Google v. Oracle: The Copyright Battle over Software Interfaces

By: Claire Lu

Edited By: Joni Rosenberg and Maddy Bennett

In a world driven by technology, computer software permeates nearly every facet of our digital lives. The rapid development and innovation of the technological industry can be attributed in part to open-source coding and collaboration between developers across various fields [1]. With the growing significance and advancement of technology, new and unprecedented issues have emerged. Namely, the outcome of Google LLC v. Oracle America, Inc. 18-956 (2018), which is being heard by the United States Supreme Court, may threaten the standard practices of the computer industry.

This case is part of a decade-long array of hearings that have been held on the topic of application programming interfaces (APIs) and copyright infringement. APIs are intermediates that translate user requests to information readable by computers. Historically, they have been used by developers to build platforms that can interoperate [2]. The importance of APIs cannot be understated; they encourage innovation through computing, allow programmers to focus their energies on creating new ideas, and enable the free flow of code across software programs [3].

Java, a computer language acquired by Oracle in 2009, includes a library of APIs that help programmers create new code without needing to recreate the basic framework that communicates directly with the computer. In 2005, Google copied the “structure, sequence, and organization” of Java’s APIs to develop earlier versions of the Android operating systems. Five years later, Oracle claimed that Google infringed on its ownership of Java. While the lower courts sided with Google in this debate, the Federal Court of Appeals reversed this decision in 2018 [4].  Now, as the Supreme Court is poised to make its final verdict, it is worth examining some of the key arguments and effects of a decision favoring Oracle.

While it is indisputable that Google used Java’s APIs, the contested issue is whether primarily functional software such as APIs can be protected by copyright. The Copyright Act protects "original works of authorship fixed in any tangible medium of expression [5].”.However, copyright protection is limited by the fair use doctrine, which prescribes that the limited use of unlicensed, copyrighted material is permissible in certain cases to balance the interests of the copyright holder and broader public [6]. Google argues that their use of APIs should be considered under the doctrine of fair use and that their incorporation of APIs under a different platform constitutes innovation and “transformative use [7].”

The protection of computer software under the Copyright Act is difficult to assess definitively, as it is a combination of creative and functional elements. Traditionally, functional code is exempt from the Copyright Act under the fair use doctrine because there are limited ways to recreate the code’s function and it involves no creative elements. Conversely, many other types of code are idiosyncratic in nature and require creativity on the part of the programmer [8]. APIs hover the line between functional and creative code because while the underlying code is functional, it still involves some creativity in its design [9].

Currently, it is common practice for programmers to use APIs without having to worry about copyright protection. Since APIs mostly involve functional software elements, a ruling in favor of Oracle could create a dangerous precedent by narrowing the scope for fair use arguments and limiting the innovation that often occurs within the space granted by fair use [10].

This case is highly controversial, as valid arguments lie on the opposing sides. Most of the technology industry has offered their support to Google, including competitor Microsoft, whereas several others have sided with Oracle, including the American Conservative Union Foundation [11]. Nonetheless, the potential danger of offering inadequate protection to software developers that comes with a ruling in Google’s favor is outweighed by the danger of upending the software industry. The repercussions of a ruling in favor of Oracle would not only be felt by Google –– who would owe up to $8 billion in damages –– but also by the industry as a whole. Software developers would have to change their practices and “recreate the wheel” when developing new code. This could drastically stall the advancement of new technology and drive up costs [12]. As this decade-old conflict draws to a close, all eyes in the tech industry and beyond will be on the Supreme Court as they make a ruling on Google v. Oracle.

notes:

1. Towers-Clark, Charles. “Why Is Open-Source So Important? Part One: Principles And Parity.” Forbes. Forbes Magazine, September 25, 2019. https://www.forbes.com/sites/charlestowersclark/2019/09/24/why-is-open-source-so-important-part-one-principles-and-parity/?sh=2067f0f061f7. 

2. Microsoft Corporation. “Brief of Microsoft Corporation as Amicus Curiae in Support of Petitioner.” Supreme Court of the United States. Feb. 25, 2019. https://www.supremecourt.gov/DocketPDF/18/18-956/89566/20190225161900311_Brief%20of%20Microsoft%20Corporation%20as%20Amicus%20Curiae.pdf.

3. Freeman, Jonathan. “Application Programming Interfaces Explained.” InfoWorld. InfoWorld, August 8, 2019. https://www.infoworld.com/article/3269878/what-is-an-api-application-programming-interfaces-explained.html. 

4. Cho, Justin. “Google v. Oracle: SCOTUS to Determine How Copyright Laws Apply to APIs.” Harvard Journal of Law & Technology, December 1, 2019. https://jolt.law.harvard.edu/digest/google-v-oracle-scotus-to-determine-how-copyright-laws-apply-to-apis. 

5. “Copyright in General.” Copyright. Accessed October 30, 2020. https://www.copyright.gov/help/faq/faq-general.html. 

