ACLU-NJ Sues State for Withholding Salt Barn Plans

December 6, 2010
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NEWARK — The American Civil Liberties Union of New Jersey's (ACLU-NJ) Open Governance Project sued the New Jersey Department of Community Affairs (DCA) Office of Local Code Enforcement today for denying access to plans concerning a road salt storage barn in Bethlehem Township, Hunterdon County. The barn, which stores road salt, was built in 2007 using taxpayer dollars.

Although Carole Chiaffarano, the resident who requested the documents, has already received the building and site plans from Bethlehem Township, she had reason to believe that the construction of the salt barns differed from the plans the township submitted to the DCA and other state agencies for their approval.

Chiaffarano, whose property is 38 feet away from the barn, hoped to compare the municipal documents with the DCA's, but her request was denied. The DCA cited an executive order that allows state agencies to reject requests for public records that could raise the likelihood of terrorism or heighten the impact of an attack.

"I was shocked that my requests were denied because of security reasons," stated Chiaffarano, the plaintiff in the case. "The state's actions leave the Bethlehem community in the dark about whether the barn was built safely and correctly. Since the township's plans are out in the open already, I don't see how comparing two sets of documents poses a risk to anyone."

Chiaffarano, a resident of Bethlehem Township, first requested plans from the DCA in September 2010 hoping to uncover whether the township submitted different versions of the building and site plans for the approval of the DCA and other agencies. In addition to written requests, she called the DCA on Nov. 1 to schedule an office visit to review the plans. She was told that such a review is "prohibited by state law" and that "only the engineer or the owner of the plans" could access records. The agency also denied her requests for the information under the common-law rights that also grant access to public records for New Jersey citizens. Chiaffarano fears that the plans used in the actual construction of the salt barns were not approved by one or more of the appropriate governmental agencies.

"It borders on absurdity that the DCA believes access to records about a barn with plastic windows and one door could put the public at risk," said ACLU-NJ Open Governance Attorney Bobby Conner. "This is an example of a state agency using a ludicrous justification to withhold information from the public."

The ACLU-NJ's Open Governance Project, founded in 2009 through a grant from the Pratt Bequest Fund of Rutgers School of Law-Newark, is dedicated to ensuring that government agencies uphold and enforce the Open Public Records Act and Open Public Meetings Act throughout New Jersey.

The case, captioned Carole Chiaffarano v. DCA, is pending in the Superior Court of New Jersey in Hunterdon County.

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ACLU-NJ Joins Bi-partisan Legislators to Reject Invasive TSA Measures

November 15, 2010
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TRENTON — In a press conference scheduled for noon today in room 103 at the Statehouse, the American Civil Liberties Union of New Jersey will stand alongside legislative leaders from both sides of the aisle to support a resolution asking the United States Congress to review new TSA screening procedures at airports that violate privacy, and provide little in the way of security enhancements.

"This technology involves a direct invasion of privacy," said ACLU-NJ executive director Deborah Jacobs, "It produces strikingly graphic images of passengers' bodies, essentially taking a naked picture of air passengers as they pass through security checkpoints."

The ACLU maintains that the likely effectiveness of such a technology in preventing attacks does not justify the level of intrusion involved.

News conference attendees include:

  • Senator Michael J. Doherty (23rd District)
  • Senator Diane Allen (7th District)
  • Assemblywoman Alison McHose (24th District)
  • Assemblywoman Valerie Huttle (37th District)
  • Assemblyman John DiMaio (23rd District)
  • Assemblyman Erik Peterson (23rd District)

At the press conference, the Legislators will announce the introduction of a resolution urging Congress to immediately review the new TSA screening procedures and the reports of passenger abuse occurring at our nation's airports. Senator James Beach (6th District) will join Senator Doherty in sponsoring the Senate version of the resolution.

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ACLU-NJ Probes FBI Mapping Based on Ethnicity

July 27, 2010
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NEWARK - The American Civil Liberties Union of New Jersey today filed a Freedom of Information Act request with New Jersey's FBI field offices asking for records regarding the agency's collection of racial and ethnic data in local communities. Joining 31 other ACLU affiliates nationally, the ACLU-NJ seeks more details concerning the FBI's authority as described in the 2008 FBI operations guide to map businesses, behaviors, lifestyles and traditions considered "ethnic-oriented."

