishment (CIDT). Imprisonment—the loss of freedom—is itself a profound punishment, and prison conditions should not aggravate inmates’ suffering.

Mindful of these considerations, the United Nations created prison standards to guide countries’ prison policies and ensure they do not subject inmates to conditions amounting to torture or CIDT. The latest version of the Standard Minimum Rules for the Treatment of Prisoners was published in 2015 (known as the Mandela Rules). Many of the United States written policies for federal prisons conform to these guidelines. However, there are also many situations where the Mandela Rules go further to protect the health and well-being of inmates, particularly when considering the amount of discretion American prison officials have over prison operation in practice. For example, unlike in the United States, the Mandela Rules require that prisoners have access to at least one hour of outdoor exercise per day. The Rules also require more human contact by prohibiting limitations on family visits as a disciplinary sanction and allowing for social contact among prisoners. Additionally, and perhaps most importantly, the Mandela Rules limit the number of consecutive days a prisoner can be in solitary confinement. In fact, the UN considers indefinite solitary confinement and, in most cases, solitary confinement exceeding 15 continuous days, to be torture or CIDT due to the potentially permanent health effects described earlier.

This is not to say, however, that change is not possible in American prisons. In fact, the past few years have seen many reforms at the state and federal levels that are bringing the United States closer to compliance with the Mandela Rules and to ensuring humane treatment of inmates in solitary confinement.

For example, in 2016, then president Obama issued an executive order banning solitary confinement for juvenile offenders in the federal prison system. This executive action also prohibited solitary confinement as a disciplinary measure for prisoners who commit low-level infractions. When solitary confinement is used, the new policies implement a Department of Justice report which suggested increasing out of cell time to improve mental health, and discouraged placement in solitary confinement during the last 180 days of inmates’ terms to facilitate the transition back to the community. Additionally, the rules now limit solitary confinement as punishment for a first offense to 60 days. This is an improvement from the previously permitted 365 days, but still fails to conform to international standards both in duration and in purpose since international standards discourage the use of solitary confinement as punishment.

One recent reform at the state level is the implementation of “step-down” programs that allow inmates in solitary confinement to gain more out of cell time and access to programming as they move down security classifications through good behavior. Additional activities include sports equipment during recreation, in-cell televisions, or more phone calls and visits. Again, while this is an improvement, some of these earned privileges, like adequate visits, are considered the minimum under international human rights law. Additionally, many inmates in solitary confinement struggle with mental illnesses that may make effective participation in these programs difficult unless prison officials are trained to identify symptoms of mental illness.

Lawsuits alleging violations of the Eighth Amendment’s prohibition on cruel and unusual punishment have also led to reforms at the state level. For example, because of a settlement in Delaware, inmates who need mental health services now have access to them. Delaware inmates now must have their mental health considered prior to placement in solitary confinement, they must spend at least 17.5 hours per week out of their cells, and prisons must create individualized mental health treatment plans.

Colorado has become a leader among the states in voluntarily setting humane solitary confinement standards. In 2013, the state prohibited the use of prolonged solitary confinement for seriously mentally ill prisoners. It also recently passed a law banning the use of solitary confinement for more than 15 consecutive days for all inmates, becoming the only state to meet international standards on duration of solitary confinement. Colorado’s changes were inspired by the Head of Corrections’ participation in drafting the Mandela Rules. He became convinced that prolonged solitary confinement is unethical since it manufactures and aggravates mental illnesses. After implementing these reforms and others, Colorado’s solitary confinement population decreased from 1,500 in 2011 to 18 in 2017.

These reforms are a step in the right direction toward ensuring more humane conditions of solitary confinement in the United States. However, since the reforms are largely proceeding state-by-state, the country has a patchwork of laws that provide prisoners with varying levels of protection. For example, many states still allow solitary confinement for people with serious mental illnesses and minors, or permit indefinite solitary confinement. To ensure that every prisoner is treated with dignity and respect, the United States must continue to reform its solitary confinement practices. Turning to international human rights standards for guidance, as Colorado has done, is a good place to start.

For more information about efforts to reform solitary confinement practices in the United States see: the ACLU solitary confinement projectSolitary Watch, the Vera Institute of Justice, and Amnesty International.