6. Ibid.

7. Jeong, Sarah. “The Supreme Court Is Taking on Google and Oracle One Last Time.” The Verge. The Verge, October 6, 2020. https://www.theverge.com/2020/10/6/21504715/google-v-oracle-supreme-court-hearings-android-java. 

8. “Copyright Registration of Computer Programs.” Copyright. Accessed Oct. 30, 2020. https://www.copyright.gov/circs/circ61.pdf.

9. Baldinger, Jacob. “The Supreme Court Copyright Battle Between Google and Oracle Will Confront ‘Fair Use’ of Software.” Subscript Law. Subscript Law, February 18, 2020. https://www.subscriptlaw.com/blog/supreme-court-battle-between-google-and-oracle-confront-fair-use. 

10. [Microsoft Corporation. “Brief of Microsoft Corporation as Amicus Curiae in Support of Petitioner.”

11. “Oracle v. Google.” Copyright Alliance, February 20, 2020. https://copyrightalliance.org/copyright-law/copyright-cases/oracle-america-v-google/. 

12. Arin, Michael. “Reactions to Mixed Metaphors.” Business Law Today, October 27, 2020. https://businesslawtoday.org/2020/10/reactions-mixed-metaphors-decoding-google-v-oracles-impact/.

Bibliography:

Arin, Michael. “Reactions to Mixed Metaphors.” Business Law Today, October 27, 2020. https://businesslawtoday.org/2020/10/reactions-mixed-metaphors-decoding-google-v-oracles-impact/.

Baldinger, Jacob. “The Supreme Court Copyright Battle Between Google and Oracle Will Confront ‘Fair Use’ of Software.” Subscript Law. Subscript Law, February 18, 2020. https://www.subscriptlaw.com/blog/supreme-court-battle-between-google-and-oracle-confront-fair-use.

Cho, Justin. “Google v. Oracle: SCOTUS to Determine How Copyright Laws Apply to APIs.” Harvard Journal of Law & Technology, December 1, 2019. https://jolt.law.harvard.edu/digest/google-v-oracle-scotus-to-determine-how-copyright-laws-apply-to-apis. 

“Copyright in General.” Copyright. Accessed October 30, 2020. https://www.copyright.gov/help/faq/faq-general.html.

“Copyright Registration of Computer Programs.” Copyright. Accessed Oct. 30, 2020.

https://www.copyright.gov/circs/circ61.pdf. 

Freeman, Jonathan. “Application Programming Interfaces Explained.” InfoWorld. InfoWorld, August 8, 2019. https://www.infoworld.com/article/3269878/what-is-an-api-application-programming-interfaces-explained.html. 

Jeong, Sarah. “The Supreme Court Is Taking on Google and Oracle One Last Time.” The Verge. The Verge, October 6, 2020. https://www.theverge.com/2020/10/6/21504715/google-v-oracle-supreme-court-hearings-android-java. 

Microsoft Corporation. “Brief of Microsoft Corporation as Amicus Curiae in Support of Petitioner.” Supreme Court of the United States. Feb. 25, 2019. https://www.supremecourt.gov/DocketPDF/18/18-956/89566/20190225161900311_Brief%20of%20Microsoft%20Corporation%20as%20Amicus%20Curiae.pdf.

“Oracle v. Google.” Copyright Alliance, February 20, 2020. https://copyrightalliance.org/copyright-law/copyright-cases/oracle-america-v-google/. 

Towers-Clark, Charles. “Why Is Open-Source So Important? Part One: Principles And Parity.” Forbes. Forbes Magazine, September 25, 2019. https://www.forbes.com/sites/charlestowersclark/2019/09/24/why-is-open-source-so-important-part-one-principles-and-parity/?sh=2067f0f061f7. 

The Constitutional Cost of Federal Fossil Fuel Subsidies

By: Aidan Ocampo

Edited by: Tess Ballis

U.S. Federal officials have been aware of the devastating implications of burning fossil fuels for decades [1]. Recognizing the costs of releasing greenhouse gases into the atmosphere, the federal government “permitted, encouraged, and enabled exploitation” of fossil fuels at the direct expense of American livelihood [2]. Inspired by John Locke’s political philosophy [3], America enshrines its citizens with the inherent rights of life, liberty, and the pursuit of happiness – all of which are being traded by our federal government’s “deliberate indifference” to the impacts of CO2 emissions [4]. Therefore, in many instances, the federal government’s deliberate promotion of fossil fuel exploitation— through subsidization and provision of federal permits— illegally disregards its constituents' rights to life, liberty, and the pursuit of happiness.

These violations of inalienable rights have already been litigated in the US Supreme Court. In Juliana v. United States, 18-36082 (2020), 21 young plaintiffs sued numerous federal agencies that continued to permit fossil fuel exploitation. Among the plaintiffs include individuals whose narratives include many instances in which climate change has already impacted the lives of America’s youth across the nation. Plaintiff Jaime B, a former resident of the Navajo Nation, has faced displacement from her former home in Cameron, Arizona “because of water scarcity” [5]. After leaving to move to the Kaibab National Forest, “Jaime and her mother were evacuated for two days” because of a wildfire north of their property [6]. This is just one example of how the federal government’s decision to continue its reliance on fossil fuels has led to the detriment of American’s livelihoods—especially our youth.