"The potential abuse that could stem from the FBI's mapping of America by race demonstrates exactly why transparency is so crucial to a democracy," said ACLU-NJ Executive Director Deborah Jacobs. "The public has a right to know what kinds of information the government gathers about ordinary Americans, and the public has a right to know how that information will be used."

The FBI's 2008 Domestic Intelligence and Operations Guide (DIOG) refers to agents' power to collect, use, and map racial and ethnic data to assist its "domain awareness" and "intelligence analysis" activities. The DIOG, first released with heavy redaction in September 2009, was released with fewer redactions this January in response to a lawsuit filed by Muslim Advocates. Still, the public has little access to information about the FBI's implementation of this authority.

"The FBI's mapping of local communities based on race and ethnicity, as well the ability to target investigations based on supposed racial and ethnic behaviors, raises serious civil liberties concerns," said Michael German, ACLU policy counsel and former FBI agent. "Creating a profile of a neighborhood based on the ethnic makeup of the people who live there for law enforcement or domestic intelligence is unfair, un-American and unable to stop crime."

In addition to New Jersey, FOIA requests for the same kinds of information were also filed in Alabama, Arkansas, California, Colorado, Connecticut, Washington, DC, Delaware, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont and Virginia.

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ACLU-NJ Celebrates 50 Years on the Front Lines of Freedom

June 16, 2010
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Newark, N.J. - For five decades, the American Civil Liberties Union of New Jersey has been a gale force in the most critical social debates of our time and a vigilant guardian of civil rights for all.

In June, the ACLU-NJ will mark the 50th anniversary of its founding and celebrate its standing as one of the largest and most active affiliates in the nation. Created to counter the growing pressures on civil liberties in the state, the affiliate's first official meeting took place on the night of June 16, 1960. Since its start, the affiliate, which has continued to keep its headquarters in Newark, has seen its membership multiply nearly 10-fold, from 1,600 people to more than 15,000.

"We believe that the liberties in the Bill of Rights belong to every American, to all the people in New Jersey regardless of their political beliefs, race, religion or national origin," ACLU-NJ founder and longtime President Emil Oxfeld said in the original press release announcing the formation of the state's affiliate. "We believe these freedoms must be exercised if democracy in our state is to grow and thrive."

Oxfeld went on to list issues that desperately needed attention at the time - due process, racial discrimination, the separation of church and state, and freedom from censorship - all principles the ACLU still defends daily.

"While some of the issues raised in our cases over the years seem archaic by today's standards, many haven't changed at all," said ACLU-NJ Executive Director Deborah Jacobs, who has led the affiliate since 1999, including during the biggest membership spike in its history. "The law has advanced remarkably in areas like women's rights, lesbian and gay rights, and safeguarding personal privacy, but with issues like free speech, police practices and religious freedom, no fight ever stays won."

"The ACLU of New Jersey has been a leader in the crucial civil liberties battles of our time," said Anthony D. Romero, executive director of the national ACLU. "While each new era brings a wave of assaults on freedom, the ACLU of New Jersey responds swiftly and decisively, protecting the rights of all Garden State residents. It has proven its value on the American political landscape."

Since opening its doors and springing into action - its first official undertaking was commending the Clifton Library's stance against banning books like Lady Chatterley's Lover - the ACLU-NJ has doggedly worked for justice and equality in New Jersey.

In its first decade the ACLU-NJ took strong action following the 1967 Newark Rebellion. Staffers took to the streets in the aftermath, painstakingly cataloguing police abuses to the ACLU-NJ would refer to in its demands for reform. The New Jersey affiliate also emerged even more progressive than the national ACLU, becoming one of the first state affiliates to take a stand against the Vietnam War.