Although the United States is not the only country to subsidize the fossil fuel industry, it is among the largest subsidizers with a reported $649 billion in 2017 alone [7]. To support the federal government’s substantial investment in fossil fuel exploitation, “US taxpayers are spending tens of billions of dollars a year subsidizing new fossil fuel exploration and exploitation” [8].  In fact, Forbes magazine found that the “United States spends ten times more on fossil fuel subsidies than education” [9]. Historically, the use of fossil fuel subsidies was intended to support the development of domestic energy sources by lowering its cost. However, according to the Environmental and Energy Study Institute, “U.S. taxpayer dollars continue to fund many fossil fuel subsidies that are outdated but remain embedded within the tax code” [10]. Therefore, the federal government is utilizing the taxpayer’s money to fund an industry that will inhibit our ability to fulfill our rights to life, liberty, and the pursuit of happiness.

To ensure the prioritization of our rights in political agendas, the Commonwealth of Pennsylvania offers a potential solution. In 1971, voters in the state ratified the Environmental Rights Amendment to the Pennsylvania Constitution explicitly affirming, “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment [11].” After its inclusion in the state constitution, its state legislature “enacted sweeping environmental laws” in addition to “creating a Department of Environmental Resources” [12]. Similarly, in 1987, the state of Rhode Island adopted an environmental bill of rights provision into its constitutions Declaration of Rights and Privileges. The detailed provision indicates the state as “a trustee and steward of the environment” and depends on the state “to adopt all means necessary and proper by law to protect the natural environment” [13][14]. The ratification of such amendments in more states, or even at the federal level, would seek only to reaffirm these fundamental environmental rights and improve on the safeguards that the environment demands.

According to the National Contingency Plan, the Secretary of the Interior is the trustee of all federal lands including “National Parks, National Wildlife Refuges, and BLM and BOR lands” [15]. In this role, the public entrusts the Department of the Interior to ensure the proper control and management of its lands. However, this role should not provide the federal government the right to auction off federal land to oil drilling companies to exploit the public’s pristine land in exchange for corporate and government profits.

Ultimately, the federal government has demonstrated that they do not make decisions in the interest of Americans’ well-being or the environment. By consistently permitting the auction of federal lands to drilling and mining companies and spending billions of dollars in taxpayer money subsidizing the fossil fuel industry, the federal government has been actively advancing the devastating impacts of climate change in direct violation of American’s fundamental rights.

Fortunately, Americans now have reason to hope. With the election of Joe Biden, the US has entrusted Biden to pursue his promise to end US fossil fuel subsidies. Though many have noted the steep uphill challenge to such a proposal, Biden’s promise is an indication of a larger trend: the reduction of the federal government’s support of fossil fuel exploitation. Additionally, with Biden’s selection of Representative Deb Haaland (D-NM) as Secretary of the Interior, the management of federal lands will be in the hands of a politician who openly proclaimed “I am wholeheartedly against fracking and drilling on public lands” [16]. As the trustee of federal lands and natural resources, a Secretary Haaland would fulfill her role in protecting lands in the interest of the public: preservation.

notes:

1. The White House. 1965. “Restoring the Quality of Our Environment”. Report of the Environmental Pollution Panel President’s Science Advisory Committee, November 1965. https://ozonedepletiontheory.info/Papers/Revelle1965AtmosphericCarbonDioxide.pdf

2. Juliana v. United States, No. 18-36082 (2015). http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf

3. Alex Tuckness. 2020. "Locke’s Political Philosophy", The Stanford Encyclopedia of Philosophy (Winter 2020 Edition), edited by Edward N. Zalta. https://plato.stanford.edu/archives/win2020/entries/locke-political/

4. Juliana, No. 18-36082

5. Juliana, No. 18-36082

6. Juliana, No. 18-36082 

7. Clayton Coleman and Emma Dietz. 2019. “Fact Sheet: Fossil Fuel Subsidies: A Closer Look at Tax Breaks and Societal Costs.” Environmental and Energy Study Institute, July 29, 2019. Edited by LaShier, Brian et al. https://www.eesi.org/papers/view/fact-sheet-fossil-fuel-subsidies-a-closer-look-at-tax-breaks-and-societal-costs#:~:text=Historically%2C%20subsidies%20granted%20to%20the,embedded%20within%20the%20tax%20code.

8. David Roberts. 2018. “Friendly policies keep US oil and coal afloat far more than we thought.” Vox, July 26, 2018. https://www.vox.com/energy-and-environment/2017/10/6/16428458/us-energy-coal-oil-subsidies.

9. James Ellsmoor. 2019. “United States Spend Ten Times More On Fossil Fuel Subsidies Than Education”. Forbes, June 15, 2019.