Since those early years, the ACLU-NJ has grown into one of the country's largest and most active state affiliates, with a record of milestones that has earned it a role on the national stage. Among its accomplishments, the ACLU-NJ:

  • Defended the rights of women in schools, from a tennis star (represented by Ruth Bader Ginsburg) who won the right to play on the high school boys' tennis team, to the Princeton student who turned its Ivy League all-male eating clubs co-ed.
  • Blocked a bill requiring a "one-minute period of silence" for prayer in public schools in 1983.
  • Defended 12 motorists who had been racially profiled on the New Jersey Turnpike in the late 1990s.
  • Propelled New Jersey to become the first state in the nation to grant equal standing to gay and lesbian couples jointly adopting in 1997.
  • Successfully challenged the state's ban on late-term abortion in 1998 and a law requiring parents to sign off on a minor's abortion in 2000.
  • Challenged secret detentions and organized locally, fending off attempts to chip away at individual rights following the Sept. 11, 2001 terrorist attacks.
  • Defeated local laws written to exclude immigrants from housing, won humane working conditions for immigrants, and helped enforce the rights of young immigrants to attend public school.
  • Established stronger First Amendment protections in schools and malls, as well as developments run by homeowners associations.

The ACLU-NJ is celebrating the clients, attorneys, leaders and volunteers - many involved in the cases highlighted above - who have built its legacy, from its founders to its future. The stories of these 50 Faces of Liberty can be found at the ACLU-NJ website, http://www.aclu-nj.org

"Society has changed dramatically since our founding, but we've never lost the fire that fuels the ACLU's advocacy," Jacobs added. "We can't always predict what challenges lie ahead for liberty in a changing world, but whatever they are, the ACLU stands ready to defend the fundamental rights of ordinary Americans."

The year-long commemoration will culminate November 4 at the NJ Freedom Fest: A night of laughter and liberties, hosted by comedian Jimmy Tingle and featuring faces from the ACLU past and present, to be held at the Heldrich Hotel in New Brunswick.

NJ's Federal Law Enforcement Used GPS To Track People's Cell Phones

April 23, 2009
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Justice Department Documents Reveal Former U.S. Attorney Chris Christie Approved Tracking Whereabouts With No Warrant

NEW YORK - The American Civil Liberties Union announced today its discovery that former U.S. Attorney for New Jersey Chris Christie gave approval to track people's precise whereabouts through their cell phones without a warrant.

"This is just the newest example of our privacy rights careening over the edge with federal officials drunk at the wheel," said ACLU-NJ Executive Director Deborah Jacobs. "Big Brother is tucked away in our cell phones, and the man behind the curtain is Chris Christie."

Justice Department documents made public today through a lawsuit filed by the American Civil Liberties Union and the Electronic Frontier Foundation show that the government is actively taking advantage of GPS or other similarly precise technology to monitor people's coming and goings, specifically in New Jersey as well as Florida, and that it does not always obtain a search warrant beforehand.

"Tracking the location of people's cell phones reveals intimate details of their daily routines and is highly invasive of their privacy," said Catherine Crump, a staff attorney with the ACLU. "The government is violating the Constitution when it fails to get a search warrant before tracking people this way."

Although low-level courts have authorized the tracking, New Jersey and Florida are the only two known states in which federal prosecutors are obtaining court orders for GPS or similarly precise tracking information merely by showing that the tracking information is "relevant and material" to a criminal investigation - a substantially lower burden than the "probable cause" standard required by the Constitution.

The Justice Department itself has stated that federal prosecutors should seek probable cause warrants to obtain precise location data in private areas. Considering the fact that people do not even have an opportunity in court to challenge the tracking, since they are not informed of the proceedings, it's essential that the government have a sufficient legal basis before initiating this surveillance.

The ACLU wishes to participate in such proceedings as amicus curiae in the interest of defending the rights of those potentially subject to tracking.

The ACLU and EFF sued the Justice Department in July 2008 for records related to the government's use of cell phones as tracking devices. Some documents have been turned over but the lawsuit continues over additional information about the government's practices.

Attorneys on the case are Crump of the ACLU, David Sobel of EFF and Arthur Spitzer, Legal Director of the ACLU of the National Capital Area.

List of Potential NJ Threats Finally Released

July 7, 2008
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NEWARK - After four years of wrangling with the Office of the New Jersey Attorney General, the ACLU-NJ has finally obtained a list of the organizations identified by New Jersey law enforcement as "potential threat elements (PTEs)." These designations, made by municipalities in order to receive funding from Department of Homeland Security grant programs in 2003 and 2004, identified people or groups that law enforcement thought might commit acts of terrorism in the future.