10. Clayton and Dietz. “Fact Sheet: Fossil Fuel Subsidies: A Closer Look at Tax Breaks and Societal Costs.” 

11. Constitution of the Commonwealth of Pennsylvania, art. 1, sec. 27. https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/00/00.HTM

12. Franklin L. Kury. “Pennsylvania’s Environmental Rights Amendment.” Conservation Advocate. https://conservationadvocate.org/pennsylvanias-environmental-rights-amendment/

13. Constitution of the State of Rhode Island and Providence Plantations, art. 1, sec 17. http://webserver.rilin.state.ri.us/RiConstitution/C01.html

14. Art English and John J. Carroll 2015. “State Constitutions and Environmental Bill of Rights.” The Book of the States. http://knowledgecenter.csg.org/kc/system/files/English%20Carroll%202015.pdf

15. National Contingency Plan Pt. 300, App. E. 6.4.5 https://www.govinfo.gov/content/pkg/CFR-2011-title40-vol28/pdf/CFR-2011-title40-vol28-part300.pdf

16. Jimmy Tobias. “’It’s my homeland’: the trailblazing Native lawmaker fighting fossil fuels”. The Guardian, May 15, 2019.

Bibliography:

Bureau of Land Management. “General Oil and Gas Leasing Instructions”. Bureau of Land Management. https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/leasing/general-leasing

Coleman, Clayton and Dietz, Emma. 2019. “Fact Sheet: Fossil Fuel Subsidies: A Closer Look at Tax Breaks and Societal Costs.” Environmental and Energy Study Institute, July 29, 2019. Edited by LaShier, Brian et al. https://www.eesi.org/papers/view/fact-sheet-fossil-fuel-subsidies-a-closer-look-at-tax-breaks-and-societal-costs#:~:text=Historically%2C%20subsidies%20granted%20to%20the,embedded%20within%20the%20tax%20code.

Constitution of the Commonwealth of Pennsylvania, art. 1, sec. 27. https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/00/00.HTM

Constitution of the State of Rhode Island and Providence Plantations, art. 1, sec 17. http://webserver.rilin.state.ri.us/RiConstitution/C01.html

Ellsmoor, James. 2019. “United States Spend Ten Times More On Fossil Fuel Subsidies Than Education”. Forbes, June 15, 2019.

English, Art and Carroll, John J. 2015. “State Constitutions and Environmental Billl of Rights.” The Book of the States. http://knowledgecenter.csg.org/kc/system/files/English%20Carroll%202015.pdf

Juliana v. United States, No. 18-36082 (2015). http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf

Kury, Franklin L. “Pennsylvania’s Environmental Rights Amendment.” Conservation Advocate. https://conservationadvocate.org/pennsylvanias-environmental-rights-amendment/

National Contingency Plan Pt. 300, App. E. 6.4.5 https://www.govinfo.gov/content/pkg/CFR-2011-title40-vol28/pdf/CFR-2011-title40-vol28-part300.pdf

The White House. 1965. “Restoring the Quality of Our Environment”. Report of the Environmental Pollution Panel President’s Science Advisory Committee, November 1965. https://ozonedepletiontheory.info/Papers/Revelle1965AtmosphericCarbonDioxide.pdf

Tobias, Jimmy. “’It’s my homeland’: the trailblazing Native lawmaker fighting fossil fuels”. The Guardian, May 15, 2019.

Tuckness, Alex. 2020. "Locke’s Political Philosophy", The Stanford Encyclopedia of Philosophy (Winter 2020 Edition), edited by Edward N. Zalta. https://plato.stanford.edu/archives/win2020/entries/locke-political/

The Case for Protecting Undocumented Immigrants

By: Iris Lin

Edited By: Arianna Staton and Maayan Abouzaglo

Although immigration to the U.S. has always been a hotly contested policy area, recent debate has centered around “undocumented” immigrants. There are currently around 12 million undocumented immigrants living in the U.S.[1] Many of these undocumented immigrants are known as Dreamers, who are undocumented immigrants under the age of 18 who have lived and gone to school in the U.S., and qualify for the Development, Relief, and Education for Alien Minors (DREAM) Act. The DREAM Act should have provided a pathway to legal status for young immigrants [2]. However, since the act’s first introduction in 2001, there have been many variations of the bill, but none have passed. The bill came closest to fruition in 2010 when it passed the House of Representatives but fell five votes short of the 60 necessary in the Senate [2]. Nevertheless, after Congress failed to pass the DREAM Act, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) program that would allow Dreamers to apply for work permits, obtain a Social Security Number, and pay taxes. DACA has allowed for 800,000 young undocumented people to work legally without fear of deportation. However, DACA doesn’t provide permanent legal status and must be renewed every two years. Accordingly, Congress should pass the DREAM Act and grant permanent legal status to young undocumented immigrants in order to ensure protection for those who not only make sacrifices to enter the U.S., but who also provide for the U.S. Protecting undocumented immigrants would not only benefit immigrants, but also the country as a whole as undocumented immigrants tend to work in low-wage jobs that are vital to the nation’s economic success.

On September 5, 2017, Acting Secretary of Homeland Security Elaine Duke rescinded the 2012 DACA memorandum and announced a “wind down” of DACA [2]. Since the memorandum was issued, the Trump administration has not accepted any new applications of DACA. Anyone for whom DACA would have expired as of March 6, 2018 would no longer have employment authorization. Thankfully, this attempted rescission was challenged by U.S. district courts in California.  

 In Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020), the Regents of the University of California sued the Department of Homeland Security (DHS) in the Northern District of California [3]. The plaintiffs argued that the rescission of DACA violated the Administrative Procedure Act (APA) because the recission did not comply with the APA’s notice-and-comment requirements. The APA governs the process by which federal agencies develop and issue regulations. The notice-and-comment requirements include publishing notices of proposed and final rulemaking and providing opportunities for the public to comment on notices of proposed rulemaking [4]. The plaintiffs also argued that the rescission deprived DACA recipients of constitutionally protected liberty and property interests without due process of law and was motivated by discriminatory intentions which violate the Equal Protection Clause of the Fourteenth Amendment. 

The government tried to dismiss the case for lack of jurisdiction, but the U.S. Court of Appeals for the Ninth Circuit found that receding DACA was not “committed to agency discretion by law” [4]. The Ninth Circuit also granted the plaintiffs a preliminary injunction that preserved DACA. They found that the plaintiffs were “likely to win on the merits of their arguments, they would suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in the plaintiffs’ favor, and the injunction is in the public interest” [4]. 

Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) went to the Supreme Court where the justices issued a 5-4 opinion that the Department of Homeland Security’s decision to recede DACA is reviewable and that the decision was sudden and in violation of the APA. Since DACA is not just a policy but a program for immigration relief, under the APA, its actions are subject to judicial review. Furthermore, under the APA an agency must provide “reasoned analysis” for its actions [4]. The court determined that the Department of Homeland Security failed to consider policy alternatives, and did not evaluate the consequences of eliminating the DACA Memorandum. 

In the majority opinion, Chief Justice John Roberts wrote that there was not a plausible case that the rescission was discriminatory and violated the equal protection guarantee of the Fifth Amendment. However, Justice Sonia Sotomayor dissented in this part and argued that it was premature to dismiss the respondents’ equal protection claims and that the case should remain open to allow the respondents to develop those claims. Justice Clarence Thomas also issued an opinion, concurring in part and dissenting in part. Justice Thomas agreed with the rejection of the equal protection claim but argued that because the Obama administration’s implementation of DACA was unlawful, the DHS’s decision to rescind the program was reasonable [4]. Justice Brent Kavanaugh argued that the memorandum written by DHS Secretary Nielson offered enough of a justifiable reason to rescind DACA [4].

While the ruling of the Supreme Court on Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) offers a positive outlook for undocumented immigrants, it also leaves room for the possibility of recision.  The benefits of DACA remain in place, but the ruling does not completely maintain the status of DACA as the court only preserved DACA based on the DOH’s failure to comply with the proper administrative steps when rescinding DACA. It is possible that as a lame duck the Trump administration could still challenge DACA with the proper reasoning and administrative steps, and President Trump has said he will in order to keep undocumented immigrants out of the U.S. [5] The future still remains uncertain for DACA recipients, which is why the DREAM Act should be implemented as a law passed through Congress. Implementing the DREAM Act as law would provide security to thousands of undocumented workers.

In addition to individual security, granting undocumented immigrants citizenship would vastly improve our economy. Not only would legal immigrants be eligible to pay for taxes to support programs like Medicaid and Social Security, but they also account for approximately one-third of workers in certain industries [6]. Undocumented immigrants occupy a majority of low-skill labor as many natural-born citizens are not willing to take these jobs. Research finds that these immigrants would be incredibly difficult to replace. According to Harvard economist George Borjas, “immigration improves labor market efficiency,” [6] as efficiency gains due to immigration are “between $5 billion and $10 billion annually” [6]. The Center for American Progress found that if DACA is terminated, it would eliminate at least $433.4 billion from the GDP over the course of a decade [7]. Further, if the 2014 bill providing a pathway for undocumented immigrants to gain citizenship had passed, it would have helped “reduce the deficit by $197 billion, increased investment by 2%, and increased overall employment by 3.5% by the year 2023” [8]. To put it briefly, granting undocumented immigrants citizenship would outweigh the costs as these immigrants pay taxes, contribute to welfare programs, and work in lower-paying jobs, all of which help improve our economy.

Although the Supreme Court’s ruling in Department of Homeland Security v. Regents of the University of California, 591 U. S. 3 (2020) provided a small and perhaps temporary victory for DACA recipients, permanent legislation is necessary to protect undocumented immigrants. Current programs supporting undocumented immigrants are too often left at the discretion of the executive branch, forcing programs into constant uncertainty. Most young undocumented immigrants grow up in the U.S., go to school in the U.S., have friends and family in the US, and have even started their own businesses in the U.S. Undocumented immigrants deserve an efficient and guaranteed pathway to citizenship, and if Congress were to grant permanent citizenship through the DREAM Act, they would contribute to programs that help U.S. citizens and would bolster the economy even more than they already do now. 

notes:

1. “How many undocumented immigrants are in the United States and who are they?” November 12, 2019. https://www.brookings.edu/policy2020/votervital/how-many-undocumented-immigrants-are-in-the-united-states-and-who-are-they/, accessed November 1, 2020.