"This has been a long and important battle for open government," stated Gary D. Nissenbaum, Esq. of the Nissenbaum Law Group located in Union, who served as cooperating counsel for the ACLU-NJ. "Our goal was to ensure that no one was targeted for First Amendment activities or religious affiliations, as we have seen in past times of political unrest."

As a result of this lawsuit, the Office of the Attorney General finally provided a List of 59 Entities Containing PTEs it had designated. This disclosure confirmed that no groups were improperly identified as PTEs; none were houses of worship, and no private individuals were identified.

Fourteen of the organizations identified by Hudson County were on either the U.S. Department of State's list of foreign terrorist organizations or the Anti-Defamation League's list of American extremist groups. The fifteenth PTE listed in Hudson County was described as "a well-recognized criminal organization with its roots in El Salvador and Guatemala."

When the ACLU-NJ learned in 2004 that municipalities had to list "potential threat elements" to receive federal grant money, it requested information about the list from municipalities and the state. The concern over identification of private individuals, religious organizations, peace groups or anyone else protected by the First Amendment was heightened by the fact that inclusion on this list would trigger a preliminary investigation by the FBI.

In other states, PTEs and criteria for their designation were placed on public government websites. However, New Jersey's towns refused to do so.

In December 2004, the ACLU-NJ sued former Attorney General Peter Harvey, who then said in September 2005 that his office had not directed towns to deny the requests. Another round of ACLU-NJ requests for information turned up a 2004 memorandum from the Attorney General directing towns not to release potential threat information to the ACLU-NJ.

On August 31, 2006, after the ACLU-NJ sued Harvey again, the Superior Court of New Jersey awarded the ACLU-NJ over $10,000 in legal fees, having found that Harvey inappropriately withheld documents about PTEs. Soon after, the Attorney General's office admitted that three counties had named PTES: Hudson, Cape May and one other county that to this day remains unidentified. As a result of the June 10 Attorney General's Office disclosure, the actual names of the PTEs have now been released as part of a larger list supplied by the Office of the Attorney General.

"Open government is central to democracy," said ACLU-NJ Executive Director Deborah Jacobs. "The government can't expect to set policy in the dark and not have people holding up flashlights and asking about secrecy."

Thousands Gather in D.C. to Demand Due Process Rights

June 26, 2007
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NEWARK, N.J. -- Dozens of members and supporters of the American Civil Liberties Union of New Jersey today traveled to Washington, D.C. for a Day of Action to Restore Law and Justice. They are joining with thousands of Americans from across the country to attend a rally and then call on Congress to restore habeas corpus, fix the Military Commissions Act, end torture and rendition, and restore our constitutional rights.

"New Jerseyans can no longer stand idly by while our constitutional rights and freedoms are stripped away," said ACLU-NJ Executive Director Deborah Jacobs. "We are taking our fight straight to Capitol Hill to hold New Jersey's representatives in Congress accountable and demand that they restore due process, defend the Constitution and protect what makes us Americans."

The ACLU has chartered buses to take participants to Washington, D.C. In New Jersey, buses left from Elizabeth and Princeton, transporting people from all over the state.

Today's action represents an overwhelming grassroots repudiation of the Military Commissions Act -- an act that denies detainees the right of habeas corpus, allows testimony coerced via torture to be used as evidence against them, ignores the Geneva Conventions and gives the president the power to declare anyone an "unlawful enemy combatant" and to detain them indefinitely.

What You Can Do

On the day after the June 26 rally in Washington, D.C., the ACLU and other social justice organizations will be organizing a national call-in day to Congress.

To reach your representatives on the June 27 national call-in, call the Capitol switchboard at (202) 224-3121 (24 hours) and ask the operator to connect you.

Call both of your senators and your representative, and tell the person who answers the phone that you urge Senator or Representative to:

  • Restore habeas corpus and due process for all human beings.
  • Support the Restoring the Constitution Act of (S. 576 in the Senate and HR 1415 in the House)
  • End torture and secret prisons.
  • Stop so-called "extraordinary rendition" flights where people are secretly kidnapped and sent to countries that torture. (Support HR 1352 in the House)
  • Close the Guantanamo Bay detention center and provide all detainees with access to lawyers and speedy trials. (Support S. 1249 and 1469 in the Senate, and HR 2212 in the House)
  • Investigate wrongdoing and ensure those who broke the law are held accountable. Activists from all 50 states will deliver tens of thousands of signatures to Congress, urging for rights to be restored.