2. “The Dream Act, DACA, and Other Policies Designed to Protect Dreamers.” American Immigration Council, August 27, 2020, https://www.americanimmigrationcouncil.org/research/dream-act-daca-and-other-policies-designed-protect-dreamers, accessed November 1, 2020.

3. "Department of Homeland Security v. Regents of the University of California." Oyez. Accessed November 1, 2020. https://www.oyez.org/cases/2019/18-587.  

4. “Summary of the Administrative Procedure Act.” United States Environmental Agency. Accessed November 1, 2020. https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20

5. “Congress should exercise its independence: Pass immigration reform and provide help for DREAMers.” Des Moines Register. July 2, 2020. https://www.desmoinesregister.com/story/opinion/editorials/2020/07/02/daca-dreamers-immigration-reform-congress-should-do-job-editorial/3278859001/, accessed November 1, 2020. 

6. Arloc Sherman, Danilo Trisi, Chad Stone, Shelby Gonzales, and Sharon Parrott, “Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s ‘Public Charge’ Rule Rationale.” Center on Budget and Policy Priorities. August 15, 2019, https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations, accessed November 1, 2020.

7. Philip E. Wolgin, “The High Cost of Ending Deferred Action for Childhood Arrivals,” Center for American Progress, November 18, 2016. https://www.americanprogress.org/issues/immigration/news/2016/11/18/292550/the-high-cost-of-ending-deferred-action-for-childhood-arrivals/, accessed November 1, 2020.

8. “The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, Congressional Budget Office, June 2013, https://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf, accessed November 1, 2020.

Bibliography:

Arloc Sherman, Danilo Trisi, Chad Stone, Shelby Gonzales, and Sharon Parrott, “Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s ‘Public Charge’ Rule Rationale.” Center on Budget and Policy Priorities. August 15, 2019, https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations, accessed November 1, 2020.

"Department of Homeland Security v. Regents of the University of California." Oyez. Accessed November 1, 2020. https://www.oyez.org/cases/2019/18-587. 

“Congress should exercise its independence: Pass immigration reform and provide help for DREAMers.” Des Moines Register. July 2, 2020. https://www.desmoinesregister.com/story/opinion/editorials/2020/07/02/daca-dreamers-immigration-reform-congress-should-do-job-editorial/3278859001/, accessed November 1, 2020. 

“How many undocumented immigrants are in the United States and who are they?” November 12, 2019. https://www.brookings.edu/policy2020/votervital/how-many-undocumented-immigrants-are-in-the-united-states-and-who-are-they/, accessed November 1, 2020.

“Summary of the Administrative Procedure Act.” United States Environmental Agency. Accessed November 1, 2020. https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20

Philip E. Wolgin, “The High Cost of Ending Deferred Action for Childhood Arrivals,” Center for American Progress, November 18, 2016. https://www.americanprogress.org/issues/immigration/news/2016/11/18/292550/the-high-cost-of-ending-deferred-action-for-childhood-arrivals/, accessed November 1, 2020.

“Summary of the Administrative Procedure Act.” United States Environmental Agency. Accessed November 1, 2020. https://www.epa.gov/laws-regulations/summary-administrative-procedure-act#:~:text=The%20Administrative%20Procedure%20Act%20

“The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, Congressional Budget Office, June 2013, https://www.cbo.gov/sites/default/files/cbofiles/attachments/44346-Immigration.pdf, accessed November 1, 2020. 

“The Dream Act, DACA, and Other Policies Designed to Protect Dreamers.” American Immigration Council, August 27, 2020, https://www.americanimmigrationcouncil.org/research/dream-act-daca-and-other-policies-designed-protect-dreamers, accessed November 1, 2020.

Our Current Electoral System Fails Domestic Violence Survivors

By: Maddie Brown

Edited by: John Perales Jr.

Survivors of domestic violence should not be forced to choose between safe housing and participating in elections.

The most dangerous moment for a survivor of domestic violence is the moment they choose to leave the abusive situation [1]. Finding shelter becomes a primary concern, especially amidst a pandemic, when domestic violence is on the rise and a safe place to live can mean the difference between health and infection [2]. Even before the pandemic, 57 percent of homeless women reported that the immediate cause of their displacement was domestic violence [3]. Thus, when secure housing is found, it is all the more valuable.

Unknown to many, however, is that political participation jeopardizes safe housing by publicizing survivors’ addresses, making their locations known to their abusers. In order to avoid exposure, many survivors of domestic violence, like Midori Davidson, struggle with the choice to vote. Davidson recalls that she was “afraid to vote” because she was paranoid about what would happen if her abuser found her online [4]. She explains that it was “the first time I had the freedom to do something that I’m supposed to do, but I didn’t want that freedom to be snatched.” Although Davidson eventually cast her ballot, thousands of survivors like her are still shut out of the political process.  