June 26 marks the first time in the ACLU's 87-year history that the organization has convened a national event of this type.

For more information on the Day of Action, visit http://www.juneaction.org

MVC Comments Highlight Cost, Privacy Concerns with Real ID

May 24, 2007
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NEWARK, N.J. — The American Civil Liberties Union of New Jersey today praised the New Jersey Motor Vehicle Commission for its substantive comments to the Department of Homeland Security about privacy and other concerns on a proposed national identity card, known as Real ID.

In early March, the Department of Homeland Security released draft regulations for the Real ID Act, which is federal legislation that aims to create a national ID card. The New Jersey Motor Vehicle Commission provided 63 pages of comments, raising concerns about security, cost, privacy and other implications of Real ID to New Jersey residents.

"With these comments, the Motor Vehicle Commission has demonstrated that it is a strong advocate for the rights and interests of New Jerseyans," said ACLU-NJ Executive Director Deborah Jacobs. "The MVC's analysis shows that Real ID would be a real nightmare of more red tape, longer lines, more identity theft and higher fees for New Jersey."

The New Jersey MVC's comments reflect a growing rebellion among the states against Real ID. Twelve states have passed legislation or resolutions opposing Real ID and several states have passed statutory bans on participating in Real ID as it is currently constituted.

In light of the MVC's substantive concerns, the ACLU-NJ calls on Governor Corzine to join this national movement and take action to reject Real ID. "Our own MVC has identified countless problems with Real ID, demonstrating that if implemented, Real ID will waste New Jerseyans' money, jeopardize our privacy and replace our driver's license system with a new scheme that will cost billions and fail to provide real security," said Jacobs. "It is time for us to say 'no' to Real ID."

The Real ID Act creates a national ID card system that federalizes and standardizes state driver's licenses. After being rejected as a stand-alone bill, it was forced through Congress in 2005 as part of a must-pass Iraq War appropriations measure. It requires every person in the country to have a Real ID-compliant identification document in order to fly on commercial airlines or enter government buildings. The Department of Homeland Security has said that some day Real ID will be required for other purposes, like getting a passport. Interested parties had until May 8 to submit comments on the regulations.

New Jersey's MVC clearly identifies the problems that the proposed Real ID regulations present for the state, which through its 6-point ID system already has one of the most secure licenses in the country. The MVC's comments state that "[w]hile substantial changes were made to update the State's previously archaic system, the present process, though extremely secure, will fall short of meeting the requirements … Therefore to become compliant, New Jersey would need to utilize significant resources that the State can ill-afford at this time."

DHS estimates that Real ID will cost $23 billion to implement nationally over the next 10 years. The New Jersey MVC states that the cost DHS suggested for the state to implement Real ID — $210 million over 10 years — is underestimated by at least 36 percent. The comments also note the failure of the federal government to provide grants and other funding sources for Real ID implementation.

The MVC said that the Real ID system would alter the agency's core mission from driver safety to a business that emphasizes identification. In its comments on Real ID, the MVC questioned "whether sufficient thought has been given to the impact this change could have on driver safety nationwide."

Finally, in addressing privacy issues, the MVC notes it has "some concern about the increased risk of identity theft and the potential erosion of personal privacy. Whenever additional personal information is collected and systems are created to retrieve that personal information or databases are established to house such information, the threat of improper access and use of that information is heightened."

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ACLU-NJ, Seton Hall Challenge TSA Suspension of Arab American

September 14, 2006
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NEWARK, N.J. -- The American Civil Liberties Union of New Jersey and the Seton Hall Law School Center for Social Justice today filed an employment discrimination lawsuit on behalf of Dr. Wagih H. Makky, a world-renowned aviation security expert and engineer suspended from the Transportation Security Administration on account of his Arab and Muslim heritage.