This is unacceptable. States should protect the privacy of their citizens, including survivors. As a nation, we must anonymize voters’ registration information to ensure survivors are not forced to choose between their physical safety and political self-determination.

Nearly every state makes voter registration information public. This information is part of the public record, and in the name of transparency, fully accessible to the public. Full names, birth dates, and addresses are usually available for purchase by political campaigns and are aggregated by third party databases for further use [5]. But at the same time, these records are used as political tools, public voter records enable abusers to track down and harm survivors.

By focusing on transparency rather than confidentiality, state publication of voter information effectively disenfranchises survivors who’ve managed the feat of securing safe housing. In addition, survivors of domestic violence are disproportionately members of marginalized groups, whose voices are already minimized in the political arena. Indigenous women experience the highest rates of domestic violence, closely followed by Black women [6] [7]. Sixty-one percent of bisexual women will face domestic violence in their lifetimes, as well as 44 percent of lesbian women [8]. By disproportionately harming marginalized communities, public voter records act as yet another form of voter suppression [9].

This is a cruel irony, as the National Resource Center on Domestic Violence states “the number one thing [we] can do to address domestic and sexual violence is commit to voting” for policies that will affect change in the lives of survivors, from affordable housing to funding for community crisis centers [10]. Without protection, however, survivors lose this avenue to determine their future. Survivors have already experienced a loss of control, and that abuse continues through their disenfranchisement.

In an attempt at a solution, 40 states have instituted Address Confidentiality Programs (ACPs) that provide survivors with an alternate address for official state matters. These programs, however, vary state by state, and some do not provide confidentiality for voting purposes. In New Mexico, ACP registration requires a $25 fee, which could be prohibitive for many economically disadvantaged survivors [11]. In Wisconsin, a survivor applying for their ACP would have to file four discrete forms, which must be completed in person [12].

If these procedural barriers weren’t enough, for all ACPs, the burden is on survivors to prove that they have been affected by domestic violence. Survivors must present a sworn statement that they are a survivor of abuse, forcing them to voice their trauma for protection [13]. Furthermore, in states like Tennessee and Kentucky, the survivor must file a protection order against their abuser, or even win a conviction in a court of law [14]. This makes ACPs prohibitive for many survivors who choose to not interact with the judicial system, either due to a lack of resources, knowledge that abusers are rarely convicted, or an inherent lack of trust in a system that has no interest in protecting their needs.

Furthermore, these programs are so underpublicized that they are rendered ineffective. Amy Miller, director of Violence Free Colorado, said of her state’s program, “I’ve never been told that it was an option when I’ve registered to vote in this state” [15]. The data reflects this: as of 2018 in Colorado, only 4,500 people were registered with the state’s ACP program, while 16,700 cases of domestic violence were reported to Colorado police [16] [17]. In North Carolina, only 900 people were enrolled, even though, in 2014, almost 2,000 survivors were aided by state services in a single day [18] [19]. These disparities are even larger when considering the amount of violence that goes unreported and unseen.

Survivors deserve both safe housing and a voice in democratic elections. A system that is designed to jeopardize one in order to maintain the other is unjustifiable. Voter registration lists must be made private, or at the very least, addresses should not be part of the publicly available data set. The burden should not be on survivors to prove their need for privacy and security; instead, it should be on the campaigns to provide a valid reason as to why they need to access this personal information. 

The government must protect citizens from harm at home: a supposed private, secure space, and a foundation of American life. Especially now, amid the pandemic, safe housing provides more than privacy — it is a barrier against the virus-infected outside world and can mean the difference between life and death. 

As the system exists now, survivors are forced to voice their trauma to gain protection, a substantial burden, which virtually precludes this marginalized group from political participation. We must honor survivors’ rights to self-determination and safety in their homes, and automatically anonymize voter registration lists on a national level. 

notes:

1. “NCADV | National Coalition Against Domestic Violence.” https://ncadv.org/why-do-victims-stay. Accessed 6 Jan. 2021.

2. Megan L. Evans, M.D., M.P.H., A Pandemic within a Pandemic — Intimate Partner Violence during Covid-19. https://www.nejm.org/doi/full/10.1056/NEJMp2024046. Accessed 1 June 2021.

3. Safe Housing Partnerships. https://safehousingpartnerships.org/sites/default/files/2017-05/SHP-Homelessness%20and%20DV%20Inforgraphic_1.pdf. Accessed 6 Jan. 2021. 

4. Devna Bose. “‘Don’t Let Them Take Your Voice Away’: Domestic Violence Survivors Face Voting Challenges.” The Charlotte Observer, 9 Oct. 2020, https://www.charlotteobserver.com/news/politics-government/election/article246265510.html.

5. Scottie Andrew. “For Abuse Victims, Registering to Vote Brings a Dangerous Tradeoff.” CNN, 27 Oct. 2020, https://www.cnn.com/2020/10/27/us/domestic-violence-voting-election-privacy-trnd/index.html.