"Suspending one of the government's most talented security engineers just because he's an Arab and a Muslim compromises our country's security as well as its values," said Seton Hall Law School Center for Social Justice Professor Baher Azmy, who is representing Dr. Makky in cooperation with the ACLU-NJ. "After September 11, we cannot allow petty prejudice to prevent one of our most talented citizens from doing his job to keep our airlines safe."

Dr. Makky was suspended from his job on the day the United States invaded Iraq, for reasons that have always been kept secret from him.

Following the bombing of the Pan Am airliner over Lockerbie, Scotland, Dr. Makky was specifically tapped by the U.S. government to help create the program within the Federal Aviation Administration responsible for developing machines to detect and prevent explosives from being brought aboard various modes of transportation, particularly commercial airplanes and passenger trains. He is of undisputed expertise and renown in this area.

Even before he was finally suspended, Dr. Makky faced persistent prejudice at work. One supervisor told him that it had been a mistake to hire an Arab; another opined to him that "Muslims have no brains." In 2002, when a new supervisor took over Dr. Makky's division, he wanted to know just one thing about Dr. Makky: his national origin.

The reasons for his suspension have never been revealed to Dr. Makky.

Instead, a classified FBI file that was kept in the private safe of his supervisor and that supposedly formed the basis for his determination has been withheld from Dr. Makky during administrative proceedings initiated by his lawyers to uncover it.

"Dr. Makky has devoted his career as an aviation safety engineer to protecting the American people from terrorist attacks," Professor Azmy said. "America should operate with transparency and fairness, not reactionary prejudice, when dealing with life-long civil servants."

Born in Egypt, Dr. Makky came to this country nearly 30 years ago. He received his Ph.D., became an American citizen and held several prestigious research positions before beginning his career in government.

Today's lawsuit, filed in federal court in Newark, raises employment discrimination and civil service protection claims for back wages, as well as Freedom of Information Act claims in order to allow Dr. Makky to see the classified file supposedly containing the reasons for his suspension that have been withheld from him.

In addition to Professor Azmy, attorneys on the case include Scott Michelman, also of the Seton Hall Law School Center for Social Justice, and Edward Barocas, Legal Director of the ACLU-NJ, and Arthur B. Spitzer, Legal Director of the ACLU National Capital Area.

The case is captioned Wagih Makky v. Michael Chertoff, et al. (86k PDF)

ACLU-NJ Delivers Petition to Demand Officials Investigate Phone Snooping

June 15, 2006
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NEWARK, N.J. -- The American Civil Liberties Union of New Jersey today delivered a petition containing the names of 1,300 New Jerseyans from across the state who support the organization's call to investigate whether local telecommunications companies allowed the National Security Agency to spy on New Jersey customers.

The ACLU-NJ sent the petition to New Jersey Board of Public Utilities President Jeanne Fox, urging the regulatory agency to investigate whether Verizon and AT&T cooperated with the NSA's warrantless surveillance and data mining of Americans.

"Today, the people of New Jersey have stepped forward to demand that their government investigate this massive, illegal and fundamentally un-American invasion of our privacy," said ACLU-NJ Executive Director Deborah Jacobs. "We join with thousands of concerned citizens in calling on our state officials to demand investigations into this troubling breach of public trust. The people of New Jersey—and all Americans—want the truth."

The ACLU-NJ also learned today that the federal government is seeking to block state Attorney General Zulima Farber from seeking information about the phone companies' cooperation with the NSA. "We applaud Attorney General Farber for taking such an active role," added Jacobs. "However, the federal government is trying to suppress the public's right to know. This a slap in the face to the people of New Jersey who have stood up to demand that state officials investigate whether the phone companies have violated any of the state's consumer protection laws."

Last month, the ACLU-NJ and affiliates in 19 other states filed complaints with public utility commissions or sent letters to state Attorneys General and other officials demanding investigations into the unlawful sharing of billions of consumers' call records with the NSA.

In addition to the 1,300 signatures delivered to the New Jersey Board of Public Utilities today, the ACLU has collected tens of thousands of signatures nationwide that have been delivered to state public utilities commissions.

"The rule of law has been broken, and it must be restored," said Jacobs. "The people of New Jersey are proud to stand against this abuse of power. We urge our state officials to bring the truth to light."

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