6. 2018 NCVRW Resource Guide: Intimate Partner Violence Fact Sheet. https://ovc.ojp.gov/sites/g/files/xyckuh226/files/ncvrw2018/info_flyers/fact_sheets/2018NCVRW_IPV_508_QC.pdf. Accessed 6 Jan. 2021.

7. 2018 NCVRW Resource Guide. Accessed 6 Jan. 2021.

8. 2018 NCVRW Resource Guide. Accessed 6 Jan. 2021.

9. Matt DeRienzo. “Analysis: Voter Suppression Never Went Away. The Tactics Just Changed. – Center for Public Integrity.” Center for Public Integrity, 28 Oct. 2020, https://publicintegrity.org/politics/elections/ballotboxbarriers/analysis-voter-suppression-never-went-away-tactics-changed/.

10. Danielle Root. “Obstacles to Voting for Survivors of Intimate Partner Violence - Center for American Progress.” Center for American Progress, 1 Nov. 2018, https://www.americanprogress.org/issues/democracy/reports/2018/11/01/460377/obstacles-voting-survivors-intimate-partner-violence/.

11. Address Confidentiality Laws by State. Apr. 2020, https://nnedv.org/wp-content/uploads/2019/07/Library_Safety_Net_ACP_Chart_April_2020.pdf.

12. Address Confidentiality Laws by State. Apr. 2020.

13. Address Confidentiality Laws by State. Apr. 2020.

14. Address Confidentiality Laws by State. Apr. 2020.

15. Danielle Root. “Obstacles to Voting for Survivors of Intimate Partner Violence - Center for American Progress.” Center for American Progress, 1 Nov. 2018, https://www.americanprogress.org/issues/democracy/reports/2018/11/01/460377/obstacles-voting-survivors-intimate-partner-violence/.

16. Danielle Root. “Obstacles to Voting for Survivors of Intimate Partner Violence” 

17. National Coalition Against Domestic Violence. Domestic Violence in Colorado. https://assets.speakcdn.com/assets/2497/colorado_2019.pdf. Accessed 6 Jan. 2021.

18. Devna Bose. “‘Don’t Let Them Take Your Voice Away’: Domestic Violence Survivors Face Voting Challenges.” The Charlotte Observer, 9 Oct. 2020, https://www.charlotteobserver.com/news/politics-government/election/article246265510.html.

19. National Coalition Against Domestic Violence. Domestic Violence in North Carolina. 2019, https://assets.speakcdn.com/assets/2497/north_carolina_2019.pdf.

Bibliography:

Evans, M.D., M.P.H., Megan L. A Pandemic within a Pandemic — Intimate Partner Violence during Covid-19. https://www.nejm.org/doi/full/10.1056/NEJMp2024046. Accessed 6 Jan. 2021.

2018 NCVRW Resource Guide: Intimate Partner Violence Fact Sheet. https://ovc.ojp.gov/sites/g/files/xyckuh226/files/ncvrw2018/info_flyers/fact_sheets/2018NCVRW_IPV_508_QC.pdf. Accessed 6 Jan. 2021.

Address Confidentiality Laws by State. Apr. 2020, https://nnedv.org/wp-content/uploads/2019/07/Library_Safety_Net_ACP_Chart_April_2020.pdf.

Andrew, Scottie. "For Abuse Victims, Registering to Vote Brings a Dangerous Trade Off." CNN, 27 Oct. 2020, https://www.cnn.com/2020/10/27/us/domestic-violence-voting-election-privacy-trnd/index.html.

Bose, Devna. "‘Don’t Let Them Take Your Voice Away’: Domestic Violence Survivors Face Voting Challenges." The Charlotte Observer, 9 Oct. 2020, https://www.charlotteobserver.com/news/politics-government/election/article246265510.html .

DeRienzo, Matt. "Analysis: Voter Suppression Never Went Away. The Tactics Just Changed. –Center for Public Integrity." Center for Public Integrity, 28 Oct. 2020, https://publicintegrity.org/politics/elections/ballotboxbarriers/analysis-voter-suppression-never-went-away-tactics-changed/.

National Coalition Against Domestic Violence. Domestic Violence in Colorado. https://assets.speakcdn.com/assets/2497/colorado_2019.pdf. Accessed 6 Jan. 2021.

---. Domestic Violence in North Carolina. 2019, https://assets.speakcdn.com/assets/2497/north_carolina_2019.pdf.

"NCADV | National Coalition Against Domestic Violence." Logo, https://ncadv.org/why-do-victims-stay. Accessed 6 Jan. 2021.

Root, Danielle. "Obstacles to Voting for Survivors of Intimate Partner Violence - Center for American Progress." Center for American Progress, 1 Nov. 2018, https://www.americanprogress.org/issues/democracy/reports/2018/11/01/460377/obstacles-voting-survivors-intimate-partner-violence/.

Safe Housing Partnerships. https://safehousingpartnerships.org/sites/default/files/2017-05/SHP-Homelessness%20and%20DV%20Inforgraphic_1.pdf. Accessed 6 Jan. 2021.